WILLIAM M. SKRETNY, District Judge.
In this action, pro se Plaintiff Gwendolyn Cole-Hoover, as administratrix of her brother's estate, asserts medical-malpractice claims against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2679(a). Plaintiff alleges that the Veterans Administration Hospital in Manhattan, N.Y., was negligent in the care and treatment of her brother, David Cole, and that such treatment resulted in his death.
Presently before this Court is Defendant's Motion to Dismiss under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute, and under Rule 37(b) for failure to comply with court orders. For the reasons stated below, Defendant's motion is granted on both grounds.
Plaintiff filed this action on June 4, 2014. (Docket No. 1.) At that time, she was represented by counsel. Defendant filed its answer to the complaint on August 8, 2014. (Docket No. 5.) Counsel litigated the case until December 3, 2015, when Plaintiff's counsel moved to withdraw on the basis of difficulty communicating with and gaining the cooperation of Plaintiff. (Docket No. 27.) On January 14, 2016, the Honorable Leslie G. Foschio, United States Magistrate Judge, granted Plaintiff's counsel's motion to withdraw and determined that Plaintiff would proceed pro se. (Docket No. 32.)
Plaintiff is an experienced pro se litigator, having pursued at least seven actions in this district as well as actions in other federal and state courts. (
On January 15, 2016, Judge Foschio directed Plaintiff to file a response by February 12, 2016, to a Motion to Compel filed by Defendant. (
In his February 23, 2016 decision, Judge Foschio ordered Plaintiff to respond to certain interrogatories and deposition questions. (
Due to Plaintiff's intransigence, Defendant filed a Second Motion to Compel on April 1, 2016, again seeking to gain Plaintiff's compliance with its discovery demands. (
On June 21, 2016, Judge Foschio granted Defendant's Second Motion to Compel and directed Plaintiff to comply with the discovery demands at issue no later than June 30, 2016. (Docket No. 52.) Judge Foschio also specifically warned Plaintiff, in capital letters, that "failure to comply with this decision and order may subject Plaintiff to sanctions pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 37(d)(1)(A), including dismissal of this action." (
Following Judge Foschio's June 21, 2016 Order, Defendant scheduled Plaintiff's deposition and sent her notice of the same. (Roach Decl., ¶ 30.) Plaintiff did not advise Defendant that the scheduled deposition posed a conflict for her or otherwise communicate difficulty with the date. (
On July 5, 2016, Defendant filed yet a Third Motion to Compel, this one seeking an Order requiring Plaintiff to make her expert disclosures, which were due May 2, 2016. (Docket No. 54; Roach Decl., ¶ 38.) Defendant also filed a Motion for Sanctions. (Docket No. 56.) Judge Foschio directed Plaintiff to respond to both motions by August 4, 2016, and again warned her that "failure to respond to this order may result in sanctions including dismissal of this action." (Docket No. 59.) Plaintiff failed to respond as directed and failed to appear at oral argument. (Docket No. 61.)
On October 17, 2016, Judge Foschio granted Defendant's Third Motion to Compel and directed that Plaintiff pay the costs of the court reporter retained by Defendant for Plaintiff's deposition. (Docket Nos. 70, 71.) In his decision, Judge Foschio noted Plaintiff's repeated failures to comply with court orders and again warned her that "failure to comply with the court's Order may result in . . . this action be[ing] dismissed with prejudice." (Docket Nos. 70, 71.) Plaintiff thereafter failed to provide the discovery ordered by Judge Foschio and failed to pay the costs of the court reporter as directed. (Roach Decl., ¶¶ 52-57, 62.) Plaintiff also failed to appear for her rescheduled deposition, causing Defendant to again incur court-reporter expenses. (
On October 20, 2016, Defendant filed a Motion for Modification of the Fifth Amended Scheduling Order. (Docket No. 72.) Judge Foschio directed Plaintiff to respond to Defendant's motion by November 4, 2016. (Docket No. 73.) Plaintiff failed to respond as directed.
On December 6, 2016, Defendant filed the instant Motion to Dismiss Plaintiff's complaint due to her failure to prosecute and comply with discovery demands and court orders. (Docket No. 76.) This Court thereafter set three separate deadlines for Plaintiff's response. (Docket Nos. 80, 82, 86.) The final two orders specifically warned Plaintiff "that her failure to file and serve a response to Defendant's motion as directed may result in this Court granting Defendant's motion as uncontested pursuant to Local Rule 7(a)(2)(A) or dismissing Plaintiff's case for failure to prosecute." (Docket Nos. 82, 86.) Despite this warning, and the many before, Plaintiff failed to file her response as directed.
Dismissal of this case is warranted pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides that:
FED. R. CIV. P. 41 (b).
Rule 41 (b) does not define failure to prosecute. But the Second Circuit has stated that failure to prosecute "can evidence itself either in an action lying dormant with no significant activity to move it or in a pattern of dilatory tactics."
The following factors, none of which are dispositive, must be considered in determining whether dismissal for failure to prosecute is warranted: (1) the duration of the plaintiff's 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) whether lesser sanctions would be appropriate.
The relevant inquiry on this factor is twofold: (1) whether the plaintiff is at fault for failing to prosecute, and (2) whether the plaintiff's failures were of significant duration.
Here, Plaintiff is solely at fault for failing to prosecute: she has been uncommunicative; has failed to comply with court orders; has failed to appear as directed; has failed to pay a court-ordered sanction; and has failed to conduct discovery.
With respect to duration, Plaintiff's inaction has caused unnecessary delay of more than 16 months, since Defendant's first motion to compel. (Docket No. 29.) This is a failure of significant duration.
Thus, this Court finds that this factor weighs in favor of dismissal—all delay is attributable to Plaintiff and is of significant duration.
The Second Circuit requires that a plaintiff receive adequate notice that her case could be dismissed due to inaction.
The third factor requires an inquiry into whether the defendant has been prejudiced by the plaintiff's inaction. "Prejudice to defendants resulting from unreasonable delay may be presumed, but in cases where delay is more moderate or excusable, the need to show actual prejudice is proportionately greater."
The fourth factor requires the court to consider the balance between calendar congestion and the plaintiff's right to present his or her case.
As for Due Process, this Court notes that Plaintiff has been afforded her due process rights in that she has been provided numerous opportunities to comply with the orders of this court. Thus, Plaintiff's own failure to litigate this matter is not a denial of due process.
Finally, the Second Circuit requires district courts to consider whether lesser sanctions would sufficiently remedy any prejudice resulting from the plaintiff's inaction.
Accordingly, this Court finds that dismissal of this case is warranted under Rule 41(b) for Plaintiff's failure to prosecute.
"A district court may impose sanctions when `a party . . . fails to obey an order to provide or permit discovery.'"
Although Rule 37 dismissal is a drastic remedy reserved for only extreme circumstances, it "is warranted . . . where a party fails to comply with the court's discovery orders willfully, in bad faith, or through fault."
For all of the reasons discussed above, this Court finds that dismissal of this case is also proper under Rule 37(b) for Plaintiff's repeated failure to comply with Judge Foschio's discovery orders.
Plaintiff has failed to diligently prosecute this action and has failed to comply with orders of this Court. As such, because each of the factors relevant to the Rule 41(b) and Rule 37(b) analysis favor dismissal, this Court will dismiss this case.
IT HEREBY IS ORDERED, that Defendant's Motion to Dismiss (Docket No. 76) is GRANTED.
FURTHER, that this case is DISMISSED pursuant to Rules 41(b) and 37(b) of the Federal Rules of Civil Procedure.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.