Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hutcheon v. Farnum

United States District Court, N.D. New York

January 8, 2020

SCOTT M. HUTCHEON, Plaintiff,
v.
E. FARNUM, Defendant.

          SCOTT M. HUTCHEON Plaintiff pro se.

          OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL Attorneys for Defendant.

          MATTHEW P. REED, ESQ.

          DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge.

         On February 2, 2018, Plaintiff commenced this action pro se pursuant to 42 U.S.C. § 1983 against Defendant E. Farnum. See Dkt. No. 1-1. Plaintiff asserts that Defendant Farnum, who was employed at Marcy Correctional Facility, violated his constitutional rights under the Eighth Amendment. See Id. at 1-2.

         On August 20, 2018, Magistrate Judge Christian F. Hummel issued the Mandatory Pretrial Discovery and Scheduling Order, setting a discovery deadline for February 20, 2019, a copy of which was served via regular mail to Plaintiffs provided address. See Dkt. No. 20; Text Entry dated Aug. 20, 2018. On January 28, 2019, Plaintiff failed to appear for his deposition, after having been served with a notice of same by Defendant on January 2, 2019. See Dkt. No. 26-2 at ¶¶ 8, 10, 11; Dkt. No. 26-2, Ex. C. Plaintiff did not contact Defendant's counsel or communicate that he was unable to attend, nor was the Notice of Deposition returned to Defendant as undeliverable. See Dkt. No. 26-2 at ¶¶ 9, 10. On February 4, 2019, Magistrate Judge Hummel set a telephone status conference for February 15, 2019, and advised Plaintiff that "fail[ure] to participate in court conferences or abide by Court Orders may result in the dismissal of [the] action." Dkt. No. 23. Notice was sent to Plaintiffs provided address, see id, after which Plaintiff failed to appear and did not contact the Court. See Text Min. Entry dated Feb. 15, 2019.

         On April 2, 2019, Defendant moved to dismiss the current matter for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and failure to obey a discovery order pursuant to Federal Rule of Civil Procedure 37(d). See Dkt. No. 26-1. Plaintiff was afforded until April 26, 2019, to file a response. See Dkt. No. 25. To date, Plaintiff has not responded to Defendant's Motion to Dismiss, filed objections to Magistrate Judge Hummel's Report-Recommendation and Order, or engaged in any activity or communication with the Court since February 2018. See Dkt. Nos. 26, 27.

         In a Report-Recommendation and Order dated November 4, 2019, Magistrate Judge Hummel recommended that Plaintiffs complaint be dismissed for failure to prosecute, and in the alternative, failure to obey a discovery order. See Dkt. No. 27 at 10-11. Magistrate Judge Hummel considered the five factors the court is required to consider in determining whether dismissal for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is appropriate. See Id. at 4. Specifically, Magistrate Judge Hummel found that "[e]ven considering plaintiffs pro se status, it is recommended that the dismissal of the action be with prejudice due to plaintiffs apparent abandonment of this case as evidenced by his lack of communication and participation over the last twenty months, including his failure to appear for his deposition, telephone status conference, or respond to defendant's motion to dismiss." Id. at 7. Having considered the relevant factors, Magistrate Judge Hummel recommended that the Court find that they "weigh decidedly in favor of dismissal." Id.

         When a party files specific objections to a magistrate judge's report-recommendation and order, the district court "make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(c). However, when a party files "[g]eneral or conclusory objections, or objections which merely recite the same arguments [that he] presented to the magistrate judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, "the 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).

         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 plaintiffs 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) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.