United States District Court, S.D. New York
ORDER AND REPORT AND RECOMMENDATION TO THE HONORABLE EDGARDO RAMOS
FRANK MAAS, Magistrate Judge.
Wykoff Heights Medical Center and John Leison, its Director of Radiology (together, the "Defendants"), seek dismissal of this employment discrimination action for Plaintiff's failure to prosecute. For the reasons set forth below, I recommend that the Defendants' application be denied. I further have directed, however, that the Plaintiffs counsel provide the Plaintiff with a copy of this Order and Report and Recommendation, so that he will be aware of the past problems in this case, and that the Plaintiffs counsel compensate the Defendants for three hours of their counsel's wasted time.
On November 15, 2013, Plaintiff David Cruz ("Cruz") filed this action pro se, alleging that he was subjected to unequal terms and conditions of employment, and eventually terminated, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112, et seq. ("ADA"). (ECF No. 2). Your Honor subsequently referred the case to me for general pretrial supervision on April 2, 2014. (ECF No. 17).
On April 30, 2014, Anthony Chukwuka Ofodile ("Mr. Ofodile") entered a notice of appearance on behalf of Cruz. (ECF No. 21). Thereafter, with the Defendants' consent, Mr. Ofodile requested, and I granted, several modifications of a scheduling order that Your Honor previously had entered. (ECF Nos. 22, 23). Pursuant to the revised schedule, Cruz's amended complaint was to be filed by May 30, interrogatories and requests for documents were to be served by June 16, non-expert depositions were to be completed by October 31, and all discovery was to be completed by December 31, 2014. On June 6, 2014, Mr. Ofodile filed an amended complaint superseding Cruz's pro se complaint. (ECF No. 27).
Following the referral, I scheduled an in-court status conference for June 16, 2014, at 10:30 a.m., but Mr. Ofodile failed to appear for that conference. As a consequence, I entered an order that same day scheduling a further telephone conference for September 16, 2014. (ECF No. 28). Mr. Ofodile also failed to participate in that conference. Counsel for the Defendants, by comparison, attended both conferences.
During the telephone conference, Defendants' counsel indicated that Mr. Ofodile had not only failed to appear for the two scheduled conferences, but also had failed to (a) respond to inquiries concerning his inactivity, (b) respond to the Defendants' requests for discovery, (c) serve any discovery requests of his own, and (d) make Cruz available for a deposition that had been noticed for August 15, 2014. Following the phone conference, Defendants' counsel submitted a letter which summarized these transgressions and urged the Court to dismiss this action with prejudice. (ECF No. 32). My memo endorsement on that letter required Mr. Ofodile to submit an affidavit explaining why the action should not be dismissed. (ECF No. 34). This appears to have gotten Mr. Ofodile's attention. On September 24, 2014, he submitted an affidavit explaining that his failure to pursue this matter diligently was the result of the departure of his law firm's only two associates, and his own heavy case load. (ECF No. 36). Mr. Ofodile maintained, however, that he had missed both conferences due to miscommunications. (Id.).
A plaintiff has a duty to advance his case diligently and his failure to do so may result in dismissal for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See United States ex rel. Pervez v. Maimonides Med. Ctr., 415 F.Appx. 316, 317 (2d Cir. 2011) (citing Lyell Theater Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982)). Under Rule 41(b), a district court may dismiss an action "[i]f the plaintiff fails to prosecute or comply with [the] rules or a court order." Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Fed.R.Civ.P. 41(b)).
Before dismissing a case under Rule 41(b), the Court must address five factors:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
Lewis v. Frayne, 595 F.Appx. 35, 36 (2d Cir. 2014) (quoting Baptiste, 768 F.3d at 216). No single factor is dispositive. Id. Rather, the Court must consider the "record as a whole" and be "mindful that such dismissals are the harshest of sanctions' and... should be preceded by particular procedural prerequisites, ' including notice of the sanctionable conduct, the standard by which it will be assessed, and an opportunity to be heard.'" Id. at 36-37 (quoting Mitchell v. Lyons Prof'l Servs., Inc., 708 F.3d 463, 467 (2d Cir. 2013)). Here, the record does not warrant dismissal.
There is no question that Mr. Ofodile's representation of Cruz in this matter has fallen well below the appropriate standard of conduct. He not only has obstructed defense counsel's efforts to progress this case, but also has done his own client a disservice by failing to appear at court conferences and pursue discovery in a timely fashion. Nevertheless, it appears that Mr. Ofodile's inaction is the result of negligence - not an intentional attempt to engage in dilatory tactics to prejudice the Defendants. Where, as here, the delay created by a failure to actively pursue a case does not cause any "particular, or specially burdensome, prejudice... beyond the delay itself, " dismissal is not appropriate. Id. at 38.
Moreover, it is clear that involuntary dismissal - the "harshest of sanctions" - is unnecessary to move this case along. Indeed, almost immediately after the September 16 conference, Mr. Ofodile provided responses to the Defendants' interrogatories and document requests, and he has served discovery requests of his own. In light of Mr. Ofodile's apparent willingness and readiness to prosecute this case, and in the absence of any suggestion that Cruz is somehow responsible for his counsel's delay, dismissal of this case would be an excessive sanction. See Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 355 (S.D.N.Y. 2005) (quoting Dodson v. Runyon, 86 F.3d 37, 39 (2d Cir. 1996)) ("[T]he more ...