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United States District Court, S.D. New York

November 1, 2004.


The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


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 1984.

  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 negotiations.

  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 Debra Freeman.

  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. They are:

(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 granted.

  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 defendant.

  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 proper.

  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 suggest otherwise.


  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.


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