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Valerie Thomas v. Erik K. Shinseki

October 6, 2011

VALERIE THOMAS
PLAINTIFF,
v.
ERIK K. SHINSEKI, AS SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS,
DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

On November 12, 2009, Plaintiff Valerie Thomas ("the Plaintiff") commenced this action against her employer, the United States Department of Veterans Affairs ("the Department" or "the Defendant"), under the American With Disabilities Act, 42 U.S.C. § 12117(a). Presently before the Court is the Defendant's motion to dismiss the Plaintiff's claims for failure to prosecute pursuant to Federal Rules of Civil Procedure 41(b) ("Fed. R. Civ. P. 41(b)" or "Rule 41(b)"). For the reasons set forth below, the Court grants the Defendant's motion.

I. BACKGROUND

The relevant facts have been previously described by the Court in this case as follows:

On November 12, 2009, the plaintiff filed a complaint asserting causes of action against the defendant Department of Veterans Affairs for employment discrimination and retaliation. No activity took place in the case for the four months following the filing of the complaint, so on March 23, 2010, the Court issued a letter to the plaintiff stating, "Plaintiff's counsel is requested to inform the Court within ten (10) days of this notice, why an order should not be entered dismissing this action for failure to prosecute pursuant to Fed. R. Civ. P. 41(b)." The plaintiff's counsel did not write to inform the Court of the reason for the inactivity on the case. Accordingly on April 9, 2010, the Court entered an order dismissing the plaintiff's case pursuant to Rule 41(b) for failure to prosecute.

On April 27, 2010, the plaintiff filed a motion with the Court requesting (1) to be relieved of the Court's order dismissing the plaintiff's case, pursuant to Fed. R. Civ. P. 60(b), and (2) that the Court enter a default judgment against the defendant for failure to answer her complaint. The next day, the defendant wrote to oppose the plaintiff's motion, and stated that, while the plaintiff had served the complaint on the Department of Veterans Affairs, the plaintiff had not also served the complaint on the local United States Attorney and the Attorney General, as required by law. In reply, the plaintiff agreed that she had improperly served the government, and withdrew her motion for a default judgment. However, the plaintiff reiterated her request that the Court reopen the case, and also then requested that the Court permit her additional time to serve the defendant properly.

On July 12, 2010, the Court denied the plaintiff's Rule 60(b) motion to reopen, but granted leave to refile the motion with an explanation for (1) the plaintiff's failure to respond to the Court's letter indicating impending dismissal, and (2) the plaintiff's failure to properly serve the defendant. On July 30, 2010, the plaintiff filed a renewed motion to reopen the case pursuant to Rule 60(b). In support of this motion, the plaintiff's attorney stated that he had fired the process server who had failed to properly serve the defendant, and that he had believed that he had sufficiently responded to the Court's letter by filing an affidavit of service. In addition, the plaintiff's attorney stated that a family emergency had caused him to be less attentive to this matter than he usually would have been. By letter dated August 12, 2010, the defendant stated that it "takes no position with regard to Plaintiff Valerie Thomas' [] application for an order pursuant to Fed. R. Civ. P. 60(b) to relieve Plaintiff of the Court's order dismissing the case for failure to prosecute." (Def.'s Resp. at 1.) (See Order dated November 4, 2010, Docket Entry 11 ("the November 4, 2010 Order")).

In the November 4, 2010 Order, the Court, in the interest of justice, granted the Plaintiff's motion to be relieved of the Court's April 9, 2010 order dismissing the case for failure to prosecute pursuant to Rule 41(b) due to the Plaintiff's failure to effectuate (1) proper service upon a governmental agency, pursuant to Fed. R. Civ. P. 4(i); and (2) timely service within 120 days as required, pursuant to Federal Rule of Civil Procedure 4(m) ("Fed. R. Civ. P. 4(m)"). The Court issued a further directive that the Plaintiff was granted until December 3, 2010, to properly serve the Defendant, specifically referencing Fed. R. Civ. P. 4(i)(4) and (4)(m). The Plaintiff thereafter filed a certificate of service on November 23, 2010 certifying service on Loretta E. Lynch, the United States Attorney, but did not file proof of service on the Department or the U.S. Attorney General.

The Plaintiff has failed to take any other action with regard to the present case since the filing of the certificate of service on November 23, 2010. On May 3, 2011, the Defendant filed a motion to dismiss for failure to prosecute pursuant to Fed. R. Civ. P. 41. In particular, the Defendant contends that the Plaintiff has failed to comply with the Court's November 4, 2010 order to properly serve the Defendant within the designated time, because the Plaintiff did not serve all three entities required under Fed. R. Civ. P. 4(i) for service upon a governmental agency: the agency, the local U.S. Attorney's office, and the U.S. Attorney General. The Defendant further maintains that this noncompliance should be treated as a failure to prosecute and thus warrants dismissal of the Plaintiff's complaint. The motion is unopposed.

II. DISCUSSION

A. Standard on a Motion to Dismiss Pursuant to Fed. R. Civ. P. 41 Fed. R. Civ. P. 41(b) provides, in part, that "[i]f the plaintiff fails to prosecute or to comply with . . . a court order, a defendant may move to dismiss the action or any claim against it." Rule 41(b) obligates a plaintiff to diligently prosecute her case. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Although not explicitly authorized by Rule 41(b), a district court has the inherent power to dismiss a case, sua sponte, for lack of prosecution. See Link v. Wabash R.R. Co., 370 U.S. 626, 630--31, 82 S. Ct. 138, 68 L. Ed.2d 734 (1962); Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998). A court's authority to invoke this remedy is essential "because of the strong policy favoring prompt disposition of cases." Lyell Theatre Corp., 682 F.2d at 43. It is well established that "dismissal of an action is warranted when a litigant . . . fails to comply with legitimate Court directives. . . ." Beeks v. Reilly, No. 07-CV-3865, 2009 WL 2568531, at *2 (E.D.N.Y. Aug. 19, 2009) (citations omitted).

In the Second Circuit, a dismissal under Rule 41(b) is determined in light of five, well-established factors, which a Court must consider:

(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.

Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citations omitted). No single factor is generally dispositive. Id. Whether the basis for dismissal is a failure to prosecute or noncompliance with a court order, the analysis remains the same because a district court has the power under Rule 41(b) to treat noncompliance as a failure to prosecute. See Simmons v. Abruzzo, 49 F.3d 83, 87 (1995); Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000) ("the factors involved in determining whether there has been ...


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