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Elizabeth A. Kennedy v. Richard Echevarria and Astrazeneca L.P

June 6, 2011

ELIZABETH A. KENNEDY, PLAINTIFF,
v.
RICHARD ECHEVARRIA AND ASTRAZENECA L.P., DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

ORDER

This case, originally removed from New York state court, is a diversity action alleging sexual harassment against the plaintiff. Throughout the case, plaintiff's counsel has failed to properly represent his client, as evidenced by, among other things, the fact that he has regularly failed to comply with deadlines without explanation to the Court. I now dismiss the case for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).

BACKGROUND

The case was brought to this Court on December 8, 2010, and on December 21, 2010, I conducted a premotion conference on the defendants' anticipated motion to dismiss. At the conference, plaintiff's counsel requested permission to amend the complaint. I instructed him to amend the complaint by January 7, 2011, or to inform the Court that he had declined to amend the complaint.

By January 8, 2011, counsel had failed to either file an amended complaint or inform the Court that he had decided against an amendment, and five days later defense counsel requested permission to file a motion to dismiss the original complaint. The next day, counsel requested and received an extension of time to file, and he was instructed to inform the Court on or before January 31, 2011 as to whether he had decided to file an amended complaint. Counsel again failed to either file an amended complaint or inform the Court that he would not be filing one, so on February 2, 2011 I permitted the defendants to file their motion to dismiss.

On February 11, 2011, the motion to dismiss was filed pursuant to my February 2, 2011 order, which set an opposition date of February 28, 2011. Counsel for the plaintiff neither filed opposition papers nor requested an extension from the Court. Accordingly, on March 29, 2011, more than a month after the opposition brief was due, I ordered the plaintiff to show cause on or before April 1, 2011, why the motion to dismiss should not be granted as unopposed and/or the case dismissed for failure to prosecute.

On April 1, 2011, counsel submitted a letter in response to my order to show cause. In addition to claiming that his client had been difficult to reach for various reasons, he wrote:

[M]y schedule was unusually hectic until approximately mid-February. I did telephone defense counsel a couple of weeks ago to inform of my inability to meet with my client (I have been in Albany since Wednesday for NY State Bar Association meetings so I can't say exactly when the call was made) and after receiving no reply realized that I should have informed the court. I hope the court and counsel accept my apologies for not doing so.

Docket No. 11. He then requested an additional three weeks in which to file opposition papers.

On April 8, 2011, I held a status conference on the motion to dismiss, the relevant portion of which is excerpted below:

The Court: What is going on?

Counsel: I guess, a confluence of events. The chief problem has been my client's psychiatric condition. I made numerous appointments, contacts with her. We both happened to have Gmail or Google chats. There will be an indication she's online and [I'll] say, you got to come in and I will speak to you, and then the indicator goes to off.

The Court: W[hen] were you going to get around to telling me about it, [were you] waiting for an order to show cause why I should[n't] dismiss the [case]? You left unanswered a dispositive ...


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