United States District Court, N.D. New York
JAMES YOUNGBERG Montgomery, New York, Plaintiff, pro se.
BOND, SCHOENECK & KING, PLLC, Suzanne O. Galbato, Esq., of counsel, Clifford G. Tsan, Esq., of counsel, Syracuse, New York, and QUARLES & BRADY, LLP, Michael J. Gonring, Esq., of counsel, Milwaukee, Wisconsinm, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
Defendants move (Dkt. No. 44) to dismiss this personal injury action for failure to prosecute. Fed.R.Civ.P. 41(b). As set forth below, the Court grants the motion and dismisses the action with prejudice.
Plaintiff, then represented by counsel, commenced this action on January 13, 2012 (Dkt. No. 1). After the parties engaged in some discovery, plaintiff's attorney moved (Dkt. No. 31) to withdraw from representation of plaintiff. United States Magistrate Judge Andrew T. Baxter heard the unopposed motion by telephonic conference on May 17, 2013, during which plaintiff informed the court that he did not oppose the motion and that he intended to retain new counsel. On the same date, by Text Order (Dkt. No. 34), Magistrate Judge Baxter granted the motion and continued his stay of all deadlines pending the submission of a notice of appearance by new counsel of record for plaintiff or a status report to be filed on or before June 14, 2013.
On June 27, 2013 (Dkt. No. 37), plaintiff requested additional time to retain counsel. By Text Order issued on July 1, 2013 (Dkt. No. 38), Magistrate Judge Baxter granted the request and continued his stay of all deadlines pending the submission of a notice of appearance by new counsel of record for plaintiff or a status report to be filed on or before July 31, 2013.
On August 13, 2013, Magistrate Judge Baxter held a stenographically-recorded telephonic status conference, during which plaintiff reported that he was in the process of retaining the Law Offices of Sobo and Sobo to represent him in this matter. The Minute Entry states that Magistrate Judge Baxter scheduled a telephonic conference for August 28, 2013; directed plaintiff to advise his new counsel to enter an appearance in this action as soon as possible and to apprise new counsel of the scheduled conference; and further directed plaintiff to advise the court if he failed to retain Sobo and Sobo.
On August 28, 2013, Magistrate Judge Baxter held a stenographically-recorded telephonic status conference. Counsel for defendants advised the court that plaintiff could not be reached for the call.
On August 29, 2013, Magistrate Judge Baxter issued a Text Order (Dkt. No. 40) stating as follows:
Due to plaintiff's failure to participate in the 8/28/2013 telephonic conference, the scheduling/status conference is rescheduled to 9/6/2013 at 3:00 p.m. before U.S. Magistrate Judge Andrew T. Baxter. Defense counsel is directed to initiate the call to chambers at 315-234-8600. PLAINTIFF IS WARNED THAT HIS FAILURE TO PARTICIPATE IN THE RESCHEDULED TELEPHONIC CONFERENCE, OR HIS FAILURE TO OTHERWISE COMPLY WITH THE DIRECTION OF THIS COURT OR COOPERATE IN THE TIMELY PROSECUTION OF THIS ACTION, MAY RESULT IN THE IMPOSITION OF SANCTIONS, INCLUDING POSSIBLE DISMISSAL OF THIS ACTION.
The Clerk served a copy of the August 28, 2013 Minute Entry and August 29, 2013 Text Order on plaintiff by regular and certified mail.
The Minute Entry for the September 6, 2013 stenographically-recorded telephonic status conference states:
Plaintiff reports that he has been unable to find counsel to represent him in this matter, however he would like additional time to do so. Judge Baxter grants the plaintiff a final additional period of time to retain counsel before the schedule is reset. A follow-up telephonic conference is scheduled for 10/18/2013 at 10:30 a.m. Either the newly ...