The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge
Before us is Defendants' letter motion to dismiss Plaintiff's complaint with prejudice pursuant to Rules 41 and 37 of the Federal Rules of Civil Procedure for failure to prosecute or, in the alternative, for failure to cooperate with discovery. For the reasons that follow, that motion is GRANTED.
On approximately May 13, 2002, Plaintiff Melvin Perez ("Plaintiff" or "Perez") filed his complaint, alleging violations of his rights under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments of the United States Constitution. On approximately May 31, 2002, Defendant City of New York ("Defendant" or "the City") wrote to Plaintiff's counsel requesting that Plaintiff execute a release for the unsealing of Plaintiff's criminal records, sealed pursuant to Criminal Procedure Law § 160.50. The City repeated its request on June 12, July 8, and July 19, 2002. The Plaintiff never responded. The City claims that these records are necessary for it to respond to the complaint and, moreover, that it cannot obtain the records without the release.
On August 29, 2002, the City wrote to this Court, requesting that we 1) issue an order compelling Plaintiff to execute the unsealing release and 2) extend the City's time to serve and file a response to the complaint until thirty days following its receipt of the release. On September 19, 2002, Plaintiff's counsel responded with his own letter to the Court, requesting thirty days to locate the Plaintiff and, if that failed, requesting that we dismiss the case without prejudice. On November 6, 2002, almost sixty days later, the City wrote to the Court requesting that we dismiss the case with prejudice pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure. We construed this letter as a motion to dismiss and, in an Order issued on November 13, 2002, set forth a briefing schedule. Plaintiff's counsel responded by letter on November 18, 2002, in which he took the position that the case should only be conditionally dismissed without prejudice so that the case may be "restored" if the Plaintiff is located within the next six months.
Defendant moves to dismiss this action pursuant to Rules 37*fn1 and 41 for failure to comply with the rules of discovery and failure to prosecute. For the following reasons, defendant's motion is granted and this case is dismissed. Such dismissal will be stayed for a period of thirty days from the date of this Opinion to afford Plaintiff one final opportunity to cure his non-compliance.
Under Rule 41, a defendant may move for dismissal of an action for plaintiff's failure to prosecute. See FED.R.CIV.P. 41(b). It is well established that "a district court has the power to dismiss an action for failure to prosecute and that such a dismissal will be reviewed only for abuse of discretion." Link v. Wabash Railroad Co. (1962) 370 U.S. 626, 632-33. However, "dismissal is a `harsh remedy to be utilized only in extreme situations.'" Romandette v. Weetabix Co., Inc. (2d Cir. 1986) 807 F.2d 309, 312 (quoting Theilmann v. Rutland Hosp., Inc. (2d Cir. 1972) 455 F.2d 853, 855 (per curiam)). Under Rule 41, five factors are used to determine whether dismissal is warranted: (1) the duration of 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) whether the district judge has taken care to strike the balance between alleviating court congestion and protecting a party's right to due process and a fair chance to be heard, and (5) whether the judge has adequately assessed the efficacy of lesser sanctions. Shannon v. General Elec. Co. (2d Cir. 1999) 186 F.3d 186, 193.
Plaintiff has failed, for ten months, to produce the release necessary for Defendant to answer the complaint. While a delay of ten months may not be long when compared with delays in other cases, see, e.g., Dodson v. Runyon (S.D.N.Y. 1997) 957 F. Supp. 465 (plaintiff had failed to take any action for five years), we note that Plaintiff's failure in this case began within two weeks of the filing of the complaint and has delayed the filing of the answer — which should have occurred within the first month — by nine months.
Second, Plaintiff's letter response to Defendant's request for a release indicates that Plaintiff was not only on notice that dismissal would result from his continued failure to provide the necessary release, but that plaintiff's counsel would "agree to conditional dismissal without prejudice if the plaintiff cannot be located." (Letter from Sheehan to the Court of 9/19/02; see also Letter from Sheehan to the Court of 12/11/02.) These sentiments were reiterated in the one paragraph letter that defense counsel submitted to the Court in response to our Order, where plaintiff's counsel stated that it was his position that the case should only be conditionally dismissed and then explained the steps his office has taken to locate plaintiff. (Letter of Sheehan to the Court of 11/18/02.) This letter was never served upon Defendant, nor was Defendant even mailed a copy of same. (Letter of Graziadei to the Court of 12/11/02.) It is noteworthy that Plaintiff does not oppose dismissal, but rather opposes a dismissal with prejudice.
With regard to the third factor, we presume as a matter of law that Defendant will be prejudiced by further delay. See Peart v. City of New York (2d Cir. 1991) 992 F.2d 458, 462 ("prejudice resulting from unreasonable delay may be presumed as a matter of law.") As with all instances of delay, Plaintiff's delay here compromises Defendant's ability to defend the instant litigation. Further delay will simply further compromise Defendant's ability to mount a defense to Plaintiff's allegations. As with the first two factors, we find that this factor weighs in favor of granting defendant's motion to dismiss.
The fourth factor similarly weighs in favor of dismissal. The Second Circuit has stated that "the primary rationale underlying dismissal under [Rule] 41(b) is the failure of plaintiff in his duty to process his case diligently." Levall Theatre Corp. v. Loews Corp. (2d Cir. 1982) 682 F.2d 37, 43. The plaintiff's duty to pursue his case bears on both the question of fairness and the question of judicial resources. See Chira v. Lockheed Aircraft Corp. (2d Cir. 1980) 634 F.2d 664, 668 (the plaintiff's duty is designed to achieve "fairness to other litigants, whether in the same case or merely in the same court as competitors for scarce judicial resources . . .). Plaintiff was on notice,*fn2 beginning in September 2002, that further inaction could result in dismissal. At that time, his attorney requested that dismissal not occur for an additional thirty days while plaintiff's counsel attempted to locate his client. (Letter from Sheehan to the Court of 9/19/02.) While plaintiff's counsel alleges he has tried to contact his client, he has nonetheless failed to do so, rendering it impossible for the case to be pursued. Any claim that Plaintiff's due process rights were ...