The opinion of the court was delivered by: William M. Skretny United States District Judge
Defendants removed this 42 U.S.C. § 1983 action from New York State Supreme Court, Erie County, to this Court on July 17, 2006. Plaintiff Marvin Scott filed an additional Complaint on September 1, 2006, to which Defendants filed an Answer on September 20, 2006. Presently before this Court is Defendants' Motion to Dismiss under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute, and under Rule 37(b) for failure to comply with court orders. For the reasons stated below, Defendants' motion is granted.
Plaintiff was represented by counsel at the beginning of this case. Counsel appeared before the Honorable Leslie G. Foschio, United States Magistrate Judge, on November 29, 2006, for a scheduling conference. (Docket No. 6.) Thereafter, Judge Foschio issued a scheduling order setting forth various pretrial deadlines. (Docket No. 7.) Pursuant to that order, counsel stipulated to the selection of a mediator and agreed to mediate the case beginning on January 12, 2007.*fn1 (Docket No. 8). But Plaintiff could not be located to participate in the mediation session, so it was cancelled. (Docket No. 21.)
Plaintiff's counsel then filed a Motion to Withdraw as Counsel on April 19, 2007. (Docket No. 9.) Counsel's motion was based on his inability to contact Plaintiff, who did not return his calls. (Docket No. 9.) When counsel finally spoke to Plaintiff, he advised Plaintiff that he could not continue to represent him without his cooperation, to which Plaintiff responded that he understood and did not oppose counsel withdrawing from the case. (Docket No. 9.) On the same date - April 19, 2007 - Defendants filed a Motion to Compel discovery and for compliance with the scheduling order. (Docket No. 10.)
Judge Foschio held a motion hearing on counsel's Motion to Withdraw on May 30, 2007. (Docket No. 14.) Plaintiff did not attend. At the hearing, Judge Foschio granted counsel's motion from the bench, recognized that Plaintiff would proceed pro se, and advised that Plaintiff would be responsible for conducting discovery and proceeding with the case alone if he did not retain new counsel. (Docket No. 15.) Judge Foschio further ordered that Plaintiff's counsel send Plaintiff a letter to that effect. (Docket No. 15.)
Judge Foschio held a motion hearing on Defendants' Motion to Compel on June 20, 2007. (Docket No. 18.) Plaintiff again failed to appear. (Docket No. 18.) Judge Foschio granted Defendants' motion and directed that Plaintiff file and serve his Rule 26 mandatory disclosures by July 20, 2007. (Docket Nos. 18, 19.) Judge Foschio also issued an amended scheduling order. (Docket No. 20.)
Plaintiff failed to file and serve his Rule 26 mandatory disclosures by July 20, 2007, as directed. Consequently, on July 31, 2007, Defendants filed the instant Motion to Dismiss for lack of prosecution and failure to comply with court orders. (Docket No. 22.) This Court issued a scheduling order on Defendants' motion on August 15, 2007, directing that Plaintiff file a response by August 31, 2007, and appear for oral argument on September 12, 2007 (later adjourned to September 19, 2007). (Docket Nos. 22, 23.) Plaintiff did not respond, nor did he appear for argument as directed. (Docket No. 25.) This Court therefore issued an order directing Plaintiff to appear on October 29, 2007, and show cause why his case should not be dismissed. (Docket No. 24.) Again, Plaintiff failed to appear. (Docket No. 26.) Accordingly, this Court took Defendants' motion under advisement at that time. (Docket No. 26.)
A. Dismissal under Rule 41(b) For Failure to Prosecute
Dismissal of this case is warranted pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides that:
[f]or 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. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for ...