United States District Court, S.D. New York
January 14, 2004.
ADA RODRIGUEZ, et ano., Plaintiffs, -against- THE CITY OF NEW YORK, et al., Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
On April 14, 2003, well after the commencement of this action, the
Court entered a scheduling order requiring completion of discovery by
July 14, 2003 and the filing of a joint pretrial order by August 14,
2003. These deadlines were extended by 28 days by memo endorsement
dated July 9, 2003.
Plaintiffs then had a falling out with their counsel. By order dated
August 13, 2003, the Court granted their attorney's motion for leave to
withdraw, stayed the action until September 20, 2003 to enable
plaintiffs' to retain new counsel, and extended the discovery deadline
until December 1, 2003. These dates then were extended, by order dated
September 23, 2003, by another 60 days.
The Court was advised by letter dated December 9, 2003, copied to the
plaintiffs, that plaintiffs have not retained counsel and have done
nothing further in this matter. Plaintiffs did not respond to the letter.
Accordingly, on December 18, 2003, the Court directed plaintiffs to show
cause, on or before December 31, 2003, why this action should not be
dismissed for lack of prosecution.
Plaintiffs, by letter dated January 7, 2004, oppose dismissal. They
claim that they "have not received any of the Court's orders entered in
this action" save that of December 18, which they claim first to have
received on January 7, 2004. And while they claim that they are
proceeding pro se since the withdrawal of the attorney, the January 7,
2004 letter appears to have been drafted by an attorney.
The plaintiffs now have had many months in which to retain counsel.
They have not done so. The Court certainly does not assume that this is
their fault. Many prospective litigants in civil cases cannot find
counsel whom they can afford, and the availability of counsel willing and
able to take their cases free or on contingency bases is limited.
Nevertheless, plaintiffs do not have an unlimited right to subject any
defendant to the indefinite pendency of their lawsuit, with no ability to
move it to resolution, simply because the plaintiffs have not found a
lawyer. Plaintiffs must either proceed with
the action as best they can or suffer dismissal.*fn1
The Court will give plaintiffs the benefit of the doubt concerning
their professed ignorance of what has transpired in the action. Moreover,
the Pro Se Office stands ready to assist plaintiffs. Nevertheless, the
action will proceed as follows:
1. Plaintiffs are responsible for knowledge of and compliance with any
and all orders issued by the Court, regardless of whether they are mailed
to them by the Clerk or received through the mails. Orders are posted to
the docket sheet and available in the Clerk's Office. They are available
over the Internet through the Courtweb system, which is on the Court's
web site, the URL for which is <www.nysd.uscourts.gov.>
2. Regardless of whether plaintiffs find counsel, all fact discovery
in this action shall be concluded, and any expert reports served, on or
before June 1, 2004. Rebuttal expert reports, if any, shall be served no
later than June 22, 2004. Depositions of experts shall be concluded no
later than July 15, 2004.
3. The joint pretrial order, in the form prescribed in the individual
practices of the undersigned (which are available from the Clerk and at
the Court's Internet web site), and any motions for summary judgment
shall be filed on or before August 2, 2004. Plaintiffs shall furnish
defendants' counsel, no later than July 22, 2004, with their witness and
exhibit lists and contentions and their proposed statement of the issues
to be tried and proposed stipulations in order that the defendants may
complete the joint pretrial order.
4. Any failure to comply with this or any other order of this Court may
result in the imposition of sanctions, which may include dismissal of the
action with prejudice.