United States District Court, W.D. New York
DECISION & ORDER
MARIAN W. PAYSON, Magistrate Judge.
Plaintiff Scott Eric Luellen ("Luellen") initiated this action on March 21, 2011, asserting RICO claims and various state law claims against Joe Dean Hodge ("Hodge"). (Docket # 1). In essence, the complaint alleges that Hodge assisted his daughter in hiding assets during the pendency of her divorce proceedings with Luellen. ( Id. ). Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 20).
Currently pending before the Court is the adequacy of Luellen's response to an Order to Show Cause why this case should not be dismissed for failure to prosecute pursuant to Rule 41(b) of the Local Rules of Civil Procedure for the United States District Court for the Western District of New York. (Docket ## 141, 142). Also pending is Luellen's motion for reconsideration of the Court's prior order denying his motion for sanctions based on Hodge's alleged spoliation of evidence, namely, bank records relating to Hodge's personal account with Charter One Financial ("Charter One" or the "Bank"). (Docket # 131).
I. Order to Show Cause
An Order to Show Cause was issued on December 27, 2013, following the return of several documents mailed by the Court to Luellen due to Luellen's failure to advise the Court of his current address. (Docket # 141). By letter dated December 23, 2013, counsel for Hodge informed the Court that he believed Luellen's current address was 367 S. Negley Avenue, Pittsburgh, P.A. 15232. The Order to Show Cause was mailed to this address, as well as to Luellen's address of record. Luellen responded to the Order to Show Cause on January 22, 2014. (Docket # 142).
According to Luellen, he had made arrangements to have his mail forwarded and had submitted a change of address form to the United States Postal Service. ( Id. at 1). Luellen contends that despite his efforts to ensure that his mail was forwarded, he did not receive any correspondence from the Court since sometime in 2012. ( Id. ). In addition, Luellen contends that Hodge's daughter had knowledge of Luellen's current address. ( Id. ). Luellen maintains that his failure to file an amended complaint by October 30, 2013, in accordance with the Court's September 30, 2013 Decision and Order, should be excused because he never received a copy of the Order until he recently discovered it online. ( Id. at 3). Luellen now requests an additional thirty days to file an amended complaint. ( Id. ).
Hodge opposes Luellen's response to the Order to Show Cause, contending that Luellen has failed to comply with this district's Local Rules, which require Luellen to advise the court of any address changes. (Docket # 143-1 at ¶ 4) (citing W.D.N.Y. Local Rule 5.2(d)). In addition, Hodge notes that the docket reflects that Luellen notified the court of his change of address on at least one previous occasion, suggesting Luellen's familiarity with his obligations under the Local Rules. ( Id. at ¶ 10). Further, while maintaining that Hodge's daughter's knowledge of Luellen's address is irrelevant, Hodge contends that, in any event, his daughter was not informed of Luellen's new address until sometime in mid-December 2013. ( Id. at ¶¶ 13-14). Finally, Hodge asserts that he would be prejudiced if the Court were to permit Luellen to amend his complaint at this stage of the litigation because he has now prepared and filed a summary judgment motion based upon the original complaint. ( Id. at ¶ 19).
Rule 41(b) of the Federal Rules of Civil Procedure authorizes the dismissal of an action for failure to prosecute, providing in relevant part:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision... operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b). Although the rule refers to dismissal upon motion of a defendant, the Supreme Court has made clear that a court has the inherent authority to dismiss an action sua sponte. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) ("[t]he authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an inherent power, ' governed not by rule or statue but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases"); see also Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.) (per curiam), cert. denied, 384 U.S. 1007 (1966). In addition, the Local Rules provide that "[i]f a civil case has been pending for more than six months and is not in compliance with the directions of the... Magistrate Judge, ... the Court shall issue a written order to the parties to show cause within thirty days why the case should not be dismissed for failure to comply with the Court's directives or to prosecute." W.D.N.Y. Local Rule 41(b). Further, the Local Rules provide that "a pro se litigant must inform the Court immediately, in writing, of any change of address[;] [f]ailure to do so may result in dismissal of the case, with prejudice." W.D.N.Y. Local Rule 5.2(d).
Dismissal is warranted under Rule 41(b) where the record demonstrates a lack of due diligence by a plaintiff in the prosecution of his lawsuit. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Moreover, "prejudice resulting from unreasonable delay may be presumed as a matter of law." Peart v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993); Charles Labs, Inc. v. Banner, 79 F.R.D. 55, 57 (S.D.N.Y. 1978) ("[t]he operative condition on a Rule 41(b) motion is lack of due diligence on the part of the plaintiff, not a showing by defendant that it would be prejudiced'") (quoting Messenger v. United States, 231 F.2d 328, 331 (2d Cir. 1956)). Dismissal is considered "a harsh remedy to be utilized only in extreme situations." See Minnette v. Time Warner, 997 F.2d at 1027 (internal quotations omitted). Applying these standards, courts have found that dismissal of a complaint is justified when the plaintiff fails to take any specific or concrete actions over a substantial length of time. See, e.g., Fischer v. Dover Steamship Co., 218 F.2d 682, 683 (2d Cir. 1955) (plaintiff's failure to appear for deposition noticed seven months earlier, despite court order requiring his appearance, justified dismissal for failure to prosecute); Myvett v. Rosato, 2004 WL 1354254, *2 (S.D.N.Y. 2004) ("[t]hat nearly a year has elapsed since [plaintiff] took any steps to prosecute this case, such as responding to outstanding discovery requests, strongly counsels in favor of dismissal"); West v. City of New York, 130 F.R.D. 522, 525-26 (S.D.N.Y. 1990) (plaintiff's inactivity for nineteen months warranted dismissal for failure to prosecute) (citing Chira v. Lockheed Aircraft Corp., 634 F.2d 664 (2d Cir. 1980) and other cases).
In the case at bar, there is no dispute that Luellen failed to comply with this district's Local Rules requiring him to "immediately" apprise the Court of any change of address. W.D.N.Y. Local Rule 5.2(d). Indeed, the Court would have been justified in dismissing the action for Luellen's failure to comply with Local Rule 5.2(d) instead of issuing an Order to Show Cause. See Gomez-Ka'Dawid v. Wright, 2013 WL 1103208, *3 (W.D.N.Y. 2013). In this case, however, upon notice that he risked dismissal of the action, Luellen promptly and timely responded to the Order to Show Cause and indicated his desire to continue the prosecution of this matter. On this record, I find that Luellen's actions do not demonstrate the level of prosecutive delinquency justifying dismissal. Butler v. Conway, 2013 WL 3777145, *2 (W.D.N.Y. 2013) (granting reconsideration of dismissal of plaintiff's action for failure to notify the court of his change of address where plaintiff sought reconsideration upon notification that the matter had been dismissed). Luellen's case will therefore be permitted to proceed. Luellen is cautioned that any future incidents of prosecutive delinquency or non-compliance with the Court's rules or deadlines may result in sanctions, including the dismissal of any or all of his claims.
Luellen's request for an extension of time to amend his complaint is not properly before the Court. Such a request, particularly where it is opposed, may not be made in a response to a show cause order, but must instead be made through a formal motion seeking such relief. In any event, I agree with Hodge that it would be unduly prejudicial to permit Luellen to file an amended complaint at this stage of the litigation. Although Luellen did not receive a copy of the Court's Decision and Order permitting a limited amendment provided that it was filed no later than October 30, 2013, his failure to receive a copy was solely of his own making and a direct result of his failure to notify the court of his address change. On this record, Luellen has not shown good cause for the extension requested. Further, in compliance with the Court's scheduling order requiring the filing of dispositive motions by December 16, 2013 in the event that Luellen did not file an amended complaint, and in reliance of Luellen's failure to file an amended complaint, Hodge prepared and filed a summary judgment motion. (Docket ...