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Cunningham v. St. Bonaventure University

November 10, 2010

MARY F. CUNNINGHAM, PLAINTIFF,
v.
ST. BONAVENTURE UNIVERSITY AND ITS FRANCISCAN INSTITUTE, DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

In this action, plaintiff (proceeding pro se) seeks unspecified injunctive relief and damages against defendant St. Bonaventure University for employment discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA") and the Age Discrimination in Employment Act of 1967 ("ADEA"). Defendant has moved pursuant to Rule 41(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to prosecute (Item 60). For the reasons that follow, defendant's motion is denied.

BACKGROUND

Plaintiff's current place of residence, as listed on the court's docket, is Rockford, Illinois. She commenced this action pro se on or about March 26, 2007, in the United States District Court, Northern District of Illinois, by filing a form complaint containing bare bones allegations of discrimination in violation of the ADEA and ADA (Item 6). Attached to the complaint is a copy of the administrative charge plaintiff filed with the Equal Employment Opportunity Commission ("EEOC") on October 25, 2006, in which she alleged that she was over the age of 50 when she was hired by defendant in September 2005 for the job of Director of Institutional Grants, that she disclosed information about her disability to her supervisor in November 2005 after being warned about her job performance, and that her employment was terminated in December 2005 because of her age and disability (id.). Also attached is the EEOC's "Dismissal and Notice of Rights" letter dated December 26, 2006, notifying plaintiff that her administrative charge had been investigated and dismissed (id.).

On May 8, 2007, defendant filed a motion in the Northern District of Illinois to dismiss the complaint for lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted based on untimely filing of both her administrative charge and her federal court complaint (see Item 16). In a text order dated October 22, 2007 (Item 30), United States District Judge Frederick J. Kapala found that the district court in the Northern District of Illinois lacked personal jurisdiction over defendant to adjudicate claims based on employment discrimination occurring at St. Bonaventure University in western New York State, and transferred the case to this court. Judge Kapala declined to rule on any of the other grounds for dismissal raised by defendant's motion (see id.).

Following transfer, defendant filed its answer containing twenty-nine affirmative defenses (Item 36), and the court set up a preliminary pretrial telephone conference to discuss a schedule for conducting discovery. The conference was subsequently adjourned pending briefing and consideration of plaintiff's motion for appointment of counsel (see Items 40, 42), which defendant opposed (Item 41). In an order entered June 5, 2008, the court found appointment of counsel unwarranted under the circumstances, and denied the motion without prejudice to renew upon detailing further efforts to obtain counsel (Item 45).

Plaintiff participated in the scheduling conference, which took place by telephone on July 2, 2008. Shortly thereafter defendant served interrogatories, document requests, and a notice of deposition upon plaintiff. In a cover letter dated July 14, 2008, defense counsel advised plaintiff that she was required to mail her responses by August 18, 2008, and that her deposition was scheduled to take place on October 7, 2008, at defense counsel's office in Buffalo (see Item 60-3, Ex. B). On August 13, 2008, plaintiff sent a letter to the court advising of her continuing efforts to retain counsel, and requesting a 30-day extension of time to respond to defendant's discovery demands (Item 48). She also requested that the court consider allowing her deposition to be taken over the telephone because she could not afford transportation to Buffalo (id).

Following a status telephone conference held with plaintiff and defense counsel on September 8, 2008, the court issued an order granting plaintiff's request for an extension of time within which to respond to defendant's written discovery requests, and directing plaintiff to send the court a letter confirming that she had so responded (see Item 50). The court also noted that defense counsel did not object to an adjournment of plaintiff's deposition, but did object to a conducting the deposition by telephone. Accordingly, the court deferred ruling on plaintiff's request for a telephone deposition issue pending receipt of the letter confirming "that plaintiff has responded to the pending written discovery requests in a manner sufficient to allow her deposition to go forward." Id.

On November 5, 2008, the extended deadline for responses to defendant's written discovery requests (and the confirming letter) having long since passed, defendant filed a motion to compel pursuant to Fed. R. Civ. P. 37 (Item 51). On December 3, 2008, in accordance with the court's directive, plaintiff filed a written response to the motion, in which she advised by narrative that she had recently been a victim of robbery, assault, burglary, and identity theft, and that she was engaged in further efforts to become familiar with the procedural rules and case law necessary to prosecute her action pro se (see Item 53). Following a telephone conference held on December 11, 2008, the court issued an order directing plaintiff to respond to defendant's written discovery requests by February 2, 2009, and advising plaintiff that "failure to comply with the directives of this order, or with any other orders or directives of the court, shall be considered as grounds for sanctions . . . and/or dismissal of the case for failure to prosecute." Item 56.

On February 3, 2009, plaintiff filed with the court a 342-page document constituting her responses to defendant's interrogatories and document requests (see Item 57). In a letter dated March 4, 2009, defense counsel advised plaintiff that he did not consider the responses to be sufficient, and specified in detail what additional information was required (see Item 60-3, Ex. M). Subsequently, on March 19, 2009, plaintiff filed a 328-page document as a supplemental response to the interrogatories and document requests (see Item 58).*fn1

No further activity is reflected on the court's docket until January 11, 2010, when the court issued a notice scheduling another telephone conference to discuss the status of proceedings in the case. The conference was held on February 3, 2010, at which "the parties were directed to proceed forward with this action within 30 days" (Item 59).

On March 5, 2010, defendant filed the present motion seeking dismissal of the case for failure to prosecute (Item 60). Plaintiff has responded to the motion (Item 63). For the reasons that follow, the motion is denied without prejudice.

DISCUSSION

Rule 41(b) of the Federal Rules of Civil Procedure provides: 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 (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b). Dismissal of an action with prejudice under this rule is a "harsh remedy to be utilized only in extreme situations." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (internal quotation marks and citation omitted). This is particularly true where a plaintiff is proceeding pro se. See, e.g., Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (circuit court will give due deference to district ...


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