United States District Court, N.D. New York
MARK EDWARD LYMAN, Albany, New York, Plaintiff pro se.
JUSTIN L. ENGEL, ESQ., OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany, New York, Attorneys for Defendant.
DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
On March 23, 2012, Plaintiff commenced this action pro se alleging that Defendants violated his rights under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; and the Civil Rights Act of 1991. See Dkt. No. 1. Plaintiff's amended complaint alleges that Defendant retaliated against him in his employment because of his involvement in an advocacy organization for childhood victims of sexual abuse. See Dkt. No. 6.
The Court issued a Uniform Pretrial Scheduling Order ("UPTSO") that set, inter alia, the discovery deadline on October 31, 2014. See Dkt. No. 37. On July 8, 2014, Defendant served interrogatories and document requests upon Plaintiff. See Dkt. No. 45-2 at ¶ 3. Plaintiff's responses were due by August 11, 2014. Plaintiff sought and obtained two extensions of time to respond until September 30, 2014. See id. at ¶¶ 4-5. Plaintiff, however, failed to provide responses. On November 5, 2014, Defendant filed a motion to compel discovery. See Dkt. No. 41 at 1. Thereafter, this Court entered a Text Order directing Plaintiff to respond to Defendant's motion by November 14, 2014. See Dkt. No. 42. After Plaintiff again failed to respond, the Court issued an Order permitting Defendant to file a motion to compel discovery and/or seek sanctions. See Dkt. No. 44 at 1. The Court directed Plaintiff to provide his responses by December 5, 2014, and ruled that "[a]ny and all objections are deemed waived." See id. at 2. Further, the Court forewarned Plaintiff that his failure to comply may result in sanctions pursuant to Rule 37, including the dismissal of his complaint. See id. Notwithstanding the Court's order deeming any and all objections waived, Plaintiff served responses with numerous general objections as well as specific objections. In light of Plaintiff's failure to respond entirely to several interrogatories and Plaintiff's "largely non-responsive" information, Defendant sought an order of dismissal of Plaintiff's amended complaint pursuant to Rules 16, 37, and 41(b) of the Federal Rules of Civil Procedure on December 15, 2014. See Dkt. No. 45-2 at ¶ 9; Dkt. No. 45-1. A Text Notice was issued advising Plaintiff of the date when his response to the motion was due. After Plaintiff's response deadline expired, the Court sua sponte extended his time to reply to Defendant's motion until February 3, 2015. Despite being granted this extension, Plaintiff still failed to respond to Defendant's motion.
In a Report and Recommendation dated March 26, 2015, Magistrate Judge Treece recommended that the Court dismiss this action in light of Plaintiff's failure to prosecute and abide by court orders. See Dkt. No. 49. Magistrate Judge Treece addressed the five factors the Court is required to consider in determining whether dismissal under Rules 37 and 41(b) of the Federal Rules of Civil Procedure is appropriate. Specifically, Magistrate Judge Treece found that "Lyman's inactions are not due to a mere oversight and, thus, his belated and inadequate attempts to provide responses should not garner him a reprieve." See id. at 9. Additionally, in considering evidence of Plaintiff's failure to prosecute, Magistrate Judge Treece found that,
[s]ince the issuance of the UPTSO, Lyman has never communicated with this Court. Once the discovery and sanction matters were presented to the Court, Lyman remained incommunicado with the Court. Thus, his inaction has exceeded the four-month threshold and clearly evinces a failure to duly prosecute this action... Lyman has been warned about his obligation to comply with discovery, and the Court also advised him of his obligation to respond to Felter's Motions and the dates those responses were due. The Court concludes that after each notification went unheeded within the last four-month period, Lyman has abandoned his case.
See id. at 10 (internal citation omitted). Having considered the relevant factors, Magistrate Judge Treece concluded that the Court could not "fathom of any lesser sanctions that would be consequential and efficacious than the austerity of a dismissal." See id. at 9.
A litigant's failure to file objections to a magistrate judge's report-recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and former 6(e) of the Federal Rules of Civil Procedure).
Rule 41(b) of the Federal Rules of Civil Procedure provides that,
[i]f 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). Dismissal of an action with prejudice under this rule is a "harsh remedy to be utilized only in extreme situations." LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (internal quotation marks and citation omitted). This is particularly true where a plaintiff is proceeding pro se. See, e.g., Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (holding that the circuit court will give due deference to the district court's Rule 41(b) dismissal of a pro se litigant's complaint "only when the circumstances are sufficiently extreme").
Notwithstanding a plaintiff's pro se status, Rule 41(b) gives the district court explicit authority to dismiss a case where the plaintiff fails to comply with the court's orders or otherwise fails to prosecute the action "diligently." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). As explained in Lyell Theatre, this authority "is vital to the efficient administration of judicial affairs and provides meaningful access for other prospective litigants to overcrowded courts." Id. at 42.
In determining whether dismissal for failure to prosecute is warranted, the district court must consider the following factors, none of which are dispositive: (1) the duration of the plaintiff's failures; (2) whether the plaintiff received notice that further delays would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay; (4) whether an appropriate balance has been struck between alleviating the court's calendar congestion and protecting the litigants' due process rights; and (5) whether lesser ...