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Wylie Mcleod v. Lowe's Home Improvement and Lou C

June 6, 2011

WYLIE MCLEOD, PLAINTIFF,
v.
LOWE'S HOME IMPROVEMENT AND LOU C,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Presently before the Court is United States Magistrate Judge David R. Homer's Report and Recommendation (Dkt. No. 40) recommending that these consolidated actions be dismissed for failure to prosecute. See Fed. R. Civ. P. 41(b). The Court also has before it a letter motion from plaintiff (Dkt. No. 41) requesting an extension of time to respond to the Report and Recommendation and to file an amended complaint. For the following reasons, plaintiff's motion is denied, the Report and Recommendation is accepted, and the case is dismissed with prejudice.

BACKGROUND

The litany of plaintiff's non-appearances and requests for extensions is set forth in this Court's decisions of August 10, 2010 (Dkt. No. 29) and October 28, 2010 (Dkt. No. 34), as well as Magistrate Judge Homer's Report and Recommendation (Dkt. No. 40) now before the Court. Plaintiff filed his complaint on July 22, 2009 (Dkt. No. 1). After obtaining three extensions of time to file an amended complaint (Dkt. Nos. 4, 6, 8), he filed his amended complaint on March 9, 2010 (Dkt. No. 10). As is set forth below, aside from requesting extensions of time, plaintiff has taken no further steps in this action.

On June 1, 2010 (Dkt. No. 18), defendants moved to dismiss the amended complaint. Plaintiff has never submitted opposition to this motion; he has, however, requested extensions of time to respond to it on July 12, 2010 (Dkt. No. 25); July 30, 2010 (Dkt. No. 26)*fn1 ; August 16, 2010 (Dkt. No. 32); and September 27, 2010 (Dkt. No. 33). On October 28, 2010 (Dkt. No. 34) the Court denied the September 27, 2010 extension request and granted defendants' dismissal motion in part, dismissing the first cause of action and all claims based on events occurring prior to July 10, 2008, and allowing the remaining claims to stand. On November 10, 2010, defendants filed an answer (Dkt. No. 35) to the amended complaint.

On November 30, 2010, Magistrate Judge Homer scheduled a Rule 16 pretrial telephone conference for December 20, 2010. He also ordered the parties to submit a Civil Case Management Plan by December 16, 2010; plaintiff failed to do so (see Dkt. No. 36). Magistrate Judge Homer's minute entry for December 20, 2010 includes the following: "Plaintiff pro se Wylie McLeod did not appear. The telephone number listed on the docket sheet is an incorrect number and additional numbers provided by defendants' counsel were out-of-service."

On December 21, 2010, Magistrate Judge Homer scheduled a mid-discovery telephone conference for March 15, 2011; again plaintiff did not participate. The minute entry states: "Plaintiff pro se Wylie McLeod did not participate. The telephone number listed on the docket sheet for McLeod is not his number. Defendant's counsel advised that she had no contact with McLeod since December 2010."

On the same day, March 15, 2011, Magistrate Judge Homer issued an Order to Show Cause (Dkt. No. 38) returnable April 14, 2011, directing plaintiff to show cause why the action should not be dismissed for failure to prosecute. See Fed. R. Civ. P. 41(b).*fn2 In the Order to Show Cause, Magistrate Judge Homer noted that defendants' counsel "advised that she had not had any contact with McLeod since December, he had failed to respond to discovery demands, and a certified letter to McLeod had been returned unclaimed." The Order to Show Cause directed plaintiff to appear at the conference in person and warned him that if he failed to do so, the action "may be dismissed for his failure to prosecute the action, abandonment of the action, and failure to keep the Court apprised of his current address."

Plaintiff did not submit papers in response to the Order to Show Cause, nor did he appear in person on April 14, 2011. On the same day, Magistrate Judge Homer issued the Report and Recommendation that is now before the Court (Dkt. No. 40), recommending that the case be dismissed pursuant to Fed. R. Civ. P. 41(b) and advising that any objections must be filed on or before May 9, 2011. As Magistrate Judge Homer noted, this allowed plaintiff more time to respond than the required 14 days. The Report and Recommendation was sent to plaintiff by both regular and certified mail. On May 9, 2011, a letter motion (Dkt. No. 41) requesting an extension of time to file an amended complaint and to respond to the Report and Recommendation was filed at the Clerk's Office in Albany by Quentin La Grande on behalf of plaintiff. In that letter motion, plaintiff stated that he was not able to meet the May 9, 2011 deadline "due to mental health issues." The Court has now received a response from defendants (Dkt. No. 43) in opposition to the May 9, 2011 letter motion.

DISCUSSION

The Court holds that, despite the special leniency accorded to pro se litigants, this case presents circumstances that are "sufficiently extreme" to warrant dismissal. Le Sane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citation omitted). In considering the relevant factors, the Court first finds that plaintiff's failure to prosecute has clearly caused significant delay. In nearly two years, the only progress plaintiff has made in this case is the filing of an amended complaint on March 9, 2010 in compliance with Magistrate Judge Homer's July 23, 2009 order (Dkt. No. 3) -- after three extensions of time. In all other respects, he has entirely failed to proceed. He failed to comply with the order directing submission of a Civil Case Management Plan, failed to participate in two scheduled telephone conferences, and failed to appear on the return date of the Order to Show Cause. Despite three more extensions, he never submitted opposition to defendants' June 2, 2010 motion to dismiss the amended complaint. Nor has he submitted opposition to the Report and Recommendation. He has not kept the Court or opposing counsel apprized of his address or telephone number. The only excuses he has ever offered are that he was seeking assistance from the Pro Se Assistance Program and/or has mental health issues. He has never provided any details or documentation regarding either issue. Despite repeated warnings, he makes no showing that he has taken any steps to address these issues or that he has otherwise made good faith efforts to proceed with this action.

Plaintiff was on notice that further delay would result in dismissal. In his March 15, 2011 Order to Show Cause, Magistrate Judge Homer ordered:

PLAINTIFF WYLIE McLEOD SHALL TAKE NOTICE that if he fails to appear in person for the conference on April 14, 2011 at 9:00 a.m., this action may be dismissed for his failure to prosecute the action, abandonment of the action, and failure to keep the Court apprised of his current address. If the action is dismissed, there will be no trial or other proceedings in this action, all of the claims asserted in the complaint will be ...


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