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Keitt v. John/Jane Doe

United States District Court, Second Circuit

November 8, 2013

DEVIN KEITT, (06A2122), Plaintiff,
v.
JOHN/JANE DOE, et al., Defendants.

REPORT AND RECOMMENDATION

JEREMIAH J. McCARTHY, Magistrate Judge.

This action has been referred to me by Hon. Richard J. Arcara for supervision of pretrial proceedings [105].[1] Before me is defendants' motion pursuant to Fed.R.Civ.P. ("Rule") 41(b) to dismiss this action for failure to prosecute [101]. Oral argument was held on September 16, 2013 [114]. For the following reasons, I recommend that the motion be denied, without prejudice.

BACKGROUND

This action was commenced in the Southern District of New York by pro se Complaint filed October 7, 2009 [2]. Defendants allege that plaintiff commenced a similar action in the Northern District of New York (Keitt v. Annetts, et al., (10-CV-157)) approximately four months after the commencement of this action. Defendants' Memorandum of Law [112], p. 4 of 10.

In connection with being granted in forma pauperis status while his case was venued in the Southern District of New York, plaintiff was directed to file an Amended Complaint within 60 days [3]. In January of 2010 plaintiff requested and was granted an additional 45 days to file an Amended Complaint [6]. Instead of filing an Amended Complaint, plaintiff moved for appointment of counsel [7]. That motion was denied, and plaintiff was granted an additional 30 days to file an Amended Complaint [8]. Again, he moved for appointment of counsel and for an extension of time to file an Amended Complaint, alleging that his Dyslexia prevented him from prosecuting the action without the assistance of counsel. [9], p. 4 of 8. On May 6, 2012, he was granted a final 60-day extension to file an Amended Complaint, and cautioned that if he failed to do so, the action would be dismissed. Id., p. 5 of 8. Heeding this warning, he filed the Amended Complaint on July 8, 2010 [10], which alleges, inter alia, that while at the Elmira Correctional Facility defendants failed to accommodate plaintiff's dyslexia and retaliated against him for filing grievances about this conduct.

With the Marshals' assistance, the defendants were eventually served with the Amended Complaint in October of 2010, and were granted an extension until January 11, 2011 to answer or otherwise move against the Amended Complaint [24]. Defendants moved for partial dismissal of the Amended Complaint, and to sever and transfer to this District the remaining claims arising from his incarceration at Elmira [35]. After being granted an extension of time to respond [42], plaintiff opposed that motion [52] and cross-moved for leave to file a Second Amended Complaint [49]. By decision dated September 29, 2011 [74], District Judge George B. Daniels granted defendants' motion and denied plaintiff's motion for leave to file a Second Amended Complaint, which sought to add claims arising from his incarceration at Attica Correctional Facility, without prejudice to renewal in this District. See Keitt v. New York City , 882 F.Supp.2d 412, 422 (S.D.N.Y. 2011).

Upon the transfer of plaintiff's remaining claims to this District, I scheduled a preliminary pretrial conference, which was held on December 7, 2011 [78, 81]. At that time, the parties agreed to the deadlines of a Case Management Order [82], which required all motions to amend pleadings and join other parties to be filed by January 23, 2012. A day after the deadline to amend pleadings expired, defendants moved to amend the caption of the Amended Complaint to include only those defendants remaining in the case and for an extension of time to respond to the Amended Complaint [84]. On January 30, 2012, I received a proposed Second Amended Complaint from plaintiff, and at the February 9, 2012 conference, I advised plaintiff that any amended pleading must be accompanied by a motion for leave to amend.[2]

On March 22, 2012, I appointed James Greco, Esq. to represent plaintiff [90]. At the May 2, 2012 conference defendants withdrew their motion to amend the caption [84], without prejudice, and the parties agreed that plaintiff would file a Second Amended Complaint, with defendants reserving their right to answer or otherwise move against it [94].[3] At that time, it was contemplated that the Second Amended Complaint would be filed before the next conference, which was originally scheduled for June 20, 2012, and then adjourned to July 19, 2012 [95]. When plaintiff failed to do so, the parties agreed, and I ordered, that plaintiff's Second Amended Complaint be filed by August 31, 2012 [96]. With defendants' consent, that deadline was extended to October 8, 2012, based upon Mr. Greco's representation that he had been unable to discuss the amendment with plaintiff due to plaintiff's transfer to another facility [98, 99]. At Mr. Greco's request, and with defendants' consent, I further extended that deadline to October 31, 2012 [100], which lapsed without any request for an extension or Second Amended Complaint being filed.

On November 23, 2012, defendants filed their motion to dismiss for failure to prosecute [101] and I gave plaintiff until December 14, 2012 to respond [104], but this deadline also lapsed without a request for an extension or response to the motion. Concerned that plaintiff may have been abandoned by Mr. Greco, I issued an Order to Show Cause [106] requiring plaintiff and Mr. Greco to each demonstrate in writing why defendants' unopposed motion to dismiss for failure to prosecute [101] should not be granted. Mr. Greco responded to my Order to Show Cause with a motion to withdraw as counsel [111].[4] According to Mr. Greco, he initially had "often-pleasant conversations" with plaintiff. Id., ¶ 8.[5] This changed when, as a result of his conversations with plaintiff concerning a December 3, 2012 Report and Recommendation issued in Keitt v. Annetts, 2012 WL 7151333 (N.D.N.Y. 2012), [6] which was unfavorable to plaintiff, "it became apparent that [they] had a conflict between [them] regarding the direction of this action". Greco Affirmation [111], ¶ 13. Thereafter, according to Mr. Greco, plaintiff advised him that he no longer wanted his representation and intended to seek someone else to represent him. Id., ¶ 14.

In March of 2013 Mr. Greco contacted my chambers and was advised to file a motion to withdraw as counsel. Id., ¶ 15. However, at that time Mr. Greco was attempting to relocate his practice to another firm, and concedes that he "did not afford the motion to withdraw the attention it deserved". Id., ¶ 16. Therefore, he argues that plaintiff "should not suffer due to [his] employment transition and relocation" and "should be afforded an opportunity to litigate this action". Id., ¶ 17.

Plaintiff responded to my Order to Show Cause [106] by moving for a conference [107], stating that he "did not know Mr.... Greco walked away from law practice". Keitt Affirmation [107], p. 4 of 8, ¶ 6. Relying heavily on the dismissal of plaintiff's claims in Keitt v. Annetts, supra, defendants continue to seek dismissal for failure to prosecute, arguing that

"[a]ffording plaintiff a renewed opportunity to litigate an already addressed and defeated issue serves no purpose, wastes valuable judicial resources, prejudices defendants, and, on balance, weighs overwhelmingly in favor of dismissal. This is especially so, given that Keitt's repeated delays in this case - including 9 extensions while this case was venued in the Southern District of New York and nearly as many extensions here - resulted in another Court reaching and deciding the issue first. Having commenced two separate actions four months apart in different federal courts, which raised the same issue, plaintiff risked that one court's decision would have preclusive effect over the other. As such, plaintiff cannot blame his volunteer attorney for the result he brought on himself." Defendants' Memorandum of Law [112], pp. 2-3 of 10.

ANALYSIS

In seeking to dismiss plaintiff's action with prejudice under Rule 41(b), defendants rely on plaintiff's alleged inaction "both before and after counsel was appointed". Defendants' Memorandum of Law [102], p. 2. According to defendants, "[o]ther than his request for counsel and several ...


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