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GITTENS v. GARLOCKS SEALING TECHS.

October 2, 1998

STEVEN C. GITTENS, SR., Plaintiff,
v.
GARLOCKS SEALING TECHNOLOGIES, GARLOCKS, INC., Defendant.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 PROCEDURAL BACKGROUND

 The complaint in this action alleges disability discrimination by plaintiff's employer in violation of the Americans With Disabilities Act. Defendant moves for summary judgment. Defendant served its motion for summary judgment on March 20, 1998, supported by four affidavits, a Local Rule 56 Statement of Material Facts Not in Dispute, and a Memorandum of Law. On April 1, 1998, this court ordered that all papers in response to defendant's motion be filed by April 22, 1998. After plaintiff failed to respond, this court, sua sponte, granted plaintiff additional time to respond in an order entered June 24, 1998:

 
Plaintiff is directed to respond to defendant's motion for summary judgment by August 24, 1998. Failure to respond to the motion for summary judgment could result in defendant's motion being granted by default, that is, because of plaintiff's failure to respond to the motion.

 Well over six months have now passed since defendant filed its summary judgment motion. Plaintiff has not submitted any responding papers; he has not requested an extension of time to respond to the motion nor has he opposed the motion. He has not responded in any manner to counsel for defendant or to the court. For the reasons set forth below, the motion is granted, and the complaint is dismissed.

 DISCUSSION

 There exist several bases upon which to grant defendant's motion and to dismiss the complaint. These alternative bases for dismissal in this case are: (1) plaintiff's failure to prosecute; (2) plaintiff's failure to obey court orders; and (3) plaintiff's failure to show that there is a genuine issue as to any material fact.

 I. FAILURE TO PROSECUTE

 Rule 41(b) of the Federal Rules of Civil Procedure provides that an action may be dismissed "for failure of the plaintiff to prosecute or to comply with these rules or any order of court ...," and that "a dismissal under this subdivision ... operates as an adjudication upon the merits."

 Dismissal of an action for failure to prosecute is within the court's discretion. Nita v. Connecticut Dep't of Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962)); Harding v. Federal Reserve Bank of New York, 707 F.2d 46, 50 (2d Cir. 1983).

 I recognize that dismissal with prejudice is a harsh remedy, and should be used sparingly. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). Nonetheless, "'sanctions must be applied diligently both "to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent".'" Dukes v. New York City Police Comm'r, 129 F.R.D. 478, 481 (S.D.N.Y. 1990) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-64, 65 L. Ed. 2d 488, 100 S. Ct. 2455 (1980)).

 In considering whether dismissal is warranted, the court should consider:

 
[1] the duration of the plaintiff's failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] ... the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard ... and [5] ...the efficacy of lesser sanctions.

 Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988) (Rule 41(b) dismissal); see also, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).

 On the record before me, I find that dismissal under these provisions is warranted in this case. Plaintiff has ignored this court's orders and has failed to prosecute his action. Plaintiff's failure or refusal to comply with the Federal Rules of Civil Procedure and with court orders has been total. Gittens was first ordered to file his response to defendant's summary judgment motion over five months ago. Upon plaintiff's failure to comply with that order, this court issued a second order extending plaintiff's time to respond. Because the extension expired over one month ago and plaintiff has still not filed any response whatsoever, he has violated that order as well. It appears, therefore, that his failure in this regard is the result of wilfulness and bad faith. Moreover, this court's June 23 order quite clearly warned plaintiff that his failure to respond by August 24th could subject his action to dismissal. Indeed, defendant provided plaintiff a detailed warning in its notice of motion of the requirement that plaintiff respond to the motion and the consequences of his failure to do so. *fn1" The Second Circuit "has upheld 'the severe sanction of dismissal with prejudice ... even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal.'" Baba v. Japan Travel Bureau ...


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