United States District Court, W.D. New York
KAREN ANDERSON and GARY C. HAMMER, Plaintiffs,
WILLIAM AIELLO, NICHOLAS PERUZZINI, PETER COLAFRANCESCI, SA MARK HAGGERY, SA CORNELIUS O'ROURKE, SA CHARLES DITTMER, SA EUGENE ALLMAN, SA KEVIN RYAN RET, SA BRIAN HURWITZ, B PATROL AGENT JOHN BULLINGTON, SA EUGENE ALLMAN, JOHN DOE 8, JOHN DOE 9, OHN DOE 10, JOHN DOE 11, JOHN DOE 12, and JOHN DOE 13, Defendants/Consol. Defendants.
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA UNITED STATES JUDGE
November 18, 2016, the Court directed the Plaintiffs to
respond to the Defendants' motion to dismiss (Docket No.
29) by January 6, 2017. The Plaintiffs did not do so. Thus,
on January 7, 2017, and in light of the Plaintiffs'
pro se status, the Court sua sponte
extended the time for the Plaintiffs to respond to the
Defendants' motion to January 23, 2017. In addition, the
Court warned that “failure to comply” with the
Court's scheduling order “is likely to result in
dismissal of [the Plaintiffs'] case with prejudice
pursuant to Fed.R.Civ.P. 41(b) and the Court's inherent
authority.” Docket No. 37. Once again, however, the
Plaintiffs failed to respond to the Defendants' motion.
Rule of Civil Procedure 41(b) allows a district court to
dismiss a case “[i]f the plaintiff fails to prosecute
or comply with [the Rules of Civil Procedure] or a court
order.” Courts consider a number of factors when
deciding whether to dismiss a case under Rule 41(b). Those
factors include whether:
(1) the plaintiff's failure to prosecute caused a delay
of significant duration;
(2) the plaintiff was given notice that further delay would
result in dismissal;
(3) the defendant was likely to be prejudiced by further
(4) the need to alleviate court calendar congestion was
carefully balanced against the plaintiff's right to an
opportunity for a day in court; and
(5) the trial court adequately assessed the efficacy of
Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009).
After carefully considering each of these factors, the Court
finds that dismissal is warranted in this case.
first factor “is not relevant where, as here, [the
Plaintiffs] failed to comply with [multiple] court orders and
otherwise demonstrated a lack of respect for the
court.” Peart v. City of New York, 992 F.2d
458, 461 (2d Cir. 1993).
second factor supports dismissal: the Court warned the
Plaintiffs that failure to respond to the Defendants'
motion to dismiss would “likely” result in
dismissal. Despite that clear warning, the Plaintiffs still
failed to respond to the Defendants' motion.
third factor also weighs in the Defendants' favor. The
Defendants obviously benefit from moving to dismiss without
opposition. But if the Court denied the Defendants'
motion to dismiss (a question on which the Court offers no
opinion), this case would proceed to discovery, further
motion practice, and, possibly, trial. The Defendants
“should not be forced to bear the expense of defending
a lawsuit” through each of these additional procedural
stages “when the plaintiff has shown little or no
interest in pursuing that litigation.” Antonios A.
Alevizopoulos & Ass'c, Inc. V. Comcast Int'l
Holdings, Inc., No. 99 Civ. 9311 SAS, 2000 WL 1677984,
at *3 (S.D.N.Y. Nov. 8, 2000).
fourth factor also tips in the Defendants' favor. This
case has not been scheduled for trial, nor has it been
scheduled for oral argument. Thus, it has not put a
significant strain on the Court's calendar. But, at the
same time, the Plaintiffs' failure to respond to the
Defendants' motion on two different occasions suggests
that the Plaintiffs no longer wish to have their day in
court. Likewise, the Plaintiffs' failure to even request
additional time to file a response-a procedure with which
they are familiar, see Docket Nos. 4, 6 &
7-evidences a lack of interest in moving this case forward.
The Court has attempted to protect the Plaintiffs' right
to have their case heard, particularly given their status as
pro se litigants; as noted, the Court sua
sponte extended the Plaintiffs' deadline for
responding to the Defendants' motion to dismiss. But
“[b]ecause [the Plaintiffs] ha[ve] made no effort to
comply with the Court's directives or to prosecute
[their] action, it would be unfair to the numerous other
litigants who await the attention of this Court to permit
[the Plaintiff's] suit to remain on the docket.”
Feurtado v. City of New York, 225 F.R.D. 474, 480
(S.D.N.Y. 2004). In other words, the Court has considered the
Plaintiffs' “right to an opportunity for a day in
court, ” Lewis, 564 F.3d at 576, but that
right is entitled to little weight when the Plaintiffs have
not shown an intent to exercise the right. The Court cannot
allow this case to linger on its docket for months and months
in the hope that the Plaintiffs will eventually respond to
the Defendants' motion. The fourth factor therefore
weighs in the Defendants' favor. Finally, the Court
recognizes that dismissal is a harsh sanction, but it appears
that no lesser sanction would be effective. Because the
Plaintiffs are proceeding in forma pauperis, the
Court does not believe that monetary sanctions would be an
appropriate or effective sanction. The only other remedy the
Court could conceivably employ is to again direct the
Plaintiffs to respond to the Defendants' motion to
dismiss. But the Plaintiffs' failure to do so on two
prior occasions gives the Court little confidence that a
third order would be any more effective. “A court need
not beg a party to comply with its orders.”
Peters-Turnbell v. Bd. of Ed. of City of New York,
No. 96 CIV. 4914(SAS), 1999 WL 959375, at *4 (S.D.N.Y. Oct.
20, 1999). The fifth factor therefore weighs in favor of
after carefully considering each of the factors set forth
above, the Court concludes that dismissal is warranted
pursuant to Federal Rule of Civil Procedure 41(b). The Clerk
of the ...