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Masci v. Customs and Border Protection

September 18, 2009

MORENO MASCI, A/K/A "JOHN" PLAINTIFF,
v.
CUSTOMS AND BORDER PROTECTION, ET AL., DEFENDANTS.



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

DECISION AND ORDER

I. INTRODUCTION

Presently before this Court is Defendants' Motion to Dismiss Plaintiff's Complaint. Despite three separate Scheduling Orders directing Plaintiff to respond to Defendants' Motion, Plaintiff has failed to submit a response. In light of the foregoing, and for the reasons stated below, this case is dismissed with prejudice.

II. BACKGROUND

Plaintiff commenced this action pro se on June 23, 2008, by filing a Complaint in this Court, naming the Customs and Border Protection, Buffalo Field Office, and James Engleman, Director Field Operations, as Defendants. (Docket No. 1.) On December 15, 2008, Defendants moved to dismiss Plaintiff's Complaint. (Docket No. 7.*fn1 Thereafter, this Court issued a Scheduling Order, directing Plaintiff to submit a response to Defendants' Motion by January 23, 2009. (Docket No. 9.) Plaintiff, however, did not file a response by January 23, 2009.

On February 5, 2009, Defendants informed the Court that they mailed a copy of their Motion to Plaintiff at an incorrect mailing address. (Docket No. 10.) Defendants then stated that they re-mailed their Motion to Plaintiff at the correct address. (Id.) Consequently, this Court issued an Amended Scheduling Order, directing Plaintiff to respond to Defendants' Motion by March 13, 2009. (Docket No. 11.) Plaintiff did not submit a response by March 13, 2009.

This Court then issued another Scheduling Order on August 7, 2009. (Docket No. 12.) Therein, this Court directed Plaintiff to submit a response by September 8, 2009. (Id.) The Scheduling Order also warned Plaintiff that his failure to respond by September 8, 2009, may result in Defendants' Motion to Dismiss being granted as unopposed or dismissal of this case due to Plaintiff's failure to prosecute. (Id.) Plaintiff did not submit a response by September 8, 2009, nor has he done so to date.

III. DISCUSSION

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:

If the plaintiff fails 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 the defendants have not specifically moved for dismissal under Rule 41(b) - such as in this case - 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."*fn2 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) (per curiam); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980) (discussing the sanction of dismissal for failure to prosecute as "pungent, rarely used, and conclusive"). This is particularly true in cases involving pro se ...


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