United States District Court, Western District of New York
DECISION AND ORDER
WILLIAM M. SKRETNY SENIOR UNITED STATES DISTRICT JUDGE
In this personal injury action, Plaintiff Ronald Joseph Karpio alleges that he was injured while operating a gas-cylinder torch manufactured by Defendants Worthington Cylinder Wisconsin, LLC, and Worthington Cylinder Corporation (collectively “Worthington”).
Presently before this Court is Worthington’s Motion to Dismiss under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute, and under Rule 37(b) for failure to comply with court orders. For the reasons stated below, Worthington’s motion is granted.
Plaintiff has been represented by counsel since the inception of this case. Plaintiff initiated this action in New York State Supreme Court, Cattaraugus County, on March 8, 2012. (Docket No. 1.) Worthington removed the action to federal court on July 24, 2012. (Id.) Plaintiff thereafter took no action, which resulted in this Court issuing a Notice Before Dismissal for Failure to Prosecute on January 28, 2013. (Docket No. 6.) Plaintiff’s counsel responded to that notice in an affirmation filed on March 1, 2013, explaining that his lack of attention to this matter was largely the result of confusion concerning his admission status and difficulty with the electronic filing system. (Docket No. 7.) This Court accepted counsel’s explanation, and, with those two issues resolved, permitted the case to proceed. (Docket Nos. 7, 8.)
Plaintiff thereafter filed a complaint against all defendants. (Docket No. 9.) He then took no further action. After this matter was referred to the Honorable H. Kenneth Schroeder, Jr., United States Magistrate Judge, on August 27, 2013, Plaintiff failed to comply with the deadlines in Judge Schroeder’s case management orders (Docket Nos. 14, 19), failed to cooperate with the mediator and participate in automatic mediation (Docket Nos. 20, 23), and failed to appear before Judge Schroeder or respond to the court’s attempts to reach him (Docket No. 23). Judge Schroeder therefore recommended that Worthington file the instant motion to dismiss. (Docket No. 23.) Plaintiff did not respond to Judge Schroeder’s recommendation in any way.
Following Judge Schroeder’s recommendation, Worthington filed a Motion to Dismiss for Failure to Prosecute on January 28, 2015. (Docket No. 24.) This Court issued a scheduling order on February 2, 2015, directing Plaintiff to file a response by February 17, 2015. (Docket No. 25.) Plaintiff failed to file a response as directed. This Court thereafter issued another scheduling order on March 9, 2015, directing Plaintiff to file a response to Worthington’s motion by March 25, 2015. (Docket No. 26.) Again, Plaintiff failed to file a response as directed.
A. Dismissal under Rule 41(b) For Failure to Prosecute
Dismissal of this case is warranted pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides that:
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 (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b).
Rule 41(b) does not define failure to prosecute. But the Second Circuit has stated that failure to prosecute “can evidence itself either in an action lying dormant with no significant activity to move it or in a pattern of dilatory tactics.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). Dismissal pursuant to Rule 41(b) falls within the court’s discretion. See id. at 42-43 (“the scope of review of an order of dismissal is confined solely to whether the trial court has exercised its inherent power to manage its affairs within the permissible range of its discretion”). It is, however, “a harsh remedy to be utilized only in extreme situations.” Harding v. Fed. Reserve Bank, 707 F.2d 46, 50 (2d Cir. 1983) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per curiam); see also Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980) (discussing the sanction of dismissal for failure to prosecute as “pungent, rarely used, and conclusive”). This is particularly true in cases involving pro ...