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Shaw v. NCO Financial Systems

March 31, 2009

MICHAEL R. SHAW, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF M.S., AN INFANT, PLAINTIFF,
v.
NCO FINANCIAL SYSTEMS, INC., DEFENDANT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

On March 29, 2007, Plaintiff Michael R. Shaw commenced this action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., on behalf of himself and his minor child by filing a Complaint in the Western District of New York. (Docket No. 1.) Plaintiff was represented by counsel until December 13, 2007, at which time counsel was permitted to withdraw because Plaintiff no longer communicated with him. (Docket No. 17.)

Presently before this Court is Defendant's Motion to Dismiss for Lack of Prosecution under Rule 41.2 of the Local Rules of Civil Procedure for the Western District of New York.*fn1 Plaintiff has failed to respond to Defendant's motion, despite being afforded two opportunities to do so. For the reasons stated below, Defendant's motion will be granted and this case will be dismissed for failure to prosecute.

II. BACKGROUND

Approximately six months after Plaintiff filed his Complaint in this action, he stopped communicating with his attorney. This prompted a Motion to Withdraw by Plaintiff's counsel, in which counsel explained that Plaintiff had (1) not responded to several attempts to communicate with him, (2) not responded to telephone calls, and (3) not responded to letters, which were sent by both first class and certified mail. (Hiller Affirmation, Docket 15-2, ¶ 3.*fn2

Upon the filing of Plaintiff's counsel's motion, the assigned Magistrate Judge issued an Order directing Plaintiff to respond to the motion by November 30, 2007, and to appear for a hearing on December 13, 2007. (Docket No. 16.) Plaintiff neither responded nor appeared as directed. Consequently, the Magistrate Judge granted the Motion to Withdraw and determined that Plaintiff was thereafter proceeding pro se. (Docket No. 17.)

On December 17, 2007, Defendant filed the instant Motion to Dismiss for Lack of Prosecution. (Docket No. 18.) This Court issued a scheduling Order on January 9, 2008, directing Plaintiff to file a response to Defendant's motion by February 15, 2008, and warning him that his failure to respond could result in the granting of Defendant's motion as uncontested and the dismissal of his case for failure to prosecute. (Docket No. 19.) Plaintiff failed to respond as directed.

On April 23, 2008, this Court sua sponte extended Plaintiff's time to respond to Defendant's motion to May 23, 2008, and again warned Plaintiff that his failure to respond could result in Defendant's motion being granted as unopposed. (Docket No. 20.) Plaintiff again failed to file a response to Defendant's motion.

III. DISCUSSION

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.

FED. R. CIV. P. 41(b).

Where a defendant has not specifically moved for dismissal under Rule 41(b) - such as in this case*fn3 - 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 ...


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