The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge.
To the HONORABLE JOHN E. SPRIZZO, United States District Judge.
The complaint in this social security action was filed on May 17, 2002. On December 3, 2002, defendant filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the ground that the action is time barred. On December 9, 2002, the Court issued an order directing plaintiff Maria Vargas ("Vargas") to file a response to the motion by January 6, 2003. Vargas failed to submit a response to the motion by the due date, and the Court's attempts to reach her by telephone were unsuccessful. Thereafter, on March 3, 2003, the Court issued a second order for Vargas to file her response or show cause by March 18, 2003, why her complaint should not be dismissed. A review of the record indicates that to date, she still has not filed a response to defendant's motion. Because Vargas has failed to pursue her claim by defending its dismissal, and because she failed to comply with the Court's orders despite the warning of dismissal, I respectfully recommend that the above-entitled action be DISMISSED without prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Rule 41(b) of the Federal Rules of Civil Procedure provides, in relevant part, "[f]or failure of the plaintiff to prosecute or to comply with . . . any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." Under Rule 41(b), plaintiff has an obligation to diligently prosecute her case. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982); see also Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993). Thus, "[c]ompletely aside from his failure to comply with the order, a dismissal is justified for [plaintiff's] failure to prosecute at all." Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 667 (2d Cir. 1980). "A plaintiff's lack of diligence alone is enough for dismissal." West v. City of New York, 130 F.R.D. 522, 526 (S.D.N.Y. 1990).
A district court has the inherent power to dismiss a case, sua sponte, for lack of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962); Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 66 (S.D.N.Y. 1989) (citing Harding v. Fed. Reserve Bank of New York, 707 F.2d 46 (2d Cir. 1983)). The Supreme Court explained that such authority is governed "by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. at 630-31. The Second Circuit, however, has added a caveat to this discretionary power, cautioning that dismissal under Rule 41(b) "is a harsh remedy and is appropriate only in extreme situations." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citing Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988). It has further advised district courts to "be especially hesitant to dismiss for procedural deficiencies where . . . the failure is by a pro se litigant." Id. (citing Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)).
Accordingly, the Second Circuit has detailed the following factors that a court should consider before dismissing a case for failure to comply with a court order:
(1) the duration of the plaintiff's failure to comply
with the court order, (2) whether plaintiff was on
notice that failure to comply would result in
dismissal, (3) whether the defendants are likely to be
prejudiced by further delay in the proceedings, (4) a
balancing of the court's interest in managing its
docket with the plaintiff's interest in receiving a
fair chance to be heard, and (5) whether the judge has
adequately considered a sanction less drastic than
Id.; see also LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206
, 209 (2d Cir. 2001) (citing Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d at 932.
In the instant case, the record indicates that in failing to respond to defendant's motion, Vargas has not defended or otherwise pursued her claim. Nearly six months have passed since defendant filed the motion to dismiss. Vargas has failed to comply with this Court's order directing her to show cause why her complaint should not be dismissed, and has failed to otherwise contact the Court. Therefore, the Court concludes that her noncompliance warrants dismissal of the action. Given the plaintiff's pro se status, the Court deems it proper in this case that dismissal be without prejudice.
Based upon the foregoing reasons, I respectfully recommend that Vargas's claim be DISMISSED without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Am, 474 U.S. 140, 150 ...