United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
Before the court are two unopposed motions by Defendants requesting that the court dismiss the instant action for failure to prosecute. Specifically, Defendants Ann Marie T. Sullivan, M.D.,  in her official capacity as Acting Commissioner of the New York State Office of Mental Health, and Ramin Parsey, M.D., in his official capacity as Chairman of the Department of Psychiatry at University Hospital of the State University of New York at Stony Brook (the "State Defendants"), have moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiffs failure to prosecute or to cooperate in discovery. (State Defs.' Not. of Mot. (Dkt. 20).) Defendant Suffolk County (the "County Defendant") also filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 41(b) and 37(d). (Cnty. Def.'s Not. of Mot. (Dkt. 27).) For the reasons set forth below, Defendants' motions are GRANTED and the Complaint is DISMISSED WITHOUT PREJUDICE.
Plaintiff Brandon 0. ("Plaintiff') filed his Complaint on July 19, 2013, alleging, inter alia, that Defendants violated the integration mandate of the Americans with Disabilities Act, 28 C.F.R. § 35.130, by failing to provide Plaintiff with Assertive Community Treatment ("ACT") services or other compulsory outpatient services available under New York Hygiene Law § 9.60 ("Kendra's Law"), upon his assessment for involuntary psychiatric commitment. (Compl. (Dkt. 1).) Plaintiff also sought to represent a class and subclass of similarity situated individuals. ( Id. ¶¶ 15-22.) The case was filed as related to Mental Disability Law Clinic v. Hogan, No. 12-CV-2605 (E.D.N.Y.) ("MDLC v. Hogan"), which asserted similar claims. (See Aug. 1, 2013, Ltr. (Dkt. 13) (letter from counsel explaining the basis for relation).) The court granted Defendants an extension of time to respond to the Complaint until October 4, 2013. (Aug. 20, 2013, Order.)
At a conference held September 11, 2013, regarding (i) Plaintiff's action, (ii) MDLC v. Hogan, and (iii) three additional related cases, the court granted limited discovery on the issue of the plaintiffs' standing. (See Gatto Decl. in Supp. of Cnty. Def.'s Mot. ("Gatto Decl.") (Dkt. 28) ¶ 11; Hogan Sept. 11, 2013, Min. Entry.) Magistrate Judge Robert M. Levy ordered discovery on standing to be completed in the five cases by December 6, 2013, including: (i) depositions of the individual plaintiffs (including of Plaintiff), as well as (ii) the execution by individual plaintiffs of authorizations to release their medical records (including by Plaintiff). (See Hogan Sept. 17, 2013, Min. Entry; Gatto Decl. ¶ 12.) Defendants' time to respond to the Complaint was extended to a date to be set after the completion of such discovery. (Hogan Oct. 2, 2013, Ltr. (Hogan Dkt. 50); Hogan Jan. 8, 2014, Order.)
On October 4, 2013, the State Defendants noticed Plaintiff's deposition for November 13, 2013. (See Pastore Decl. in Supp. of State Defs.' Mot., Ex. 1 (Dkt.21-1) at 3-4; Gatto Decl., Ex. A (Dkt. 28-1).) Counsel for all Defendants requested that the individual plaintiffs execute authorizations for release of their medical records. (Gatto Decl. ¶ 13.)
At a status conference held November 1, 2013, plaintiffs' counsel, a clinical program at Touro Law, stated that the clinic was having difficulty locating its clients, including Plaintiff Brandon O. (Hogan Nov. 1, 2013, Min. Entry; Gatto Decl. ¶ 15.) Accordingly, Judge Levy extended the time to complete depositions of individual plaintiffs to January 24, 2014, and scheduled a subsequent conference for January 30, 2014. (Hogan Nov. 1, 2013, Min. Entry; Gatto Decl. ¶ 15.) At the January 30, 2014, conference, plaintiffs' counsel represented that the clinic still had not been able to locate the individual plaintiffs. (Hogan Jan. 30, 2014, Min. Entry; Gatto Decl. ¶ 16.) Accordingly, Plaintiff has never appeared for a deposition; nor has Plaintiff provided the County Defendant with a medical record release authorization. (Gatto Decl. ¶ 17-18.)
Defendants' counsel noted their intention to move to dismiss the Complaint for failure to prosecute at the January 30, 2014, conference. (Hogan Jan. 30, 2014, Min. Entry.) On January 31, 2014, a proposed briefing schedule for Defendants' anticipated motions to dismiss was submitted to the court (Jan. 31, 2014, Ltr. (Dkt. 19)), and it was approved on February 3, 2014. (Feb. 3, 2014, Order.) On April 29, 2014, the State Defendants filed their fully-briefed motion (Dkt. 20); the County Defendant filed its motion on May 1, 2014 (Dkt. 27).
Plaintiffs counsel submitted a brief letter response to Defendants' motions, dated April 10, 2014. (Resp. to State Defs.' Mot. (Dkt. 24); Resp. to Cnty. Def.'s Mot. (Dkt. 31).) Counsel stated that the clinic had still been unable to contact Plaintiff. Specifically, counsel represented that since October 3, 2013, Plaintiff had not responded to phone messages left for Plaintiff both at the cellular telephone number he had provided and "at his day treatment provider, " although he had "indicat[ed] to counsel on [October 3, 2013] that he was willing to release his records and be deposed." (Resp. to State Defs.' Mot. at 2.) When the clinic again phoned that cellular number on the date of the letter (April 10, 2014), it learned that Plaintiff was "no longer in possession" of that phone number, as another person answered; additionally, counsel had received no reply to another phone message left for Plaintiff the previous day at his treatment provider. (Id.) Nor had counsel received any response to letters that had been sent both to Plaintiffs home address and in care of his treatment provider, although the letters had not been returned. (Id.) In the absence of any instruction from Plaintiff, counsel indicated that the clinic was unable to take a position on the motion; however, counsel also noted that "given [Plaintiffs] mental health... conditions, " "one may not assume from [his] actions... that [he] do[es] not wish to prosecute [his] case." (Id.) Since the filing of these motions in April and May of 2014, the court has received no notice of any change to this situation.
A. Federal Rule of Civil Procedure 41(b)
A district court may dismiss an action in the exercise of its sound discretion "[i]f the plaintiff fails to prosecute or to comply with... a court order." Fed.R.Civ.P. 41(b); see Lewis v. Rawson, 564 F.3d 569, 575 (2d Cir. 2009) (noting abuse of discretion standard of review). Such dismissal may occur either on motion of defendant or by the court sua sponte. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); see also Lewis, 564 F.3d at 575 (noting the district court's "inherent power" "to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases" (quoting Link, 370 U.S. at 630-31) (internal quotation marks omitted)). While dismissal is an appropriate remedy for failure to prosecute to avoid "undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts, " Link, 370 U.S. at 629-30, it is a "harsh remedy' that should be utilized only in extreme situations.'" Lewis, 564 at 576-77 (quoting Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)). Dismissal under this Rule is presumed to be with prejudice, unless the court expressly orders otherwise. Fed.R.Civ.P. 41(b); Hoffman v. Wisner Classic Mfg. Co., 927 F.Supp. 67, 71-72 (E.D.N.Y. 1996).
The Second Circuit instructs that a court deciding a motion to dismiss for failure to prosecute should consider five factors, namely: (1) the duration of the delay created by plaintiffs failure to prosecute; (2) whether plaintiff was given notice that further delay would result in dismissal; (3) whether defendant was likely to be prejudiced by further delay; (4) how the need to alleviate court calendar congestion weighs against plaintiffs right to his day in court; and (5) whether lesser sanctions would be efficacious. See Lewis, 564 F.3d at 576 (citing United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)). "No one factor is dispositive, " and in weighing the five factors, the court should consider the record of the entire case as a whole. See Drake, 375 F.3d at 254.
Consideration of these factors supports dismissal. First, the duration of delay weighs strongly in favor of dismissal, particularly given the nature of that delay. At the time Plaintiffs counsel submitted its response to these motions, Plaintiffs deposition had been noticed over six months prior, and Plaintiff had for the same length oftime failed to respond to counsel's numerous attempts to contact him. (Resp. to State Defs.' Mot. at 2.) To date, over a year has passed, and Plaintiff has lodged no opposition to this motion and made no attempt to resume the discovery process. This length of delay is significant and warrants dismissal. See Brow v. City of New York, 391 F.Appx. 935, 936-37 (2d Cir. 2010) (summary order) (finding that delay of nearly six months supported dismissal); Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 664 (2d Cir. 1980) (finding delay of six months, during which period the plaintiff failed to comply with a court-ordered deadline and failed generally to move the case forward, to be sufficient justification for dismissal); Aguilar v. Kirschenbaum & Phillips, P.C., No. 11-CV-1085 (SJF), 2012 WL 1744852, at *3 (E.D.N.Y. May 15, 2012) (holding five months of delay to be sufficient grounds for dismissal); Sanders v. Does, No. 05-CV-7005 (RJS), 2008 WL 2117261, at *3 (S.D.N.Y. May 15, 2008) (finding that nine months of delay weighed in favor of dismissal). This conclusion is bolstered by the nature of the delay here. The issue of standing is "the threshold question in every federal case, " Warth v. Seldin, 422 U.S. 490, 498 (1975); therefore, the inability to complete discovery as to Plaintiffs standing-and to contact Plaintiff at all prevents this action from moving forward in any way. See Kent v. Scamardella, No. 07-CV-844 (SHS), 2007 WL 3085438, at *2 (S.D.N.Y. Oct. 18, 2007) ("Although three months is not necessarily a delay of significant duration, '... the delay here has functioned ...