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Yarborough v. Davidson

February 5, 2010

AARON YARBOROUGH, PLAINTIFF,
v.
KATHLEEN DAVIDSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge

DECISION & ORDER and AMENDED SCHEDULING ORDER

PRELIMINARY STATEMENT

Plaintiff Aaron Yarborough initiated this action on September 8, 2005, alleging that defendants provided him with inadequate medical care. (Docket # 6). Currently before the Court is the adequacy of plaintiff's response to an Order to Show Cause why this case should not be dismissed for failure to prosecute pursuant to Rule 41.2 of the Local Rules of Civil Procedure for the United States District Court for the Western District of New York.

The Order to Show Cause was issued by the Clerk of the Court on November 18, 2009 (Docket # 26) after the plaintiff failed to appear for two court-ordered conferences (Docket ## 25, 27). Plaintiff responded to the Order on December 17, 2009, explaining that he missed one of the appointments because of side effects from medication he was taking caused him confusion and forgetfulness. (Docket # 29). Defendants have taken no position with respect to this motion.

DISCUSSION

Rule 41(b) of the Federal Rules of Civil Procedure authorizes the dismissal of an action for failure to prosecute, providing in relevant part:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision . . . operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b). Although the rule refers to dismissal upon motion of a defendant, the Supreme Court has made clear that a court has the inherent authority to dismiss an action sua sponte. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) ("[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 statue but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases"); see also Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.), cert. denied, 384 U.S. 1007 (1966).

Dismissal is warranted under Rule 41(b) where the record demonstrates a lack of due diligence by a plaintiff in the prosecution of his lawsuit. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Moreover, "[p]rejudice resulting from unreasonable delay may be presumed as a matter of law." Peart v. City of N.Y., 992 F.2d 458, 462 (2d Cir. 1993); Charles Labs, Inc. v. Banner, 79 F.R.D. 55, 57 (S.D.N.Y. 1978) ("The operative condition for a Rule 41(b) motion is lack of due diligence on the part of the plaintiff, 'not a showing by defendant that it would be prejudiced'") (quoting Messenger v. United States, 231 F.2d 328, 331 (2d Cir. 1956)). Applying these standards, courts frequently have found dismissal of a complaint justified when the plaintiff fails to take any specific or concrete actions over a substantial length of time. See, e.g., Fischer v. Dover Steamship Co., 218 F.2d 682, 683 (2d Cir. 1955) (plaintiff's failure to appear for deposition noticed seven months earlier, despite court order requiring his appearance, justified dismissal for failure to prosecute); Myvett v. Rosato, 2004 WL 1354254, *2 (S.D.N.Y. 2004) ("[t]hat nearly a year has elapsed since [plaintiff] took any steps to prosecute this case, such as responding to outstanding discovery requests, strongly counsels in favor of dismissal"); West v. City of N.Y., 130 F.R.D. 522, 525-26 (S.D.N.Y. 1990) (plaintiff's inactivity for nineteen months warranted dismissal for failure to prosecute) (citing Chira v. Lockheed Aircraft Corp., 634 F.2d 664 (2d Cir. 1980) and other cases). Nevertheless, dismissal is considered "a harsh remedy to be utilized only in extreme situations." See Minnette v. Time Warner, 997 F.2d at 1027 (internal quotations omitted).

In the case at bar, it is uncontested that the plaintiff twice failed appear for a court conference. In response to the Order to Show Cause, however, plaintiff has represented that due to the side effects of certain medication he was confused about the date of the conference. (Docket # 29). He wishes to continue with the litigation. (Id.). While plaintiff should have been more attentive to deadlines, that oversight does not appear to have disadvantaged the defendants. One defendant's answer to plaintiff's amended complaint was not filed until August 12, 2009. (Docket # 23).

On this record, I find that plaintiff's actions do not demonstrate the level of prosecutive delinquency justifying dismissal. Plaintiff's case will therefore be permitted to proceed.

CONCLUSION

For the foregoing reasons, this Court finds that plaintiff has demonstrated good cause why the matter should not be dismissed due to his ...


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