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July 26, 2004.


The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


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 the court.
  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 Aircraft ...

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