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Slater v. J.C. Penney Co., Inc.

United States District Court, Second Circuit

November 6, 2013



CHARLES J. SIRAGUSA, District Judge.

Pending before the Court in this employment discrimination case is Defendant's motion seeking summary judgment, ECF No. 23. The Court entered an order dated May 22, 2013, setting June 19, 2013, as the date Plaintiff's responding papers were due. ECF No. 24. On June 25 and September 5, 2013, the Court granted Plaintiff's counsel's requests for extensions of time to respond to the summary judgment motion. ECF No. 25, ECF No. 26. The last extension was granted for September 16, 2013, the date Plaintiff's counsel requested.[1]

On September 10, 2013, Plaintiff's counsel, Christina A. Agola, Esq., was suspended from the practice of law pursuant to N.Y. Compl. Codes R. & Regs. tit. 22, § 1022.20 (2013) by an order of the New York State Supreme Court, Appellate Division, Fourth Department.[2] Rules of the Appellate Division require a suspended lawyer to notify her clients of the suspension and advise them to obtain new counsel. N.Y. Compl. Code R. & Regs. tit. 22, § 1022.27 (2013).[3]

The Court received a letter inquiring about the status of this case from opposing counsel and on October 16, 2013, sent a response, with a copy to the last known address for Plaintiff's counsel: WNY Civil Rights, LLC, 1415 Monroe Avenue, Rochester, NY 14618. On October 29, 2013, the letter was returned to the Court. The envelope had written in large black lettering across its face, "RETURN TO SENDER." The Post Office affixed a yellow sticker stating, in relevant part, "RETURN TO SENDER. ATTEMPTED - NOT KNOWN. UNABLE TO FORWARD."

The Court's local rules require that pro se litigants keep the Court apprised of the litigant's current address. The rule states:

A party appearing pro se must furnish the Court with a current address at which papers may be served on the litigant. The Court will assume that the litigant has received papers sent to the address he or she provides. The Court must have a current address at all times. Thus, a pro se litigant must inform the Court immediately, in writing, of any change of address. Failure to do so may result in dismissal of the case, with prejudice.

L.R. Civ. P. 5.2(d) (2012).

The Court presumes that Christina A. Agola complied with the rule requiring her to notify her clients and encourage them to obtain new counsel. It is evident that the Court no longer has a current address for Plaintiff, and that Plaintiff has failed to respond to the Court's order directing her to file a response to Defendant's motion. Further, the Court has attempted to reach Plaintiff through her counsel's last known address without success.

The Federal Rules of Civil Procedure permit the Court to dismiss an action if a plaintiff fails to prosecute it or comply with a court order. Fed.R.Civ.P. 41(b). In reviewing an order dismissing a case under Rule 41, the Court of Appeals considers the following:

(1) the plaintiff's failure to prosecute caused a delay of significant duration;
(2) [the] plaintiff was given notice that further delay would result in dismissal;

(3) [the] defendant was likely to be prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully balanced against plaintiff's right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions.

United States ex. rel . Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004).

This lawsuit has been pending since July 6, 2010, and is already more than three years old. The case has gone through several amended scheduling orders since its initiation and all discovery is now completed. More than three months have passed since the June 19, 2013, deadline for Plaintiff's response to the motion. Plaintiff has had sufficient time to either attempt to obtain new counsel, or contact the Court, and evidently has done neither. The case is now in limbo. The Court has no means by which to contact Plaintiff to warn her that further delay could result in dismissal. Defendant is likely to be prejudiced by further delay since this is a retail store in which Plaintiff was employed from 1976 until October 14, 2008, and witnesses are likely to move or otherwise become unavailable. See Merle Decl. ¶ 5, May 17, 2013, ECF No. 23-21. The Court has 252 pending civil cases with 179 pending motions, and 106 pending criminal cases involving 164 defendants and is currently presiding at a three-defendant criminal trial involving a conspiracy to sell drugs and to commit three murders. Spending time to ...

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