The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff Richard W. Beecham and former Plaintiff Darlene Williams commenced this action in New York State Supreme Court, County of Erie, on or about September 20, 2007. Defendant State Farm Fire & Casualty Co. removed the case to this Court and filed an Answer on October 15, 2007.
Presently before this Court is Defendant's Motion to Dismiss for Lack of Prosecution pursuant to Rule 41.2 of the Local Rules of Civil Procedure for the Western District of New York, to which Plaintiff has failed to respond.*fn1 For the reasons stated below, Defendant's motion will be granted and this case will be dismissed for failure to prosecute.
This case involves Plaintiff's claim under his homeowner's insurance policy for a fire loss sustained on October 31, 2006. During Defendant's investigation of the claim, it discovered what it characterizes as "overwhelming evidence of fraud" by Darlene Williams, who voluntarily discontinued this action against Defendant on December 10, 2007. See Storm Affirmation, Docket No. 17-2, ¶ 8. Plaintiff co-owned the property with Williams, but is not believed to have been involved in the intentional burning of the property because he was incarcerated at the time. See id. at ¶ 10. Because of his status as an "innocent co-insured," Defendant tendered Plaintiff a settlement offer (through Plaintiff's counsel), to which he never responded. See id. at ¶ 11.
Since Williams discontinued her action against Defendant more than one year ago, nothing substantive has taken place. Counsel appeared before the Magistrate Judge three times in early 2008. At each conference, Plaintiff's counsel represented that he could not reach Plaintiff. At the last appearance, on February 28, 2008, Plaintiff's counsel represented that he would file a Motion to Withdraw as Counsel, but he never did. With no activity for two months and no Motion to Withdraw as Counsel having been filed, Defendant filed the instant Motion to Dismiss for Failure to Prosecute on April 11, 2008.
This Court issued a Scheduling Order on April 29, 2008, directing Plaintiff to file a response to Defendant's motion by May 12, 2008. Plaintiff was also warned that his failure to file his response as directed could result in the granting of Defendant's motion as uncontested or dismissal of the case for failure to prosecute. Plaintiff failed to file a response without explanation. Consequently, on June 16, 2008, this Court sua sponte issued a Final Scheduling Order extending the deadline for Plaintiff's response to June 23, 2008, and again warning Plaintiff of the consequences for his failure to respond as directed. Plaintiff again failed to file a response to Defendant's motion.
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 improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Where a defendant has not specifically moved for dismissal under Rule 41(b) - such as in this case*fn2 - a court may nonetheless order dismissal sua sponte. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1982); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). In Link, the Supreme Court noted that: "[t]he authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."*fn3 Link, 370 U.S. at 630-31.
Rule 41(b) does not define failure to prosecute. But the Second Circuit has stated that failure to prosecute "can evidence itself either in an action lying dormant with no significant activity to move it or in a pattern of dilatory tactics." Lyell Theatre, 682 F.2d at 42. Dismissal pursuant to Rule 41(b) falls within the court's discretion. See id. at 42-43 ("the scope of review of an order of dismissal is confined solely to whether the trial court has exercised its inherent power to manage its affairs within the permissible range of its discretion"). It is, however, "a harsh remedy to be utilized only in extreme situations." Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d Cir. 1983) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) ...