United States District Court, S.D. New York
November 1, 2004.
PAUL F. VALENTINE, Plaintiff,
METROPOLITAN LIFE INSURANCE CO., Defendant.
The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
MEMORANDUM, OPINION AND ORDER
The parties having failed to arrive at an amicable resolution
in their most recent settlement negotiations before Magistrate
Judge Freeman, defendant Metropolitan Life Insurance Company
("MetLife") now moves to dismiss the case, pursuant to both
Fed.R. Civ. P. 41(b) and the equitable doctrine of laches. Plaintiff
Valentine opposes MetLife's motion, and cross-moves for partial
summary judgment. For the reasons stated below, I grant MetLife's
motion and deny Valentine's cross-motion.
This case began as an age discrimination lawsuit brought under
the Age Discrimination in Employment Act, as amended,
29 U.S.C. § 621 et seq. ("ADEA"), more than nineteen years ago. Valentine
is a former employee of MetLife who worked for the company for
approximately 29 years, until he was involuntarily terminated in
Valentine filed his complaint in April 1985. Pre-trial
procedures began. In early November 1986, I was informed by the
parties that a settlement was imminent. On November 6, 1986, I
issued an order of discontinuance, dismissing the case with
prejudice, but providing counsel for plaintiff the option of restoring the action to my docket within ninety
days if final settlement was not achieved.
As it turned out, by January of the following year the parties
had still failed to consummate a final settlement. Plaintiff's
counsel asked for more time, informing me that progress had come
to a halt, in part due to a recent heart attack he had suffered.
On January 27, 1987, I issued an order extending the deadline for
settlement negotiations an additional ninety days. By late April,
plaintiff's counsel once again asked for additional, unspecified
time to reach a settlement with the defendant. This time, taking
perhaps the less prudent course of action, I simply SO ORDERED
counsel's letter, without marking an ending point for
What happened next is in dispute. Plaintiff asserts that in
July 1987 he accepted a settlement offer from MetLife, through
MetLife's then counsel, Richard L. Steer. However, according to
plaintiff, due to an alleged miscalculation, defendant
subsequently withdrew that offer. Plaintiff asserts that he then
accepted other offers of settlement in 1989, 1991, and again in
1994 but each time, MetLife, through its counsel, later withdrew
the offer without a word of explanation. Plaintiff presents a
copy of a 1994 settlement agreement which he alleges had been
agreed upon by the parties but subsequently withdrawn by MetLife.
However, the copy of the 1994 agreement he presents is neither
signed nor dated by either of the parties or counsel.
Defendant denies that the parties ever came to an agreement, at
any time, regarding settlement. In other words, defendants assert
that there was no meeting of the minds. It follows then, and
defendant also alleges, that it never withdrew any agreed upon
settlements after the fact.
In any event, by April 1998, Steer received a letter from
plaintiff's present counsel, Timothy Quinn, seeking "one final
attempt" to amicably resolve the matter through settlement, which defendant opposed. No less than five years later, on June 6,
2003, I received a letter from Valentine requesting that I bring
the parties in for a settlement conference in order to "put this
case to rest." In a memorandum and order dated July 8, 2003 and
reported at 2003 WL 21576161, I granted plaintiff's request and
restored the case to the Court's active calendar. In a separate
order, I referred the case to a Magistrate Judge, once again for
settlement purposes. The case was assigned to Magistrate Judge
On March 17, 2004, Judge Freeman held a settlement conference
with the parties. Despite Judge Freeman's best efforts and utmost
patience in the matter, both during the conference and
afterwards, the parties once again failed to come to an
agreement, at which time the case was returned for my attention.
Having chronicled the course of events to present, there is an
additional factual issue in dispute that I must narrate.
Plaintiff alleges that some time in 1984, prior to filing his
complaint, and through a referral he obtained from a woman named
Carolyn Davis of Bevlin Personnel, he personally met with Steer
and discussed with him the possibility of pursuing an age
discrimination claim against MetLife.*fn1 Valentine asserts
that he met with Steer, at the offices of Epstein, Becker,
Borsody & Green in New York City, and spent 20 or 30 minutes
discussing the basis of his claim. After his presentation,
Valentine submits, Steer "excused himself for a few minutes and
when he returned, he announced that he could not take [the] case
because MetLife was a client of his office." Affidavit of Paul F.
Valentine, dated October 8, 2004, at ¶ 3.
Valentine made this allegation for the first time during a
March 17, 2004 settlement conference before Judge Freeman. A reasonable inference from
plaintiff's accusation is that Steer's subsequent representation
of MetLife was inappropriate. Plaintiff submits that for this
reason, inter alia, defendant has "unclean hands," and
therefore cannot resort to either Rule 41(b) or a common law
defense of laches.
Defendant vigorously denies Valentine's assertion that he met
with Steer prior to filing his complaint. Steer submits in an
affidavit of his own, "To the best of my knowledge, I had never
met Valentine prior to my firm being retained by MetLife to
represent it in the matter brought by Valentine." Affidavit of
Richard L. Steer, Esq. In Support of Defendant's Motion to
Dismiss, July 22, 2004, at ¶ 7. Steer also submits that he never
had the conversation with Valentine that the latter alleges.
Id. Furthermore, Steer notes that at the time Valentine filed
his complaint, in April 1985, Steer was of counsel to the law
firm of Stein, Davidoff & Malito, and not Epstein Becker. In the
same vein, he notes that this case was the first time either he
or his firm had represented MetLife, and that MetLife had first
retained his law firm to represent it on or about April 24, 1985.
Therefore, defendant asserts, it is unlikely that Steer would
have told Valentine, back in 1984, that MetLife was his firm's
client. Finally, defendant notes that Epstein Becker had a
general firm policy of not representing any plaintiffs in any
employment matters against their employers, further throwing cold
water on plaintiff's theory of unclean hands.
I currently have two motions before me. Defendant moves to
dismiss the complaint, both under Rule 41(b) and the equitable
doctrine of laches. Plaintiff cross-moves for partial summary
judgment. I now resolve both motions.
A. Rule 41(b) Defendant asserts that I should dismiss the case against it
pursuant to Rule 41(b), which states, "For failure of the
plaintiff to prosecute or to comply with these rules or any order
of court, a defendant may move for dismissal of an action or of
any claim against the defendant." The rule further states that in
the ordinary case, except for a dismissal for lack of
jurisdiction, a dismissal under this rule "operates as an
adjudication upon the merits." The Second Circuit has
characterized the remedy as "pungent, rarely used, and
conclusive," and cautioned district judges to "employ it only
when he is sure of the impotence of lesser sanctions." Chira v.
Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980).
Nonetheless, Chira went on to hold "the ultimate sanction
appropriate" and affirmed dismissal of the complaint with
prejudice because "the behavior of plaintiff and his attorney was
dilatory, obstreperous, and resolute." Id.
The Second Circuit has identified five factors pertinent to
whether a Rule 41(b) dismissal is appropriate in a given case.
(1) the duration of the plaintiff's failures, (2)
whether plaintiff had received notice that further
delays would result in dismissal, (3) whether the
defendant is likely to be prejudiced by further
delay, (4) whether the district judge has taken care
to strike the balance between alleviating court
calendar congestion and protecting a party's right to
due process and a fair chance to be heard, and (5)
whether the judge has adequately assessed the
efficacy of lesser sanctions.
Dodson v. Runyon, 86 F.3d 37, 40 (2d Cir. 1996) (citing cases).
Reviewing the record in light of these factors, I find that the
defendant's motion to dismiss for failure to prosecute should be
The delays caused by the plaintiff in this case are truly
staggering. After the parties twice failed to reach a settlement
between 1986 and 1987, the parties met only sporadically for
further settlement negotiations for the next several years in
1989, 1991, and 1994. At no time during this period did plaintiff ever attempt to restore his case to this
Court's active calendar. After 1994, four years passed before
plaintiff reached out to defendant, seeking "one final attempt"
at settlement. When defendant made clear, in no uncertain terms,
that it opposed settlement, plaintiff again did nothing for
another five years. Finally, in 2003, Valentine contacted the
Court. In total, more than sixteen years passed between time of
communication between the plaintiff and the Court, eighteen years
from the time he filed his complaint, and nineteen years since
MetLife terminated him.
Plaintiff offers no explanation, reasonable or otherwise, for
the length of his delays.*fn2 Instead, he submits that
during the intervening years he accepted several of defendant's
proposals for settlement, only to have the offers withdrawn after
acceptance. Even assuming, without deciding, that were so, the
proper course of action at that point would be to communicate
with the Court plaintiff's desire to get his case back on the
active docket. Plaintiff failed to do so in 1987, 1989, 1991,
1994, and 1998. When he did contact the Court in 2003, it was
five years since any communication between himself and the
Consequently, defendant would suffer serious prejudice by
further delay. As an initial matter, prejudice to MetLife "may be
presumed where a delay in prosecution is neither moderate [nor]
excusable." Dodson v. Runyon, 957 F.Supp. 465, 470 (S.D.N.Y.
1997), citing Peart v. City of New York, 992 F.2d 458, 462 (2d
Cir. 1993). In this case, prejudice need not merely be presumed,
since there is a grave certainty that "memories have faded . . . and
that witnesses who might once have been available may well not be
found." Dodson, 957 F.Supp. at 470. Four of the witnesses in
this case have since retired, and two have died. The whereabouts
of two others are unknown. More than twenty years have passed
since the key events surrounding Valentine's claims, and as
defendant notes, the type of claim that Valentine is seeking to
pursue frequently turns upon witness testimony, as opposed to
documentary evidence. MetLife would be severely prejudiced should
it be required to defend this lawsuit at this time.
It is the duty of a district judge to strike a balance between
alleviating court congestion and protecting a party's right to
due process and a fair chance to be heard. Valentine has had more
than ample opportunity to try his case before the Court. Over
nearly two decades, he has demonstrated reluctance to try the
merits of his case, despite being offered a fair chance to be
heard. Given the unreasonable and inexcusable length of his
delays, as well as the overwhelming prejudice suffered by
defendant, I find that no sanction short of dismissal would be
B. Unclean Hands
In a last-minute attempt to avert the inevitable, plaintiff has
alleged defendant to have "unclean hands." "Courts apply the
maxim requiring clean hands where the party asking for the
invocation of an equitable doctrine has committed some
unconscionable act that is `directly related to the subject
matter in litigation' and has injured the party attempting to
invoke the doctrine."*fn3 Pennecom B.V. v. Merrill Lynch &
Co., Inc., 372 F.3d 488, 493 (2d Cir. 2004), quoting Weiss v.
Mayflower Doughnut Corp., 135 N.E.2d 208, 210 (1956). According
to the Supreme Court, "The equitable powers of this court can never be exerted in behalf of
one who has acted fraudulently, or who by deceit or any unfair
means has gained an advantage. To aid a party in such a case
would make this court the abettor of iniquity." Bein v. Heath,
47 U.S. 228, 247 (1848), cited in Pennecom B.V.,
372 F.3d at 493. The doctrine of unclean hands is invoked when a suitor seeks
relief in the very controversy where he has "so conducted himself
to shock the moral sensibilities of the judge." Goldstein v.
Delgratia Mining Corp., 176 F.R.D. 454, 458 n. 4 (S.D.N.Y.
1997). Application of the unclean hands doctrine "rests with the
discretion of the court, which is `not bound by formula or
restrained by any limitation that tends to trammel the free and
just exercise of discretion.'" Aris-Isotoner Gloves, Inc. v.
Berkshire Fashions, Inc., 792 F.Supp. 969, 969-70 (S.D.N.Y.
1992), citing Keystone Driller Co. v. General Excavator Co.,
290 U.S. 240, 245 (1933). Finally, a judge may raise the unclean
hands doctrine sua sponte. Goldstein, 176 F.R.D. at 458 n. 4.
Otherwise, the party "who invokes the doctrine of unclean hands
has the burden of proof." Gidatex, S.r.L. v. Campaniello
Imports, Ltd., 82 F.Supp.2d 126, 130 (S.D.N.Y. 1999).
The basis for Valentine's unclean hands claim is the meeting he
claims he had with Steer in 1984, prior to filing his complaint.
Valentine's conclusory allegations of unclean hands do not meet
his burden of proof. Rather, the evidence suggests it is more
likely than not that this alleged meeting never happened. Both
parties present conflicting and what are ultimately inconclusive
affidavits suggesting either that Valentine did meet with Steer
prior to filing his complaint, or he did not. But what inclines
me to believe that such a meeting never took place is that
Valentine never once in nearly twenty years even intimated the
possibility of an inappropriate meeting with Steer. Surely during
the course of negotiations he would have recognized the face and
demeanor of the attorney to whom he divulged the most
confidential secrets of his case. Why then would he wait until
the eleventh hour to mount an allegation of impropriety, after
memories had long faded, and with no documentary evidence to
support his claim? It seems to me more likely that plaintiff's
allegation is merely an attempt to avoid dismissal of his action.
But even assuming, again without deciding, that Valentine did
meet with Steer prior to filing his complaint, I do not find that
such action rises to the level of unconscionable behavior that
warrants invoking the unclean hands doctrine. There is no
evidence that Steer used this conversation in a deceitful or
unfair manner, in order to gain an advantage over Valentine. In
the particular circumstances of this case, Steer's alleged
actions does not shock the Court's moral sensibilities.
I also find no merit in Valentine's suggestion that MetLife's
repeated withdrawal of offers accepted demonstrates unclean
hands. First, there is no evidence of any "meeting of the minds"
with respect to a final settlement. Valentine's submission of an
unsigned, and undated document is not evidence of a final and
binding settlement agreement. Furthermore, as I have said, if
Valentine truly believed that MetLife had withdrawn an otherwise
bona fide settlement agreement, the proper course of action would
have been to notify the court within a reasonable time. Instead,
he waited nine years to do so.*fn4 Valentine's assertion
that I invoke the doctrine of unclean hands is denied.*fn5
C. Valentine's Cross-Motion
Finally, plaintiff's cross-motion for partial summary judgment
is denied. First, Valentine's assertion that MetLife took advantage of delays in settlement
procedures is unsupported, unavailing, and does not reach the
merits of his case. Second, Valentine's unclean hands assertion
fails for reasons stated above. Finally, Valentine's unsupported
(and indeed unsupportable) assertion that by bringing its motion
to dismiss, MetLife "concedes liability on the merits of
plaintiff's claim" is itself without merit. Clearly, MetLife does
not concede liability on the merits. Nothing in its motion to
dismiss the complaint on procedural Rule 41(b) grounds would
Defendant's motion to dismiss the complaint on Rule 41(b)
grounds is granted, with prejudice. Plaintiff's complaint is
dismissed in its entirety, without costs. I need not and do not
consider defendant's additional claim under the equitable
doctrine of laches. Plaintiff's cross-motion for partial summary
judgment is denied.
Defendant requests that I award it costs and fees for having to
defend against plaintiff's cross-motion. I decline to do so,
perceiving no basis for fee-shifting in this case.
It is SO ORDERED.