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Jiminez v. Astrue

January 29, 2010

ERICK RODRIGUEZ JIMINEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



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

DECISION AND ORDER

I. INTRODUCTION

Presently before this Court is Defendant's Motion for Judgment on the Pleadings. (Docket No. 10.) Despite three separate Scheduling Orders directing Plaintiff to respond to Defendant's 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 January 15, 2009, by filing a Complaint in this Court, naming the Commissioner of Social Security, as the Defendant. (Docket No. 1.) On July 20, 2009, Defendant moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 10.) Thereafter, this Court issued a Scheduling Order, directing Plaintiff to submit a response to Defendant's Motion by September 15, 2009. (Docket No. 12.) Plaintiff, however, did not file a response by September 15, 2009.

This Court then issued another Scheduling Order on October 2, 2009. (Docket No. 14.) Therein, this Court directed Plaintiff to submit a response by October 15, 2009. (Id.) The Scheduling Order also warned Plaintiff that his failure to respond by October 15, 2009, may result in the dismissal of this case for failure to prosecute. (Id.) Plaintiff did not submit a response by October 15, 2009.

On December 10, 2009, this Court issued a third Scheduling Order directing Plaintiff to submit a response by January 18, 2010. (Docket No. 15.) This Court warned Plaintiff that his failure to submit a response by said date may result in the dismissal of his case, and that no extensions of time will be given. (Id.) Plaintiff did not submit a response by January 18, 2010, 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."*fn1 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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