United States District Court, S.D. New York
NICOLE P. WHITE, Plaintiff,
MARIGRACE MILLER, Defendant.
ORDER OF DISMISSAL
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
proceeding pro se, initiated this Action by filing a
Complaint on January 23, 2019. (See Compl. (Dkt. No.
2).) Plaintiff was granted in forma pauperis
("IFP") status on January 25, 2019, which entitled
Plaintiff to complete service on Defendant through the United
States Marshals (the "Marshals"). (Dkt. No. 3.) The
Order of Service was issued on March 15, 2019. (See
Order of Service (Dkt. No. 9).) On June 19, 2019, the
Marshals noted on the record that they were unable to execute
service on the sole Defendant in this Action, Marigrace
Miller, because she was not employed at the address provided
by Plaintiff. (See Dkt. No. 15.) Plaintiff did not
provide any other contact or identifying information for
Defendant. (See Compl.; Am. Compl. (Dkt. No. 7).)
The Court then issued an Order to Show Cause on November 4,
2019, directing Plaintiff to provide accurate contact
information for Defendant within 30 days so that the Marshals
may complete service or risk dismissal of her case.
(See Order to Show Cause (Dkt. No. 16).) The Order
to Show Cause was mailed to Plaintiff n November 5, 2019,
(see Dkt. (minute entry for Nov. 5, 2019)), but
Plaintiff has not responded.
Court has the authority to dismiss a case for failure to
prosecute. See Fed. R. Civ. P. 41(b). Rule 41(b) of
the Federal Rules of Civil Procedure provides that a case may
be involuntarily dismissed if a plaintiff "fails to
prosecute or to comply with these rules or a court
order." Although Rule 41(b) expressly addresses a
situation in which a defendant moves to dismiss for failure
to prosecute, it has long been recognized that a district
court has the inherent authority to dismiss for failure to
prosecute sua sponte. See LeSane v. Hall's Sec.
Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (citing
Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)).
dismissal under Rule 41(b) is subject to the sound discretion
of the district courts, see U.S. ex rel. Drake v. Norden
Sys., Inc., 375 F.3d 248, 250-51 (2d Cir. 2004), the
Second Circuit has stated that a Rule 41(b) dismissal is
"a harsh remedy to be utilized only in extreme
situations." LeSane, 239 F.3d at 209 (internal
quotation marks omitted) (quoting Theilmann v. Rutland
Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per
curiam)). The Second Circuit has further cautioned, "pro
se plaintiffs should be granted special leniency regarding
procedural matters." Id. (italics omitted)
(citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.
1996)). "However, even pro se litigants must prosecute
claims diligently, and dismissal with prejudice is warranted
where the court gives warning." Jacobs v. County of
Westchester, No. 99-CV-4976, 2008 WL 199469, at *3
(S.D.N.Y. Jan. 22, 2008) (italics omitted).
exercising its discretionary authority to dismiss for failure
to prosecute, a district court should consider the following
 the duration of the plaintiffs failures,  whether
plaintiff had received notice that further delays would
result in dismissal,  whether the defendant is likely to
be prejudiced by further delay,  whether the district
judge has taken care to strike the balance between
alleviating court calendar congestion and protecting a
party's right to due process and a fair chance to be
heard ... and  whether the judge has adequately assessed
the efficacy of lesser sanctions.
Hardimon v. Westchester County, No. 13-CV-1249, 2014
WL 2039116, at *1 (S.D.N.Y. May 16, 2014) (alterations
omitted) (quoting LeSane, 239 F.3d at 209). No.
single factor is dispositive. See LeSane, 239 F.3d
at 210 (citing Nita v. Conn. Dep 7 of Envtl.
Prot, 16 F.3d 482, 485 (2d Cir. 1994));
Hardimon, 2014 WL 2039116, at *1.
Court concludes that these factors weigh in favor of
dismissing this Action. Plaintiff initiated this Action on
January 23, 2019, against Defendant, alleging that Defendant,
purportedly an employee at the Office of Children and Family
Services ("OCFS"), "coerced" a
"false accusation" that Plaintiff had engaged in
sexual abuse and neglect of her daughter and
"teas[ed]" Plaintiff about a Christmas card and
picture. (See Compl. 5.) In an Amended Complaint,
filed on February 26, 2019, Plaintiff added to her list of
allegations, complaining of other acts facilitated by
Defendant that allegedly led to the termination of her
parental rights. (See Am. Compl.
5-10.) The Marshals indicated that service was
ineffective on Defendant on June 19, 2019. (Dkt. No. 15.)
After more than four months of inaction, the Court spurred
Plaintiff to provide accurate contact information so that the
Marshals may serve Defendant. (See Order to Show
Cause.) Further, Plaintiff was warned that, generally,
service of the summons and Complaint was to be completed
within 90 days of the date the summons issues and that it is
Plaintiffs responsibility to request additional time for
service, which Plaintiff did not do. (See Order of
Service (Dkt. No. 9).) Here, the summons was issued on March
18, 2019, over 9 months ago. (See Dkt. (entry for
Mar. 18, 2019).) Plaintiff has demonstrated that she is able
to communicate with the Court, as she has sent multiple
letters, including a premature request for subpoenas, (Dkt.
No. 5), a letter requesting the appointment of pro bono
counsel, (Dkt. No. 6), and a request for an extension of time
to submit more "time to file the motion,
memorandum," even though there was no motion pending and
service had not been completed upon Defendant, (Dkt. No. 13).
However, it has now been nearly 2 months since the Court
issued its Order to Show Cause explaining that service upon
Defendant was necessary to continue the Action, and Plaintiff
has not provided new contact information or otherwise
communicated with the Court. Nearly a year has passed since
Plaintiff initiated the Action, and Defendant has still not
been located or served. The exhaustion of Court resources
caused by the need to respond to Plaintiffs numerous,
untimely submissions, filed without satisfying the requisite
element of service upon Defendant, also justify dismissal of
this case. See Caussade v. United States, 293 F.R.D.
625, 631 (S.D.N.Y. 2013) ("Because [plaintiff] has made
no effort to prosecute this action, it would be unfair to the
numerous other litigants who await the attention of this
Court to permit her suit to remain on the docket.");
Davison v. Grillo, No. 05-CV-4960, 2006 WL 2228999,
at *2 (E.D.N.Y. Aug. 3, 2006) (finding that dismissal was
appropriate in part because plaintiffs failure to timely
comply with court orders and prosecute the case wasted both
the defendants' and the court's resources).
a dismissal without prejudice appropriately takes into
account the efficacy of lesser sanctions. See Waters v.
Camacho, 288 F.R.D. 70, 71-72 (S.D.N.Y. 2013) ("The
sanction of dismissal without prejudice ... complies with the
fifth factor, considering the efficacy of lesser
this Action is dismissed without prejudice for failure to
prosecute. See Ramsaran v. Abraham, No. 15-CV-10182,
2017 WL 6542499, at *4 (S.D.N.Y. Dec. 21, 2017) (dismissing
certain claims for failure to prosecute when the plaintiff
did not comply with a court order); Mena v. City of New
York, No. 15-CV-3707, 2017 WL 6398728, at *2 (S.D.N.Y.
Dec. 14, 2017) (dismissing case and noting that "a pro
se plaintiff is not exempt from complying with court orders
and must diligently prosecute his case") (italics
omitted); Brown v. N.Y.Univ., No. 12-CV-1639, 2013
WL 433539, at *1 (S.D.N.Y. Feb. 1, 2013) (holding that Rule
41(b) "authorizes a district court to dismiss an action
for failure to prosecute" where the plaintiff does not
serve the defendant, file proof of service, or demonstrate
good cause for failure to serve); Smith v. N. Y.C. Police
Dep't, No. 06-CV-15436, 2008 WL 4449333, at *2
(S.D.N.Y. Oct. 2, 2008) (dismissing action for failure to
prosecute when the plaintiff "neither effected service
of the summons and amended complaint on [the] defendants ...
within the period for effecting service provided by Rule
4(m), nor within the additional period provided by [a court]
Clerk of Court is directed to mail a copy of this Order to
Plaintiff, and close this case.