United States District Court, E.D. New York
DECISION AND ORDER ADOPTING RECOMMENDATION
DONNELLY, District Judge.
me is Magistrate Judge Steven Locke's recommendation that
this action be dismissed because the plaintiff has failed to
comply with orders and repeatedly failed to appear.
plaintiff filed this lawsuit on November 12, 2014 for damages
and declaratory and injunctive relief, alleging violations of
the Americans with Disabilities Act and the Rehabilitation
Act, in connection with the alleged inaccessibility of
parking facilities and sidewalks in Roslyn Village. The
complaint was amended on June 30, 2015.
a status conference on December 23, 2015.At that hearing,
the parties represented that they were nearing resolution of
the plaintiffs claims.
plaintiffs lawyer filed a motion to withdraw on February 17,
2016. (ECF No. 23.) I held a hearing on March 2, 2016
regarding the motion to withdraw. Although the plaintiff was
ordered to attend, he failed to do so, and provided no reason
for his absence. The plaintiffs counsel withdrew with
permission from the Court on March 2, 2016. Thereafter, the
plaintiff proceeded pro se.
December 21, 2016, the defendants filed a pre-motion
conference letter regarding their anticipated motion for Rule
11 sanctions against the plaintiff, in connection with the
plaintiffs alleged factual misstatements made in the amended
complaint. (ECF No. 34.) Judge Locke held a hearing regarding
the defendants' letter on January 18, 2017, which the
plaintiff failed to attend. The plaintiff was warned that
"[r]epeated failures to appear may result in a
Recommendation to the District Court that this action be
dismissed" pursuant to Federal Rules of Civil Procedure
41.(ECF No. 25.) Despite this warning, the
plaintiff did not attend the status conference that Judge
Locke scheduled for January 30, 2017. He was again warned
that his failure to appear may result in a recommendation
that this action be dismissed. Finally, on February 6, 2017,
the plaintiff failed to appear before Judge Locke for the
third time. The plaintiff has not provided any explanation
for his repeated absences.
February 6, 2017, Judge Locke issued a recommendation that
this action be dismissed with prejudice for failure to
prosecute, pursuant to Rule 41 of the Federal Rules of Civil
Procedure. The time to object to the recommendation has
passed, and no objections have been filed.
court "may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). If there were no
objections, the district court need only find that the
recommendation was not clearly erroneous. White v. W.
Beef Properties, Inc., No. 07-cv-2345-RJD-JMA, 2011 WL
6140512, at *2 (E.D.N.Y.Dec.9, 2011).
permits a court, on its own, to dismiss an action for failure
to prosecute. Fed.R.Civ.P. 41(b); see LeSane v.
Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d
Cir.2001) ("[I]t is unquestioned that Rule 41(b) also
gives the district court authority to dismiss a plaintiffs
case sua sponte for failure to prosecute[.]")
However, dismissal pursuant to Rule 41 is a harsh remedy.
See Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996);
see also Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir.
2004) ("Rule [41(b)] is intended to serve as a rarely
employed, but useful, tool of judicial administration
available to district courts in managing their specific cases
and general caseload."). Thus, the Second Circuit has
provided that a district court, considering dismissal, should
weigh the following factors:
1) the duration of plaintiff s failures or non-compliance; 2)
whether plaintiff had notice that such conduct would result
in dismissal; 3) whether prejudice to the defendant is likely
to result; 4) whether the court balanced its interest in
managing its docket against plaintiffs interest in receiving
an opportunity to be heard; and 5) whether the court
adequately considered the efficacy of a sanction less
draconian than dismissal.
Baffa v. Donaldson, Lufkin & Jenrette Sec.
Corp., 222 F.3d 52, 63 (2d Cir. 2000)
the circumstances, all of the above-listed factors favor
dismissal of this case with prejudice. The plaintiff, despite
multiple orders from the court, has failed to appear for four
separate hearings, and has not communicated with the court
regarding his absences. Moreover, the plaintiff was twice
warned by Magistrate Judge Locke-in his January 18 and
January 30, 2017 Orders-that failure to appear would result
in a recommendation of dismissal. Nonetheless, the plaintiff
did not comply with the judge's orders.
defendants have suffered prejudice as a result of the
plaintiffs conduct-including unnecessary appearances at four
conferences in federal court; no sanction less severe than
dismissal would avoid future prejudice to the defendants.
Further, the plaintiffs repeated failure to appear interferes
with the court's "orderly and expeditious
disposition of cases." Thomas v. Cty. of
Suffolk, No. 08-cv-400-JFB-WDW, 2010 WL 5452071, at *3
(E.D.N.Y.Dec. 28, 2010). Finally, I have considered whether
less drastic sanctions are appropriate, and conclude that
they are not, especially in light of the plaintiffs lack of
communication with the Court. Thus, dismissal is warranted. I
have considered the full record and the applicable law. I
have reviewed the recommendation for clear error; ...