The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
On January 30, 2004, Magistrate Judge Henry B. Pitman issued a
Report and Recommendation ("Report") recommending that
plaintiff's complaint be dismissed with prejudice pursuant to
Fed.R.Civ.P. 41(b) for failure to timely file a pretrial
order. The Court received plaintiff's objections, dated February
13, 2004, but file stamped February 17, 2004, urging the Court to
reject the Report. The Court also received defendant's responses
to plaintiff's objections, as well as supplemental submissions
from both plaintiff and defendant. For the reasons stated herein,
the Court reluctantly declines to adopt the Report.
The district court adopts a Magistrate Judge's report and
recommendation when no clear error appears on the face of the
record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y.
1985). However, the court is required to make a de novo
determination of those portions of a report to which objection is
made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the
record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Badhan
v. Lab. Corp. of Am., 234 F. Supp.2d 313, 316 (S.D.N.Y. 2002).
The court may then accept, reject, or modify in whole or in part
recommendations of the Magistrate Judge. See Nelson,
618 F. Supp. at 1189. If a party fails to object to a report within 10
days of being served with the report, that party waives their
right to object and appellate review of the report, absent
unusual circumstances, is precluded. See United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Applying the rules guiding the timeliness of appeals, the
plaintiff had 10 days to file and serve objections after the
magistrate judge's order was entered (February 2, 2004). See IUE
IFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.
1993). Day 1 was the day after entry or February 3. See, e.g.,
id. (calculating days). Because the time period involved is less
than 11 days, intermediate Saturdays, Sundays and legal holidays
do not count. Fed.R.Civ.P. 6(e); see also id. Finally, Fed.
R. Civ. P. 6(e) provides for an additional three days where
service is by mail, as is the case here. Thus, the plaintiff had
until February 23, 2004, to file objections.*fn1 See, e.g.,
IUE, 9 F.3d at 1054 (calculating days).
Defendant argues that the Court should hold plaintiff's
objections untimely because the objections do not appear to have
been docketed. (See Def.'s Surreply in Resp. to Pl.'s
Supplemental Mem. at 2.) Plaintiff alleges that, on February 17,
2004, "service was made upon the Clerk's Office by stamping a
copy of [the] objections and handing same to the court officer
pursuant to his instructions". (Pl.'s Supplemental Mem. of Law at
3 (hereinafter "Reply").) Plaintiff also alleges that a copy of
the objections was mailed to defendant and that time stamped courtesy
copies were provided to Magistrate Judge Pitman and to the Hon.
Lewis A. Kaplan, United States District Judge for the Southern
District of New York, who was the presiding district court judge
before the matter was transferred to this Court. (See id.)
However, plaintiff admits that he "cannot account for why the
copy of its objections served upon the Clerk's office does not
appear on the docket sheet for this matter". (Id.)
When the matter was transferred to this Court, this Court
received the copy of the objections provided to Judge Kaplan. The
Court can confirm plaintiff's claim to have provided Judge Kaplan
with a time stamped copy, which on its cover and first page bears
a stamp stating "RECEIVED 04 FEB 17 PM 6:08 DISTRICT COURT SDNY".
Although this stamp is not proof of proper filing, the stamp
tends to corroborate plaintiff's story. Given this evidence and
the fact that February 17 would have been almost a week before
the deadline for plaintiff to timely file objections, the Court
finds that plaintiff's objections are timely.
Whether to dismiss plaintiff's complaint pursuant to Rule 41(b)
is decidedly a more complicated issue, which the Court must
review de novo. See Jones v. Reid, No. 85 Civ. 4515 (PKL), 1990
WL 164960, at *2 (S.D.N.Y. Oct. 25, 1990). Dismissal of a case
for failure to prosecute lies within the discretion of the court.
See Ali v. A&G Co., 542 F.2d 595, 596 (2d Cir. 1976). Yet,
since it is a drastic remedy, dismissal is reserved for rare
occasions. See Peart v. City of New York, 992 F.2d 458, 461 (2d
Cir. 1993). In determining whether to dismiss, a court should
consider: (1) the duration of plaintiff's failures; (2) whether
plaintiff had received notice that further delays would result in
dismissal; (3) whether defendant is likely to be prejudiced by further delay; (4) the need to alleviate court calendar
congestion versus a party's right to due process; and (5) whether
lesser sanctions would prove effective. See id.
In the present case, plaintiff was directed to submit a joint
pretrial order by February 10, 2003. Upon defendant's request,
Magistrate Judge Pitman extended this deadline by 60 days, making
the joint pretrial order due on April 11, 2003. The order
granting this extension stated that "NO FURTHER EXTENSIONS
EXCEPT FOR GOOD CAUSE SHOWN BY AFFIDAVIT" would be granted.
(Order of Oct. 29, 2002 (emphasis in original).)
Plaintiff not only failed to file a joint pretrial order by
April 11, 2003, but also failed even to ask for an extension of
time to file a joint pretrial order. Although the case did not
lay entirely dormant during the post-April deadline period, the
action remained adrift, without a management plan or trial
schedule in place, until November 2003. On November 12, 2003,
Magistrate Judge Pitman sua sponte issued an order stating:
I shall give plaintiff one final opportunity to file
these documents. Plaintiff is directed to file the
pretrial order . . . no later than December 12, 2003.
Plaintiff is warned that an unjustified failure to
file the pretrial order by December 12, 2003 will
result in the issuance of a report and recommendation
recommending that this matter be dismissed for
failure to prosecute.
Unfortunately, plaintiff's counsel was on vacation on November
12, 2003. In another turn of bad luck, plaintiff's counsel
allegedly returned from vacation with an illness that kept her
away from work until December 3, 2003. (See Reply at 6.)
On December 12, 2004 the day the joint pretrial order was due
plaintiff "contacted defendant's counsel to inform him that
although plaintiff had completed his [plaintiff's] part of the
pre-trial order, he [plaintiff] still required an extension of time to submit the joint pre-trial order," since
defendant had not had any input into the contemplated joint
order. (Id. at 5.)
Plaintiff's counsel then faxed a letter that day to Magistrate
Judge Pitman recounting her vacation and illness and stating:
The purpose of this letter is to request an extension
to submit the joint pre-trial order. . . . I have
completed a draft of my pretrial order, and have
informed [defense counsel]. However, in fairness to
him, we have decided that in light of the holidays,
we will require a month to submit the joint order to
Although defendant apparently did not raise objections to the
request for an extension, Magistrate Judge Pitman's denied the
request, stating that "[a]n attorney acts at her peril when she
chooses to take a vacation without first ensuring that all
deadlines will be met." (Order of Dec. 12, 2003.) The Report was
issued shortly thereafter.
This Court has no doubt that plaintiff's counsel behavior is
condemnable. After missing the extended April 11, 2003, deadline,
counsel apparently could not be bothered to seek another
extension or otherwise arrange for a management schedule. It does
seem that plaintiff's counsel was in fact on vacation when
Magistrate Judge Pitman issued the November 12 order and further
that counsel was ill immediately upon her return from vacation.
However, whatever sympathy plaintiff's counsel might have
garnered from her illness was squandered by her poor decision to
alert the Court and defense counsel of her difficulty in meeting
the pretrial order deadline on the day the order was due nine
days after plaintiff's counsel returned to work.
Plaintiff's counsel's actions threaten "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. 626, 630-31 (1962). Indeed, it is unclear what more Magistrate Judge Pitman could have done to
exercise this control and force plaintiff to timely file a joint
pretrial order. As this case shows, "[u]nless [judges] use the
clear power to impose the ultimate sanction when appropriate,
exhortations of diligence are impotent." Chira v. Lockheed