The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Robin Antonio, both individually and as Administratrix of the Estate of Nehru Antonio, brought this action against Third Avenue Radiology ("Third Avenue"), Montefiore Medical Center ("Montefiore"), and the United States of America, seeking relief for alleged medical malpractice, lack of informed consent, and loss of consortium, stemming from the terminal illness and death of her husband Nehru Antonio. For the following reasons, Plaintiff's claims are dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to comply with orders of this Court and for failure to prosecute.
Plaintiff filed this action against Defendants Third Avenue, Montefiore, Leslie Beckford, Leslie Beckford M.D., P.C., Keith Edwards, Keith Edwards, M.D., P.C., and Soundview Health Center on February 17, 2005. After a status conference with the Court on June 28, 2005, Plaintiff submitted an Amended Complaint on July 11, 2005, adding the United States of America as a defendant and terminating the allegations against all other original Defendants except Third Avenue and Montefiore.
Defendant Montefiore filed a Motion to Dismiss the Amended Complaint on September 16, 2005. Defendants moved for dismissal on two grounds. First, Defendants argued that all of Plaintiff's claims were time-barred by the applicable statute of limitations. And second, Defendants argued that a state court action previously filed by Plaintiff which was terminated with prejudice prevented the present action against Montefiore. (Def. Montefiore Mem. of Law 6-14 ("Montefiore Mem.")) Defendant Third Avenue filed a Motion for Summary Judgment on identical grounds on September 19, 2005. (Def. Third Avenue Mem. of Law 4-12 ("Third Avenue Mem.")) Plaintiff's response was due on October 21, 2005, but when Plaintiff failed to respond by that date, the Court extended the due date for the response to December 8, 2005.
On October 27, 2005, the Court received a letter from Plaintiff's counsel, requesting leave to file a motion to withdraw as Plaintiff's counsel, citing Plaintiff's lack of communication and failure to sign a stipulation to discontinue the present action after previously agreeing with counsel to do so. After a conference with the Court on December 1, 2005, the Court ordered Plaintiff's counsel to respond to the Defendants' outstanding motions - which were already late by over one month - by December 8, 2005, and granted leave for Plaintiff's counsel to move to withdraw. Plaintiff's counsel responded to Defendants' motions on December 8, 2005 by submitting a brief letter stating that they had "no good faith basis to oppose the motions." (Frank V. Kelly Letter to the Court, December 8, 2005) Plaintiff's counsel was permitted to withdraw in an Order dated December 23, 2005.
The Court, in its December 23, 2005 Order, instructed Plaintiff to notify the Court in writing by January 20, 2006 how she wished to proceed. In that Order, the Court warned Plaintiff that "failure to comply with this Order could subject Plaintiff's claim to be dismissed for failure to prosecute under Fed. R. Civ. P. 41(b)." (Order, December 23, 2005)
After the Court learned that Plaintiff had mistakenly not been served with the Court's December 23 Order, the Court issued another Order on April 11, 2006. In the April 11 Order, the Court ordered Plaintiff's former counsel to serve Plaintiff with both Orders and submit an affidavit of service to the Court. In the April 11 Order, the Court instructed Plaintiff to retain new counsel and enter counsel's appearance, or proceed pro se, and to further notify the Court of her intentions by May 15, 2006. Additionally, the Court warned Plaintiff that failure to comply with the Order could subject the action to dismissal. On April 13, 2006, the Court received a letter from Plaintiff's former counsel, including an affidavit of personal service on Plaintiff on April 12, 2006. To date, Plaintiff has not responded to the April 11 Order.
Finally, Defendants Montefiore and Third Avenue have alerted the Court and Plaintiff of its Motion to Dismiss this action pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute on three separate occasions.*fn1 Plaintiff has not responded to any of Defendants' correspondence.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a district court to dismiss an action if a plaintiff fails "to prosecute or to comply with . . . any order of the court." Fed. R. Civ. P. 41(b); accord Lucas v. Miles, 84 F.3d 532, 534-35 (2d Cir. 1996). However, "dismissal is a harsh remedy and is appropriate only in extreme situations." Lucas, 84 F.3d at 535 (citation omitted). Where a plaintiff proceeds pro se, Courts should be especially hesitant to dismiss his claim for procedural deficiencies. Id. (citation omitted).
In determining whether dismissal with prejudice for failure to prosecute is warranted in the present action, the Court must weigh several factors: "(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 take[n] care to strik[e] 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." Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir. 1994) (quotation and citation omitted) (alterations in original); Deptola v. Doe, No. 04 Civ. 1379, 2005 WL 2483341, at *2 (E.D.N.Y. Oct. 07, 2005). No single ...