The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff Paul A. Vohwinkel commenced this employment discrimination action under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and § 296 of the New York Human Rights Law ("NY HRL") on January 20, 2005, by filing a Complaint in the United States District Court for the Western District of New York. Defendant Pembroke Central School District filed its Answer on February 22, 2005.
Presently before this Court is Defendant's Motion for Summary Judgment (Docket No. 12), to which Plaintiff has failed to respond. For the reasons stated below, this case will be dismissed pursuant to Rule 41 of the Federal Rules of Civil Procedure due to Plaintiff's failure to prosecute this action. Alternatively, Defendant's Motion for Summary Judgment will be granted as uncontested pursuant to Local Rule 7.1(e).
It appears from the docket that Plaintiff actively litigated this case through February 24, 2006, at which time it was determined that settlement was not possible. (Docket No. 11.) But after Defendant filed its Motion for Summary Judgment on April 26, 2006 (Docket No. 12), Plaintiff stopped prosecuting this case, despite being represented by two different attorneys.
After Defendant filed its Motion for Summary Judgment, the Honorable John T. Elfvin, the District Judge to whom this matter was previously assigned, entered three separate scheduling orders at Plaintiff's request setting deadlines of June 2, July 7, and September 1, 2006, for the filing of Plaintiff's response. Plaintiff never responded to Defendant's motion. Instead, on July 27, 2006, Plaintiff's counsel moved to withdraw as counsel on the basis that Plaintiff ignored his advice, refused to accept his recommendations, would not return his telephone calls, and refused to pay his legal bills. (Moriarty Affidavit, Docket No. 21, ¶ 23.)
On August 29, 2006, Judge Elfvin granted Plaintiff's counsel's Motion to Withdraw and directed Plaintiff to retain new counsel within 60 days or be prepared to represent himself in this matter. (Docket No. 23.) A status conference was then held on October 27, 2006, at which time Judge Elfvin directed Plaintiff's new counsel, Patrick J. McDonnell, to file a Notice of Appearance. Mr. McDonnell advised Judge Elfvin at that time that he would file Plaintiff's opposition to Defendant's Motion for Summary Judgment within two weeks. (Signor Affirmation, Docket No. 30, ¶ 5.) Mr. McDonnell never filed opposition papers.
Judge Elfvin set a further status conference for November 24, 2006, but later cancelled the conference because Mr. McDonnell failed to file his Notice of Appearance as directed. Further inquiry by the Court revealed that Mr. McDonnell had not been in contact with either Plaintiff or Defendant's counsel. Judge Elfvin therefore issued an Order to Show Cause on November 27, 2006, directing Plaintiff to show cause why his case should not be dismissed for failure to prosecute. (Docket No. 25.)
On December 4, 2006, Mr. McDonnell filed his Notice of Appearance on behalf of Plaintiff. (Docket No. 29.) On December 7, 2006, Mr. McDonnell filed an Affidavit in response to Judge Elfvin's Order to Show Cause requesting that the case not be dismissed. (Docket No. 28.) Judge Elfvin held a Show Cause hearing on December 22, 2006, and advised that he would not dismiss the case and would issue a new briefing schedule on Defendant's Motion for Summary Judgment.
On January 11, 2007, Judge Elfvin issued an Order noting that Mr. McDonnell had not adequately explained his failure to file responsive papers to Defendant's motion, but nonetheless finding that the case should not be dismissed for failure to prosecute. (Docket No. 31.) Judge Elfvin issued a new briefing schedule on January 16, 2007, which required Plaintiff to file his response to Defendant's Motion for Summary Judgment by March 16, 2007, and setting oral argument for March 23, 2007.
Plaintiff again failed to file his response to Defendant's motion as directed. Moreover, Mr. McDonnell failed to appear for the March 23, 2007 oral argument. In light of Plaintiff's failure to appear, Judge Elfvin deemed Defendant's Motion for Summary Judgment submitted without opposition or oral argument.
But for the Order reassigning this matter to this Court on October 17, 2007 (Docket No. 32), there has been no activity for more ...