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Eersteling v. Niu

February 7, 2007


The opinion of the court was delivered by: Glasser, United States Senior District Judge


Plaintiff Alain Eersteling, by his counsel Jeffrey H. Schwartz, Esq., objects to the Report and Recommendation of Magistrate Judge Mann, dated February 21, 2006,*fn1 ("R&R") recommending that this action be involuntarily dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b), and that sanctions in the amount of the defendants' attorney's fees be imposed on plaintiff's counsel. For the reasons stated below, this court rejects in part and accepts in part Magistrate Mann's recommendations.


The plaintiff*fn2 commenced this diversity action on January 28, 2005, seeking damages for the defendants' alleged negligence in the operation of a motor vehicle, which he alleges caused an automobile accident in Queens, New York, on January 31, 2002, in which the plaintiff was allegedly injured. An initial conference was held before Magistrate Mann on April 26, 2005, and the case was referred to arbitration on May 17, 2005. An arbitration hearing was initially scheduled for November 30, 2005; however, on November 2, 2005, defense counsel submitted a letter to Magistrate Mann indicating that, as of that date, the plaintiff had provided no disclosure to the defendant, despite a letter from the defendant to Mr. Schwartz on July 1, 2005, reminding Mr. Schwartz of his discovery obligations. Magistrate Mann then held a telephonic conference on November 7, 2005, at which she admonished Mr. Schwartz for ignoring the discovery deadlines, and warned him that further violations could result in the dismissal of his case with prejudice. Magistrate Mann ordered Mr. Schwartz to provide the defendants with automatic disclosure authorizations by November 14, 2005, and ordered the arbitration clerk to reschedule the arbitration hearing from November 30 2005, to a later date. The hearing was rescheduled for February 8, 2006.

On February 8, 2006, the defendants submitted a letter to Magistrate Mann, in which they alleged that the plaintiff had failed to appear for the arbitration hearing scheduled for that day, and that the plaintiff's counsel had not contacted the defendants to request that the hearing be rescheduled. (Docket entry number 13). In their letter, the defendants asked that the case be dismissed; the next day, Magistrate Mann entered an Order to Show Cause directing the plaintiff to appear on February 21, 2006, to show cause why the case should not be dismissed and sanctions should not be imposed upon plaintiff's counsel. (Docket number 14). Magistrate Mann's order indicated that "[f]ailure to appear as directed will result in the imposition of sanctions and a recommendation that the case be dismissed." Order to Show Cause at 1. On February 21, 2006, while waiting for the plaintiff to appear at the Order to Show Cause hearing, defense counsel informed Magistrate Mann that Mr. Schwartz had provided the medical authorizations to the defendants, as directed by Magistrate Mann at the November 7 hearing, and had produced the plaintiff for an independent medical examination on December 15, 2005. Magistrate Mann's written record of that hearing indicates that the court waited 30 minutes, from 9:30 to 10:00 AM, for Mr. Schwartz to arrive. When he failed to do so, Magistrate Mann entered a written order recommending that the case be dismissed with prejudice "for lack of prosecution and violation of court orders... and that plaintiff's counsel be sanctioned in the amount of the fees unnecessarily expended by defendant in defending this action." R&R at 1-2. On March 3, 2006, Mr. Schwartz filed an Objection to Magistrate Mann's recommendation, in which he does not deny having missed both the arbitration hearing and the hearing before Magistrate Mann, but argues that "Plaintiffs [sic] default should be excused in the interests of justice because I was lacking actual knowledge of the arbitration/order to show cause date." Objections to Recommendations of Magistrate, dated March 3, 2006, at 1. Mr. Schwartz further explains to the court that "as of February 1, 2006 my office relocated to 160 Broadway from 225 Broadway and we have had significant disruption of, inter alia, our main and information systems. Some data has been lost or delayed in transit." Id. The defendants did not make a submission in opposition to the plaintiff's objections.


A. Standard of Review

Title 28 of the United States Code, Section 636(b)(1)(A) ("Section 636"), states that a magistrate judge may "hear and determine any pretrial matter pending before the court," with the exception of certain dispositive motions including, inter alia, a motion for involuntary dismissal of a civil action. In reviewing a magistrate's determination of a nondispositive pretrial motion, a district court may overrule the magistrate's decision only where it is "clearly erroneous or contrary to law." Id. However, § 636(b)(1)(B) states that, although magistrates may not determine the dispositive pretrial motions explicitly excepted from their authority under § 636(b)(1)(A), the district court may designate a magistrate to hold hearings and to submit proposed findings of fact and recommendations for the disposition of such motions. Section 636(b)(1) goes on to say that, where a party objects to the magistrate's recommendation as to the determination of a dispositive motion, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Federal Rule of Civil Procedure ("Rule 72") draws the same distinction; Rule 72(a) states that a district court considering a party's objection to a magistrate's determination of a nondispositive pretrial matter "shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law," while Rule 72(b) states that, when reviewing a magistrate judge's recommendation as to a dispositive motion, "[t]he district judge to whom the case is assigned shall make a de novo determination... of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." See also Zises v. Dep't of Soc. Servs. of the Human Res. Admin. of the City of New York, 112 F.R.D. 223, 225-226 (E.D.N.Y. 1986) (Nickerson, J.) (discussing § 636 and Rule 72; concluding that a magistrate's determination of a dispositive motion is subject to de novo review).

The defendants' motion that this action be involuntarily dismissed is clearly "dispositive" within the meaning of Rule 72, and is one of the eight types of pretrial matters explicitly reserved for de novo review under § 636(b)(1). This court shall therefore review Magistrate Mann's recommendation de novo.

B. Dismissal is Unwarranted in This Case

Although the decision whether to grant a motion to dismiss for failure to prosecute is a matter of the district court's discretion, the Second Circuit has "fashioned guiding rules that limit a trial court's discretion in this context, out of recognition... that dismissal for failure to prosecute is a 'harsh remedy to be utilized only in extreme situations.'" United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (quoting Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)) (citation omitted). The Second Circuit has instructed the district courts that, when deciding whether to grant such a motion, their discretion must be guided by considering whether:

(1) the plaintiff's failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.

Drake, 375 F.3d at 254; see also Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001) (same). Applying these factors, the court is persuaded that dismissal is ...

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