The opinion of the court was delivered by: Dora L. Irizarry, District Judge
Before the Court is plaintiffs' motion, pursuant to Fed. R. Civ. P. 60(b), to restore this action, which was dismissed for failure to prosecute. On January 7, 2004, plaintiffs' counsel, Michael S. Haber, Esq., on behalf of approximately ninety plaintiffs, filed a complaint alleging that the union breached its duty of fair representation depriving plaintiffs of various career advancement opportunities. A stipulation extending time to answer was endorsed by this Court and entered on June 4, 2004. Thereafter, neither party took any action in this matter. Thus, on July 28, 2005, this Court entered a Notice of Impending Dismissal for Failure to Prosecute (the "Notice"), requiring action be taken on or before August 18, 2005, or the case would be dismissed. As ordered by the Court, a hard copy of the Notice was forwarded to all parties. Since no action was taken by the parties, on September 1, 2005, the Court entered an order dismissing the action (the "Order"). A hard copy of the Order was also forwarded to all the parties. Three days shy of the Order's one year anniversary, on August 29, 2005, plaintiffs' counsel filed the instant motion to reopen the case. This motion is unopposed. As set forth below, plaintiffs' motion is granted, but the court imposes sanctions on plaintiffs' counsel.
In his motion, Mr. Haber disgorges a laundry list of excuses for his failure to take any action in this case for more than twenty-six months. First, Mr. Haber indicates he intended to amend plaintiffs' complaint and "address certain issues relating to, and arising from, the second bankruptcy of US Airways [Group, Inc.]."*fn1 (Haber Mem. of Law ("MOL") at 6.) However, to date, no amended complaint or request to file an amended complaint has been filed. Mr. Haber then points to the fact that US Airways Group, Inc. ("US Airways") filed for bankruptcy on August 11, 2002 and exited bankruptcy on March 31, 2003. This fact is irrelevant as plaintiffs' complaint was filed on January 7, 2004. Counsel further points to the fact that US Airways filed a second bankruptcy in September 2004 and exited bankruptcy on September 27, 2005. (Haber MOL at 6.) However, Mr. Haber does not explain why he did not request a stay of this action due to US Airways' bankruptcy, nor did he request to file an amended complaint during this time. He further failed to explain why he took no action after September 27, 2005 until he filed the instant motion, almost one year later.
Second, Mr. Haber relies on the fact that an initial conference was not held in this matter and that defendants did not answer as an excuse for his delay. However, the burden is not on the Court nor on defendants to prosecute this matter. Plaintiffs bear the burden. In addition, Mr. Haber does not explain why he did not move for a default judgment since the defendants failed to answer within the stipulated time frame.
Third, Mr. Haber states that, "for reasons that are unclear to plaintiffs' counsel, [the electronic] notice was not received at [Mr. Haber's e-mail address, which was registered with the Court]." Mr. Haber further explained that he underwent an e-mail account transfer and may not have received the electronic notice as a result of this transfer. Mr. Haber goes on to explain that another attorney has a similar e-mail address, which may have been confused with his e-mail address. However, Mr. Haber does not explain why he did not receive the hard copy notices sent to his business address. Mr. Haber merely states "no such written order was received at plaintiffs' counsel's office." The court notes in this regard that the docket sheet does not reflect that the copies of the court's orders mailed to counsel were returned to the court as "undeliverable" or for any other reason.
The disposition of a Rule 60(b) motion rests within the sound discretion of the District Court. See Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir.1990), aff'd, 118 501 U.S. 115, 111 S.Ct. 2173, 115 L.Ed. 2d 109 (1991). Rule 60(b) of the Federal Rules of Civil Procedure provides that "the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake . . . excusable neglect . . . or (6) any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(1) & (6). Rule 60(b) further provides that "[t]he motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Fed. R. Civ. P. 60(b). "[T]he one-year limit is an outside extreme, not an automatically available time for filing the motion." United States v. Foley, 645 F.2d 155, 157 (2d Cir. 1981).
Here, plaintiffs' counsel made the motion to restore just three days prior to the one year anniversary of the Court's dismissal order. Merely because plaintiffs' counsel filed the motion before the one year anniversary of the dismissal deadline does not automatically make such a filing timely. See id. Plaintiffs' filing must be within a reasonable time. See id. The last activity that occurred in this matter was a stipulation to extend defendants' time to answer endorsed by the Court on June 4, 2004. It has been more than twenty-six months since the Court endorsed the stipulation and plaintiffs' counsel has done nothing in this matter, except disregard the Court's July 28, 2005 Notice of Impending Dismissal Order requiring plaintiffs to take action on or before August 18, 2005 or suffer dismissal. Here, counsel's delay in this action cannot constitute excusable neglect. See Dominguez v. United States, 583 F.2d 615, 617-18 (2d Cir. 1978) (per curiam), cert. denied, 439 U.S. 1117, 99 S.Ct. 1023, 59 L.Ed. 2d 76 (1979) (finding inexcusable neglect where attorney waited ten months before filing a 60(b) motion because his files had been moved to his basement); Cucurillo v. Schulte, Bruns Schiff Gesellschaft, M.B.H., 324 F.2d 234 (2d Cir. 1963) (per curiam) (finding inexcusable neglect where plaintiffs waited twenty months after their last act advancing the suit before moving to vacate the dismissal). Not only did counsel wait more than eleven months after the Court's dismissal to file his Rule 60(b) motion, he waited more than twenty-six months since the stipulation before taking any action in this case, i.e., moving to restore this action. See id.
In considering whether dismissal is the appropriate remedy, the court should consider the following relevant 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) [ ] strik[ing a] 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 [there are adequate and effective] lesser sanctions. See Dodson v. Runyon, 86 F.3d 37, 40-41 (2d Cir. 1996) (internal citations and quotations omitted). The Second Circuit has warned that dismissal is a "harsh," "pungent," and "rarely used" remedy [that should] not to be utilized without a careful weighing of its appropriateness." Id. at 39 (internal citations and quotations omitted) "A district judge should employ it only when he is sure of the impotence of lesser sanctions." Id. at 39.
Here, counsel's twenty-six-month delay in taking action weighs heavily in favor of dismissal. Moreover, counsel's excuses of e-mail account transfer error, mistaken e-mail identity, and hypotheses as to why counsel received neither the electronic nor hard copy of the Court orders are entirely frivolous. However, several factors weigh in favor of granting plaintiffs' motion.
The Court does not find any prejudice to the defendants because defendants have yet to file an answer, no discovery has taken place, and defendants have not opposed this motion. Thus, defendants have invested nothing in defending this action. In addition, it does not appear that any of the ninety plaintiffs contributed to the delay of prosecution. Mr. Haber's spurious justifications for his delay clearly demonstrate that he, and not plaintiffs, was responsible for failure to prosecute this case. Absent any showing of prejudice, dismissal is inappropriate where the fault clearly lay in the lawyer's failure to attend to his clients' business. See Dodson, 86 F.3d at 40. Instead, as the Second Circuit has "long-suggested" and recommended to the district courts as "sound practice," the appropriate remedy is "imposing sanctions directly on the dilatory attorney," including financial sanctions. Id. Therefore, a $2,500 sanction on Mr. Haber is just and shall not to be passed on to plaintiffs or defendants.
Accordingly, upon Mr. Haber's payment of $2,500.00, by certified check, to the Clerk of the Court by March 15, 2007, the Rule 60(b) motion will be granted and the action automatically reinstated. If Mr. Haber does not pay the $2,500.00 sanction by March 15, 2007, the Rule 60(b) motion will be denied, and the prior dismissal will remain in effect. Finally, if the case is reinstated pursuant to the above procedure, within five (5) days of said reinstatement, Mr. Haber shall electronically file a letter requesting an initial conference with U.S. Magistrate Judge Roanne Mann. If Mr. Haber fails to file such request, this case will be ...