The opinion of the court was delivered by: Leisure, District Judge
Plaintiff Beth Richter brings this tort action against Webster Hall Entertainment Corp., Webster Hall Records, and several as of yet unidentified corporate and individual defendants alleging unauthorized use of likeness, invasion of privacy, and invasion of her right to publicity. Richter alleges that during the course of her employment as a dancer at Webster Hall she was recorded without her knowledge or authorization. She further alleges the recording was altered and distorted before being publicly distributed, again without her authorization or permission. Richter seeks injunctive relief, damages of a yet to be determined amount, and punitive damages.
Defendants Webster Hall Entertainment and Webster Hall Records answered the complaint and claim no involvement in creating the DVD and that the PVC did not alter or distort Richter's likeness. Defendants further allege Richter's face was obscured by her own hat during her eleven-second appearance in the forty-five-minute DVD and that she was aware of the recording at the time it occurred.
A review of the history of the case reveals that plaintiff has engaged in a pattern of recalcitrance, failure to appear at pre-trial conferences, and dilatory tactics. Under the circumstances, the Court found it necessary to dismiss the action under Federal Rule of Civil Procedure 41(b) for failure to prosecute, pursuant to the body of case authorities set forth below.
From the first pre-trial conference before this Court on September 14, 2004, plaintiff has failed to pursue this claim in any meaningful way. At that conference plaintiff's counsel was admonished for sending a "pinch-hitter," a stand-in associate attorney who had little knowledge of the case, rather than the actual trial attorney, who had not yet been assigned. Nor had plaintiff's counsel communicated or otherwise discussed the case with defendants' counsel. At the conference, defendants' counsel indicated that he was investigating the propriety of a motion to dismiss for lack of subject matter jurisdiction for plaintiff's failure to allege at least the statutorily required $75,000 in damages. The Court suggested that the attorneys communicate further by letter to explore the viability of such a motion, and directed that discovery proceed.
Plaintiff then failed to appear at the second pre-trial conference on December 16, 2004. Further, defendants' counsel informed the Court that plaintiff had not responded to defendants' counsel's written correspondence regarding subject- matter jurisdiction and that plaintiff had caused discovery to stall contrary to this Court's directive that discovery move ahead. As a result, the Court issued a Memorandum Order on December 21, 2004, notifying plaintiff that her failure to prosecute her action would result in the dismissal of her case, and required that she appear at the next pre-trial conference scheduled for March 3, 2005. (See Order, Dec. 21, 2004.) Plaintiff's counsel did appear at the March 3, 2005 conference. At that conference, the Court reminded plaintiff's counsel that failure to prosecute the case may result in a dismissal under Rule 41(b), and again encouraged the parties to confer regarding defendants' concerns regarding subject matter jurisdiction. The Court then referred the case to United States Magistrate Judge Henry B. Pitman for oversight of general pre- trial discovery, and told the parties once more that the case must move ahead. During that time defendants' counsel again contacted plaintiff's counsel to discuss the case and to attempt to move the case forward, but to no avail.
On April 4, 2006, Magistrate Judge Pitman issued an order stating that discovery should have already been completed and, accordingly, the parties were directed to file dispositive motions, if any, no later than May 5, 2006. Judge Pitman further directed the parties to file a pretrial order by June 5, 2006, or thirty days after the decision on any dispositive motion, whichever date came later. Judge Pitman directed plaintiff to forward a copy of the order to defendants.
After both dates had passed, the Court contacted counsel to schedule a pre-trial conference for August 9, 2006. Plaintiff's counsel failed to appear at the August 9, 2006 conference. Defendants' counsel -- who at this point had been forced to pointlessly attend three out of the four pre-trial conferences without his adversary being present, and who never received Magistrate Judge Pittman's order because plaintiff ignored the Court's direction to send him a copy -- informed the Court that plaintiff's counsel had been "asleep at the wheel" in his handling of this case. Indeed, he explained that he had recently contacted plaintiff's counsel about the case and, as a result, was asked to resend certain correspondence that had already been provided by him over sixteen months prior thereto, on March 3, 2005.
Given the numerous failings by plaintiff, and defendants' extreme patience and perseverance, the Court found it necessary to take the drastic step of dismissing the case, sua sponte, for failure to prosecute and failure to comply with the Court's and Judge Pittman's orders.
I. Involuntary Dismissal Standards
Federal Rule of Civil Procedure 41(b) allows a defendant to move for the dismissal of an action where the plaintiff fails to prosecute its case.*fn1 See Fed. R. Civ. P. 41(b). While the rule's text does not articulate a district court's right to order such a dismissal sua sponte, that right -- developed through case law -- is now "unquestioned." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)); see Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per curiam) (citing Link, 370 U.S. at 630-31). What underlies the need for the rule is the Supreme Court's recognition that it "is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts." Link, 370 U.S. at 629-30. The necessity of the rule, though, is tempered by a corresponding recognition that the courts have a strong interest in allowing plaintiffs the ability to have their claims tried on the merits. Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 172 (2d Cir. 2001) ("This Court has held that '[s]trong public policy favors resolving disputes on the merits.") (citation omitted) (bracket in original); Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995) ("This Court has expressed on numerous occasions its preference that litigation disputes be resolved on the merits."). Indeed, the Second Circuit has made clear that the involuntary dismissal of a case with prejudice is "'a harsh remedy to be utilized only in extreme situations.'" Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982) (citing Theilmann, 455 F.2d at 855).
With this precaution in mind, the Second Circuit has directed its district courts to balance the following five factors when deciding whether a case should be involuntarily dismissed: (1) the duration of plaintiff's failures; (2) whether the court gave notice to plaintiff that further delays would result in dismissal; (3) the likelihood of prejudice to the defendant by further delay; (4) whether the district judge has balanced the need to alleviate court calendar congestion with protecting a party's right to due process and a fair chance to be heard; and (5) the efficacy of lesser sanctions. Shannon v. Gen. Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999); Lukensow v. Harley Cars of New York, 124 F.R.D. 64, 66 (S.D.N.Y. 1989) (Leisure, J.). No single factor is diapositive, see Shannon, 186 F.3d ...