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Holmes v. Johnny G'S Restaurant, Inc.

United States District Court, N.D. New York

October 17, 2014



LAWRENCE E. KAHN, District Judge.


Pro se Plaintiff Robert Holmes ("Plaintiff")[1] brings this action to recover damages for personal injuries sustained in an automobile accident. Dkt. No. 1 ("Complaint"). Presently before the Court are Motions to dismiss by Defendants Johnny G's Restaurant, Inc. ("Johnny G's"); 150 Partition Street, Inc. ("150 Partition"); and Dutch Ale House, Inc. ("Dutch") (collectively, "Defendants").[2] Dkt. Nos. 46; 47; 50 (collectively, "Motions"). For the following reasons, Defendants' Motions are granted, and this case is dismissed.


Plaintiff alleges that Defendants unlawfully served alcoholic beverages to Plaintiff's companion, Stephen Manning ("Manning"), who was visibly intoxicated when served, and that Plaintiff later suffered serious personal injuries as a passenger in Manning's vehicle when Manning lost control of the vehicle. See Compl.

Plaintiff commenced this action on December 22, 2011. Compl. In a Discovery Order dated February 1, 2013, Magistrate Judge Randolph F. Treece noted that "Plaintiff has not yet served Discovery Responses nor medical authorizations, even though Discovery Demands were served on or about October 30, 2012." Dkt. No. 20. The Court subsequently extended several discovery deadlines, but Plaintiff failed to comply with the Court's Scheduling Orders. See Dkt. Nos. 25; 28; 32.

On February 25, 2014, Plaintiff's counsel filed a sealed Motion to withdraw, stating that Plaintiff had moved to Arizona, and counsel had been unable to contact Plaintiff for a significant period of time. Dkt. Nos. 35; 37. Plaintiff did not respond to his counsels' Motion to withdraw. See Docket. On May 2, 2014, Judge Treece granted the Motion, noting that "over the past four months [Plaintiff's attorneys] have made an extraordinary effort to locate [Plaintiff], but to no avail." May Order at 1. Judge Treece further stayed the proceedings until July 7, 2014, to allow Plaintiff an opportunity to retain new counsel, or to inform the Court if he wished to proceed pro se. Id. The May Order was mailed to Plaintiff at his last two known addresses but was returned as "undeliverable" each time. Dkt. Nos. 41; 43.

Judge Treece held a telephone conference on July 11, 2014, where the Court indicated that it had not received any contact from Plaintiff regarding new counsel or his current address. Dkt. No. 44. Defendants indicated that they intended to file Motions to dismiss. Id. Again, a copy of the proceedings was mailed to Plaintiff at his last known address, and was returned to the Court as undeliverable. Dkt. No. 45.


Pursuant to Federal Rule of Civil Procedure 41(b), a court may dismiss an action "[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order[.]" FED. R. CIV. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); see also L.R. 41.2. "This power to dismiss an action may be exercised when necessary to achieve orderly and expeditious disposition of cases." Freeman v. Lundrigan, No. 96-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996) (citing Rodriguez v. Walsh, No. 92-Civ-3398, 1994 WL 9688, at *1 (S.D.N.Y. Jan. 14, 1994)); see also Dodson v. Runyon, 957 F.Supp. 465, 469 (S.D.N.Y. 1997) (citing Nita v. Conn. Dep't of Envtl. Prot., 16 F.3d 148, 485 (2d Cir. 1994)). However, given the harsh nature of Rule 41(b) dismissals, such dismissals are "appropriate only in extreme circumstances." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). Furthermore, the Second Circuit has instructed courts to accord pro se plaintiffs particular leniency in procedural matters such as these. Id.

In determining whether to dismiss a plaintiff's case under Rule 41(b), a court must consider five factors: (1) the duration of the plaintiff's failures; (2) whether the plaintiff has received notice that further delays will result in dismissal; (3) the likelihood that further delay will prejudice the defendant; (4) the need to alleviate court calendar congestion balanced against the need to protect the plaintiff's right to due process; and (5) the efficacy of lesser sanctions. Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988). No single factor is dispositive in this analysis; courts must weigh all five in determining whether dismissal is warranted under Rule 41(b). United States ex rel. Drake v. Norden Sys., 375 F.3d 248, 254 (2d Cir. 2004).

A. Duration

First, in weighing the duration factor of the Rule 41(b) analysis, a court considers both "(1) whether the failures to prosecute were those of the plaintiff; and (2) whether these failures were of significant duration." Id. at 255.

Here, Plaintiff has not responded to Defendants' discovery demands dating back to October 2012. See Docket. Moreover, in May 2014, Plaintiff's counsel indicated that he had been unable to locate Plaintiff for the past four months. May Order at 1. Furthermore, Plaintiff did not respond to his counsel's Motion to withdraw, appear at conferences held in May and July 2014, or notify the Court whether he had obtained new counsel or intended to proceed pro se. Finally, the Court has made repeated attempts to mail Orders to Plaintiff at his last two known addresses-each returned as undeliverable-and Plaintiff has not provided a new address or otherwise made any contact with the Court for approximately a year. See Docket; May Order. Defendants, on the other hand, have fully engaged in the discovery ...

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