Filed: Oct. 05, 2015
Latest Update: Oct. 05, 2015
Summary: REPORT AND RECOMMENDATION HENRY PITMAN , Magistrate Judge . TO THE HONORABLE J. PAUL OETKEN, United States District Judge, This action is brought under the Federal Tort Claims Act and arises out of an alleged automobile accident. The action was commenced on May 20, 2014. Approximately six months after the action was commenced, plaintiff's counsel sought to withdraw, primarily on the ground that she had been unable to communicate with plaintiff. Counsel's application to withdraw was granted
Summary: REPORT AND RECOMMENDATION HENRY PITMAN , Magistrate Judge . TO THE HONORABLE J. PAUL OETKEN, United States District Judge, This action is brought under the Federal Tort Claims Act and arises out of an alleged automobile accident. The action was commenced on May 20, 2014. Approximately six months after the action was commenced, plaintiff's counsel sought to withdraw, primarily on the ground that she had been unable to communicate with plaintiff. Counsel's application to withdraw was granted ..
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REPORT AND RECOMMENDATION
HENRY PITMAN, Magistrate Judge.
TO THE HONORABLE J. PAUL OETKEN, United States District Judge,
This action is brought under the Federal Tort Claims Act and arises out of an alleged automobile accident. The action was commenced on May 20, 2014. Approximately six months after the action was commenced, plaintiff's counsel sought to withdraw, primarily on the ground that she had been unable to communicate with plaintiff. Counsel's application to withdraw was granted on December 4, 2014. Since that time, plaintiff has done nothing to prosecute the case, and the action appears to be abandoned.
On July 17, 2015, I issued an Order to plaintiff that provided, in pertinent part:
IF PLAINTIFF WISHES TO PURSUE THIS CASE, HE MUST CONTACT THE UNDERSIGNED WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER, CONFIRM THAT HE WISHES TO PURSUE THE CASE AND PROVIDE ACCURATE CONTACT INFORMATION. IF I DO NOT HEAR FROM PLAINTIFF WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER IT IS MY INTENTION TO ISSUE A REPORT AND RECOMMENDATION RECOMMENDING THAT THE ACTION BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE.
(Order dated July 17, 2015 (Docket Item 18) (capitalization and boldface type in original)). Copies of the foregoing Order were sent to four different addresses believed to be associated with plaintiff; only one copy has been returned as undeliverable.1
Plaintiff has not responded to My July 17, 2015 Order, nor has he contacted my chambers in any way. In light of the foregoing, I respectfully recommend that the action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b). See Brow v. City of New York, 391 F. App'x 935, 936-37 (2d Cir. 2010) (upholding dismissal for failure to prosecute after a "delay of nearly six months"). There has been no activity by plaintiff to prosecute the matter since its commencement, and plaintiff has not responded to my order seeking confirmation that he remains interested in prosecuting this matter. If this inaction is due to some circumstance that is truly beyond plaintiff's control, a dismissal without prejudice will permit plaintiff to re-file his action and assert his rights.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b) (1) (c) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable J. Paul Oetken, United States District Judge, 40 Foley Square, Room 2101, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Oetken. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-238 (2d Cir. 1983).
