SENGMANY SAVATXATH, Pro Se, Endicott, NY. FOR PLAINTIFF
BRIAN M. SEACHRIST, ESQ., CITY OF BINGHAMTON, CORPORATION COUNSEL, Binghamton, NY. FOR CITY DEFENDANTS
JENNIFER L. KATZ, ESQ., OFFICE OF BROOME COUNTY, ATTORNEY, Binghamton, NY. FOR COUNTY DEFENDANTS
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, Magistrate Judge.
Plaintiff Sengmany Savatxath, who is proceeding pro se, commenced this action nearly one year ago. He failed to appear, however, at an in-person pretrial conference held by the court to discuss the case and a case management order to be entered, and has since failed to respond to an order directing him to show cause why his complaint should not be dismissed for failure to prosecute. In light of these circumstances, and plaintiff's failure to comply with court directives, I recommend that plaintiff's complaint be dismissed, without prejudice, for failure to prosecute.
Plaintiff filed his complaint in this matter on September 28, 2012. Dkt. No. 1. Upon commencement of the action, he was provided with a copy of the district's pro se handbook. Dkt. No. 4. Following the initial screening of plaintiff's complaint, a General Order No. 25 packet was sent to the plaintiff on March 25, 2013, informing him that an in-person pretrial conference would be conducted in the case, pursuant to Rule 16 of the Federal Rules of Civil Procedure, on July 5, 2013 at 12:30 p.m. in Binghamton, New York. Dkt. No. 11 at 1. Subsequently, on April 24, 2013, the court sent a notice to the parties advising that, due to a scheduling conflict, the Rule 16 conference was rescheduled for June 21, 2013, to be held in Binghamton, New York. Text Notice Dated Apr. 24, 2013.
The General Order No. 25 packet instructed the parties to confer and jointly prepare a civil case management plan, to be filed at least fourteen days prior to the Rule 16 conference. Dkt. No. 11 at 1. Despite that directive, plaintiff did not cooperate with defendants' counsel in formulating a plan for the progression of the case, and, as a result, defendants were forced to file a unilateral civil case management plan to satisfy the court's expectations. Dkt. No. 25.
On the date of the scheduled Rule 16 conference, plaintiff did not appear before the court. Minute Entry Dated June 21, 2013. In light of plaintiff's failure to provide the court and defendants' counsel a contact phone number, the court could not attempt to contact the plaintiff by telephone to secure his presence or obtain an explanation for his absence. Based upon plaintiff's failure to appear on July 1, 2013, I issued an order directing him to show cause, in writing, on or before July 19, -, as to why this action should not be dismissed for failure to prosecute. Dkt. No. 29. To date, the plaintiff has not responded to this order.
A plaintiff's failure to cooperate with defendants' counsel and to appear as directed at the scheduled Rule 16 Conference could amount to a finding that the plaintiff has neglected to prosecute his case. Such conduct could warrant dismissal of the action. Link v. Wabash R.R. Cnty. Indep. Sch. Dist., 370 U.S. 626, 629-30 (1962) ("The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted."). Before dismissing the case now before me, however, I opted to afford plaintiff an opportunity to explain why he did not appear for the Rule 16 conference, as directed, in deference to his pro se status. Despite the court's directive requiring him to show cause, on or before July 19, 2013, as to why the action should not be dismissed for failure to prosecute, plaintiff neglected to respond in any way, and the case remains stagnant. The implication from plaintiff's manifest disinterest in the case is that he no longer intends to prosecute the claims set forth in his complaint.
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, order dismissal of an action based on a plaintiff's failure to prosecute. See Fed.R.Civ.P. 41(b); Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J. adopting report and recommendation by Lowe, M.J.). That discretion should be exercised when necessary to "achieve the orderly and expeditious disposition of cases." Link, 370 U.S. at 630-31 (1962); Williams v. Faulkner, No. 95-CV-0741, 1998 WL 278288, at *2 (N.D.N.Y. May 20, 1998) (Pooler, J., adopting report and recommendation by Scanlon, M.J.); Moshier v. Trabout, No. 96-CV-1666, 1998 WL 167298, at *1 (N.D.N.Y. Apr. 2, 1998) (Pooler, J. adopting report and recommendation by Scanlon, M.J.); Moshier v. Trabout, No. 96-CV-1666, 1998 WL 167298, at *1 (N.D.N.Y. Apr. 2, 1998) (Pooler, J. adopting report and recommendation by Hurd, M.J.).
The question of whether a Rule 41(b) dismissal for failure to comply with an order of the court is warranted is informed by the following five factors:
(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 ...