United States District Court, E.D. New York
May 24, 2004.
JAMES E. FLAHERTY, Plaintiff, against C. STEPHEN HACKELING, in his official capacity as District Judge, Third District Court of County of Suffolk, Huntington Civil Part, BROOKHAVEN ANESTHESIA ASSOCIATES LLP, RICHARD SOKOLOFF, ESQ., Individually and in his Capacity as Attorney for BROOKHAVEN ANESTHESIA ASSOCIATES LLP, CHAD CLIFFORD, individually and in his official capacity as President and CEO of FLEET NATIONAL BANK, FLEET NATIONAL BANK A/K/A THE FLEET BANK ENTERPRISE, JOHN KANAS, Individually, and in his official capacity as CEO NORTH FORK BANK & TRUST/NORTH FORK BANK CORP., NORTH FORK BANK & TRUST/NORTH FORK BANK CORP. a/k/a THE NORTH FORK BANK ENTERPRISE, PARTY CONCEPTS, in its official capacity as EEOC administrative Respondent, to Plaintiff's EEOC Charge #160A301422, JOHN ASHCROFT, in his official capacity as United States Attorney General, as INTERVENER, pursuant to Fed.R.Civ.P. Rules 19, 20 and 2 § U.S.C. § 2403(a), ELLIOT SPITZER, in his official capacity as New York State Attorney General, as INTERVENER, pursuant to Fed.R.Civ.P. Rules 19, 20 and 28 U.S.C. Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
DECISION AND ORDER
Presently before the Court is a motion by the pro se
plaintiff James E. Flaherty (Flaherty" or the "plaintiff') pursuant to
Federal Rule of Civil Procedure ("Fed.R. Civ. P.") 60(b) for relief from
the Court's order dated November 14, 2003 dismissing the plaintiff's
complaint for failure to prosecute.
Flaherty commenced this action on August 12, 2003, with an 86 page
complaint consisting of more than 350 paragraphs and an additional 68
exhibits. After the defendants had already served and filed their
respective answers, on September 24, 2003, the plaintiff, without leave
of Court, served and filed an Amended Complaint. Along with other
procedurally incorrect filings by the plaintiff and requests for a
conference by several of the defendants, the Court was prompted to hold a
conference at which all of the parties would be present.
Pursuant to the directions from the Court, in a letter dated November
6, 2003, Constantine A. Despotakis, Esq., counsel for the defendant Chad
Clifford and Fleet National Bank, notified all of the parties in this case, including
Flaherty, that "the Court has scheduled a conference in this matter
before Judge Spatt at 9:00 a.m. on Thursday, November 13, 2003." This
letter was mailed to the plaintiff at the only address on file with the
Court and used in all of his communications, Post Office Box 257,
Riverhead, New York 11901.
On November 13, 2003 at 9:00 a.m., the Court held the above referenced
conference. Pursuant to the Court's direction, each defendant's counsel
personally appeared for this conference. However, despite having been
previously notified of the scheduled conference by the letter from Mr.
Despotakis, Flaherty failed to appear for the conference. Flaherty did
not notify the Court, either by mail or by telephone, that he would be
absent from the scheduled conference.
During the conference the Court attempted to contact Flaherty by
telephone at the number he previously provided to the Court. Flaherty
failed to answer the Court's telephone call and there was no answering
machine upon which to leave a message. At that time, the Court found that
it was reasonable to believe that the plaintiff had actual knowledge of
the scheduled conference and that the plaintiff willfully and
intentionally absented himself from the conference. Thereafter, the
defendants made an oral application to the Court to dismiss this action
for failure to prosecute. On November 14, 2003, pursuant to the Court's instructions, Mr.
Despotakis mailed to Flaherty a copy of a written "Notice of Dismissal of
Complaint and All Cross-Claims" notifying Flaherty, among other things,
that his complaint would be dismissed upon the Court's "so ordering" of
the Notice. On November 14, 2003, this Notice was "so-ordered" by the
On November 19, 2003, because of Flaherty's failure to appear at the
November 13, 2003 conference; the fact that he filed more than 20
lawsuits in the Eastern District over the past 15 years; and the fact
that the Court was continually faced with excessive, incoherent and
frivolous filings by Flaherty, the Court issued an Order informing the
plaintiff that it was contemplating issuing an order enjoining the
plaintiff from bringing any future proceedings in the Eastern District of
New York and preventing him from filing any papers in connection with
this case or any other cases pending in the Eastern District of New York
without prior permission from the Court. The Order directed Flaherty to
appear in Court on December 4, 2003, at 9:00 a.m., to show cause why such
an order should not be issued. This Order was mailed via regular first
class mail by chamber staff and by the Clerk of the Court. In addition,
the Clerk of the Court mailed a copy of this Order to the plaintiff by
regular first class mail and by certified mail, return receipt requested,
to the address on file with the Court. On December 4, 2003, once again, the plaintiff failed to appear in
Court. Flaherty failed to notify the Court, either by mail or by
telephone, that he would be absent from the scheduled hearing.
Thereafter, on December 9, 2003, an Order was issued enjoining Flaherty
from bringing any future proceedings in the Eastern District of New York
and from filing any papers in connection with this case or any other
cases pending in the Eastern District of New York without prior
permission of the Court.
On December 15, 2003, Flaherty submitted a letter to the Court
requesting, among other things, permission to file a motion pursuant to
Rule 60 seeking relief from the dismissal of his action. On December
23, 2003, this request was granted and was subsequently mailed to
Flaherty at his post office box address.
On January 22, 2004, Flaherty filed a motion pursuant to Rule 60 to
reconsider the Court's dismissal of this action for failure to prosecute.
In particular, Flaherty claims that his action should be reinstated
because his failure to appear at the November 13, 2003 and December 4,
2003 conferences constitutes "excusable neglect."
Rule 60 provides that a court may relieve a party from a final
judgment, order or proceeding due to, among other things, "(1) mistake,
inadvertence, surprise, or excusable neglect. . . ." In order to grant
such relief, the Court "must find that (1) the circumstances of the case
present grounds justifying relief and (2) the movant possess a
meritorious claim in the first instance." Jedrejcic v. Croation Olympic
Committee, 190 F.R.D. 60, 77 (E.D.N.Y. 1999) (quoting Cobos v.
Adelphi Univ., 179 F.R.D. 381, 385 (E.D.N.Y. 1998). "At a bare
minimum, a party who seeks relief from judgment on the basis of excusable
neglect must offer a convincing explanation as to why the neglect was
excusable." Cinron-Lorenzo v. Departamento de Asuntos del Consumidor,
et al, 312 F.3d 522, 527 (1st Cir. 2002) (citations omitted).
"Relief is generally granted `only upon a showing of exceptional
circumstances.'" Fetik v. New York Law School, No. 97 Civ.
7746, 1999 WL 459805, at *3 (June 29, 1999) (citing Mendell v.
Gollust, 909 F.2d 724, 731 (2d Cir. 1990). In determining whether to
grant or deny a motion under Rule 60(b), district courts have broad
discretion to consider the facts and the circumstances of each particular
case. Klein v. Williams, 144 F.R.D. 16, 18 (E.D.N.Y 1992).
In reaching its determination, the Court must consider "all relevant
circumstances surrounding the party's omission." Canfield v. Van Atta
Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997) (citations
omitted). Such circumstances "include prejudice to the adversary, the
length of the delay, the reason for the error, the potential impact on
the judicial proceedings, whether it was in the reasonable control of the
movant, and whether the movant acted in good faith." Fetik, 1999
WL 459805, at * 4 (internal quotation omitted).
In its analysis, the Court is mindful that the plaintiff's pro
se status means that his submissions should be held " `to less
stringent standards than formal pleadings drafted by lawyers.' " Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173
(1980) (quoting Haines v. Kerner, 404 U.S. 519, 520,
92 S.Ct. 594 (1972)). The Court recognizes that it must make reasonable
allowances so that a pro se plaintiff does not forfeit rights by virtue of
his lack of legal training. See Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir. 1983). Indeed, courts should "read the pleadings of a pro
se plaintiff liberally and interpret them `to raise the strongest
arguments that they suggest.'" McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994)). Nevertheless, pro se status "`does not
exempt a party from compliance with relevant rules of procedural and
substantive law.'" Traguth, 710 F.2d at 95) (quoting Birl
v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).
Flaherty contends that his injuries, namely his "shattered left knee"
which was caused when he was stuck by a motor vehicle while walking,
rendered him immobile November 3, 2003 through December 3, 2003. Because
of this alleged immobility, Flaherty contends that he was precluded from
traveling to the post office to retrieve his mail. As a result, Flaherty
contends that he did not receive notice of the November 13, 2003 or the
December 4, 2003 Court dates until three to four days prior to the
respective dates. Thus, Flaherty argues that his absences from Court is
"excusable neglect" and his case should be reinstated. Even assuming that Flaherty had three to four days notice of the Court
conferences, in the Court's view, at the very least, Flaherty was capable
of notifying the Court or his adversaries of his condition or of his
alleged inability to check his mail. A review of the case file reveals
that Flaherty was able to draft letters, travel to and from appointments
with his doctor and run personal errands during the relevant time period.
Flaherty's circumstances do not rise to the level of "excusable neglect."
First, in three separate letters from Flaherty to the Court dated
November 6, 2003, a date subsequent to his alleged accident, Flaherty
made no mention of any disability, injury or accident. In fact one of
these letters requested a status conference. See Letter from
Flaherty to Court dated November 6, 2003 ("By information and belief, a
status conference on the above referenced action and related actions may
expedite settlement of several related actions which the undersigned now
has pending before Your Honoe.") These letters were also sent to Mr.
Despotakis in an envelope postmarked November 10, 2003, Despotakis
Aff. in Opp. Exhibit 2, indicating that Flaherty was able to travel
to and from the post office to mail his letters.
Second, in support of the instant motion, Flaherty submitted a document
dated January 19, 2004 entitled "New York No-Fault Motor Vehicle
Insurance Law Report of Attending Physician or other Provider of Health
Service or Treatment" (the "Report"). See Plf. Fifth Reply Aff.
Ex. A. The Report states that the date of Flaherty's accident was July 17, 2003 and that Flaherty was treated by Frank S. Segreto, M.D.,
an orthopedist, on November 3, 2003. Moreover, an affidavit signed by Dr.
Segreto on January 12, 2004, states that he treated Flaherty on November
3, 2003, November 17, 2003, December 1, 2003 and January 12, 2004 at the
Southampton Hospital and at his office. Flaherty also received MRI
examinations on November 8, 2003 and November 15, 2003 at either
Segreto's office or Southhampton Hospital. Notably, none of these dates
conflicted with either of the two scheduled court dates. Nevertheless,
Flaherty fails to explain how he was able to travel to and from his
doctor's appointments but was unable to travel to the Court.
Third, attached to the above mentioned letter dated December 15, 2003,
was an "affirmation" in support of his "HEAP application" which was
signed by Flaherty on November 28, 2003. The affirmation indicates that
it was "delivered by hand" to the County of Suffolk Department of Social
Services in Riverhead, New York on December 2, 2003. The affirmation
further reveals that on November 17, 2003 Flaherty "personally delivered
[a HEAP application] to the Ronkonkoma DSS Office." Again, the Court
finds it interesting that Flaherty was able to deliver his HEAP materials
in person, yet at the same time was unable to attend the Court
conferences or at the very least, notify the Court that he would not be
able to attend.
In the Court's view, these above mentioned documents indicate that
Flaherty was able to travel to the post office, his doctor, and the
Department of Social Services Offices in Ronkokoma, New York and in Riverhead, New York. Thus, Flaherty's
claim that he was "immobile" and therefore unable to travel to the post
office to retrieve his mail is without merit, or at the least, has not
been supported by a "convincing explanation." See
Cinron-Lorenzo, 312 F.3d at 327.
Flaherty also claims that a letter from Dr. Devinney dated November 12,
2002 "requested a reasonable accommodation of at least 20 days notice for
scheduled court appearances," Plf. First Reply Mem. at 7. However, a
review of this letter requests that Flaherty be given twenty days to file
opposition papers this letter makes no mention of court
appearances. Not only was this letter written prior to the commencement
of this lawsuit, but thereafter, Flaherty has filed numerous letters,
motions, and memoranda of law, as well as initiated several new actions
against a multitude of defendants.
The fact that Flaherty has commenced more than 20 actions in the
Eastern District over the past 15 years, reveals that Flaherty is no
stranger to the Court and its rules. The fact that Flaherty failed to
appear for two court conferences of which he had adequate notice
demonstrates a blatant disrespect to the Court and to his adversaries.
The Court finds that the defendants were forced to incur unnecessary time
and expense for the two court appearances at issue. Moreover, Flaherty
has failed to offer a convincing explanation or exceptional circumstances
which warrant relief from the dismissal of this action. Because the circumstances of this case do not present grounds justifying
relief, the Court need not examine the merits of Flaherty's claims.
Based on the foregoing, it is hereby ORDERED, that the
plaintiff's motion pursuant to Rule 60 for relief from the Courts
November 14, 2003 order dismissing the complaint is DENIED.
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