United States District Court, N.D. New York
L. SHARPE, UNITED STATES DISTRICT JUDGE.
pro se Ronald Gary commenced this action against
defendants United States of America and Sterling Medical
Associations, Inc., alleging claims of medical malpractice
and negligence. (See generally Am. Compl., Dkt. No.
17.) Pending are defendants' unopposed motions to dismiss
for failure to prosecute. (Dkt. Nos. 55, 56.) For the reasons
that follow, defendants' motions are granted.
October 3, 2018, Gary's then-counsel moved to withdraw.
(Dkt. No. 44.) Defendants did not oppose this motion. (Dkt.
Nos. 45, 46.) On October 16, 2018, the court granted the
motion, and provided Gary thirty days to obtain new counsel.
(Dkt. Nos. 47, 48.) After a telephone conference held on
December 10, 2018, the court extended Gary's time to
retain counsel, and ordered him to provide a status update as
to his progress if no attorney was retained or appeared by
January 14, 2019. (Dkt. No. 50.) No. attorney appeared, and
Gary did not provide a status update. The court subsequently
issued two warnings to Gary, while also affording Gary
additional time to attempt to retain an attorney. (Dkt. Nos.
51, 54.) After deadlines expired, with no update from Gary,
defendants filed their motions to dismiss. (Dkt. Nos. 55,
56.) Despite yet another extension, this time to respond to
the motions, Gary did not respond. (Dkt. No. 57.) On July 16,
2019, Gary was sent a pro se handbook and notice,
with instruction to read, sign, and return the notice for
filing. (Dkt. No. 59.) Gary failed to do so. In sum, nearly
nine months have passed since Gary was ordered, and has
failed, to obtain new counsel, albeit multiple extensions and
pertinent here, Fed.R.Civ.P. 41(b) permits dismissal of an
action upon the motion of a defendant “[i]f the
plaintiff fails to prosecute or to comply with . . . a court
order.” “[D]ismissal for failure to prosecute is
a ‘harsh remedy to be utilized only in extreme
situations.'” United States ex rel.
Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.
2004) (quoting Minnette v. Time Warner, 997 F.2d
1023, 1027 (2d Cir. 1993)). To determine whether dismissal
for failure to prosecute is appropriate, the court must
consider the five factors-none of which are
dispositive-articulated in Drake:
whether: (1) the plaintiff's failure to prosecute caused
a delay of significant duration; (2) plaintiff was given
notice that further delay would result in dismissal; (3)
defendant was likely to be prejudiced by further delay; (4)
the need to alleviate court calendar congestion was carefully
balanced against plaintiff's right to an opportunity for
a day in court; and (5) the trial court adequately assessed
the efficacy of lesser sanctions.
Id. at 254 (citations omitted).
court notes that Gary's failure to respond in opposition
to the pending motions to dismiss is not without
significance; under this court's Local Rules, a
party's failure to respond to a properly filed motion can
constitute consent to the granting of that motion, so long as
the court determines that the moving party has met its burden
demonstrating entitlement to the relief requested.
See N.D.N.Y. L.R. 7.1(b)(3); Herring v.
Tabor, No. 9:12-cv-1739, 2014 WL 2946545, at *5
(N.D.N.Y. June 30, 2014) (noting that where a defendant's
motion to dismiss is unopposed, the “burden of
persuasion is lightened such that, in order to succeed, the
motion need only be ‘facially meritorious.'”
(citation omitted)). Additionally, under the Local Rules,
“plaintiff's failure to take action for four (4)
months shall be presumptive evidence of lack of
prosecution.” N.D.N.Y. L.R. 41.2(a).
have accurately cited proper legal authority supporting the
ground upon which their motions are based, (Dkt. No. 55,
Attach. 6 at 2; Dkt. No. 56, Attach. 2 at 3-4), and have
sufficiently argued the relevant factors which favor
dismissal, (Dkt. No. 55, Attach. 6 at 2-3; Dkt. No. 56,
Attach. 2 at 4-6). For all of the reasons explained in
defendants' motion papers, which the court adopts,
dismissal is warranted. Accordingly, the motions are granted,
and Gary's action is dismissed for failure to prosecute.
it is hereby
that defendants' motions to dismiss (Dkt. Nos. 55, 56)
are GRANTED; and it is further
that Gary's amended complaint (Dkt. No. 17) is
DISMISSED; and it is further
that the Clerk provide a copy of this Memorandum-Decision and
Order to the parties.