United States District Court, D. Connecticut
JOYCE C. SULESKI, Plaintiff,
USI CONSULTING GROUP, INC. and USI, INC Defendants.
RULING ON DEFENDANTS' MOTION TO DISMISS FOR
FAILURE TO PROSECUTE
BOND ARTERTON, U.S.D.J.
USI Consulting Group, Inc. and USI, Inc. move jointly to
dismiss this case for failure to prosecute because Plaintiff
"has failed to respond to Defendants' discovery
requests, despite the Court's order that she respond by
November 16 or subject her Complaint to dismissal."
(Mot. to Dismiss [Doc. # 43] at 1.)
Complaint was filed on September 7, 2017, ([Doc. # 1], ) and
her First Amended Complaint was filed on January 22, 2018,
([Doc. #22]). On August 2, 2018, Plaintiff moved for an
extension of time to complete Defendants' discovery
requests, which Plaintiff had received on June 28, 2018.
(Mot. for Extension of Time [Doc. # 30].) On consent of
Defendants, the Court granted Plaintiffs motion, allowing her
until August 28, 2018 to comply with Defendants'
discovery requests. ([Doc. #31].)
September 17, 2018, Defendants moved to compel Plaintiff to
comply with their discovery requests. (Mot. to Compel [Doc. #
32].) Defendants indicated that "Plaintiff ha[d] not
responded to Defendants' discovery requests, or even
indicated a date by which she expects to respond. With
discovery set to close on October 2, 2018, Plaintiffs failure
to comply with her discovery obligations prejudices
Defendants and impedes their ability to take Plaintiffs
deposition." (Defs.' Mem. Supp. Mot. to Compel [Doc.
# 34] at 1.) Defendants also detailed their efforts to
contact Plaintiff and her counsel, including Plaintiffs
counsel's indications that he had been unable to reach
his client. (Id. at 2-3.) The Court granted
Defendants' motion and ordered Plaintiff "to provide
full and complete responses (not objections) to
Defendants' [discovery requests] no later than November
16, 2018." (Endorsement Order [Doc. # 40].) The Court
warned plaintiff "that her failure to comply with this
order may result in dismissal of her complaint."
(Id.) The deadline for the close of discovery was
extended to December 3, 2018. (Order Granting Joint Mot. for
Extension [Doc. # 37].)
October 18, 2018, Plaintiffs counsel, Attorney Robert Singer,
moved to withdraw his appearance in this case because
"there has been a communication breakdown" between
Attorney Singer and Ms. Suleski, leading Attorney Singer to
conclude that he "can no longer adequately represent Ms.
Suleski." (Mot. to Withdraw [Doc. # 38] at 1.) In that
motion, Attorney Singer noted that Plaintiff had "failed
to complete [Defendants'] discovery requests, or
cooperate with counsel in completion." (Id.)
Attorney Singer attached to his motion copies of his attempts
to communicate with Ms. Suleski during September and October
2018. The last communication from Ms. Suleski to Attorney
Singer included in those attachments came on September 6,
2018, at which time Ms. Suleski expressed (via e-mail) her
intention to call Attorney Singer later that day. The Court
denied Attorney Singer's motion to withdraw, citing the
relatively recent communication from Ms. Suleski and
"[g]iven the nature of the disability alleged" by
Ms. Suleski in this case. (Endorsement Order [Doc. #41] at
November 30, 2018, Defendants filed their Motion to Dismiss
for Failure to Prosecute based on Plaintiffs failure to
provide any responses to Defendants' discovery requests
by November 16, 2018 as the Court had ordered. (Defs.'
Mem. Supp. Mot. to Dismiss [Doc. # 43-1] at 1.) Defendants
then filed a Supplemental Motion to Dismiss for Failure to
Prosecute, explaining that Plaintiff "failed to appear
on December 3, 2018 for her properly noticed
deposition," which Defendants had scheduled following
the November 19, 2018 status conference with the Court.
(Defs.' Supplemental Mot. to Dismiss [Doc. # 45] at 1.)
Defendants also noted that Attorney Singer represented on
November 29, 2018 that he had "tried to reach Ms.
Suleski on numerous occasions without success" and on
December 3, 2018 that he had "had no further contact
from" Ms. Suleski. (Id.; Exhibits B and C
(Emails from Attorney Singer) to Defs.' Supplemental Mem.
[Doc. # 45].)
counsel responded that he had "made numerous attempts to
contact the Plaintiff, without success, including by e-mail,
regular mail, and phone." (PL's Resp. to Defs.'
Mot. [Doc. # 46] at 1.) Attorney Singer attached to that
response his attempts to contact Ms. Suleski by e-mail on
November 14, November 23, November 28, November 29 (twice),
and November 30 (attaching Defendants' Motion to
Dismiss). Handwritten notes on those emails also indicate
that on November 30, 2018, Attorney Singer sent a copy of
Defendants' Motion to Dismiss to Ms. Suleski by mail at 1
MacDonald Drive, Westbrook, CT 06498.
Civ. P. 41(b) permits dismissal where "the plaintiff
fails to prosecute or to comply with [the Federal Rules] or a
court order." District Courts "ha[ve] the power
under Fed.R.Civ.P. 41(b) to dismiss a complaint for failure
to comply with a court order, treating the noncompliance as a
failure to prosecute." Simmons v. Abruzzo, 49
F.3d 83, 87 (2d Cir. 1995). In considering a motion to
dismiss for failure to prosecute, courts consider several
(1) [the] duration of plaintiff s failure, (2) whether
plaintiff received notice that delays would result in
dismissal, (3) whether defendant is likely to be prejudiced
by further delay, (4) the balance between alleviating court
calendar congestion and protecting a party['s] right to
due process and a fair chance to be heard, and (5) the
efficacy of lesser sanctions.
Cayo v. Stop *& Shop Supermarket Co. LLC, 2013
WL 1501689 (D. Conn. April 10, 2013); see U.S. ex rel
Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.
2004). Defendants argue that all five factors "weigh in
favor of dismissal." (Defs.' Mem. at 5.)
Defendants argue that the "duration of Plaintiffs
failure" weighs heavily in favor of dismissal. Nearly
nine months have passed since Defendants served their
discovery requests on June 28, 2018. Four months have passed
since the Court granted Defendants' Motion to Compel on
November 9, 2018, ordering Plaintiff to comply with
Defendants' discovery requests and warning her that
failure to do so could result in dismissal of her case. The
Court is aware of no communications from or efforts by
Plaintiff to comply with her obligations during that time.
This factor weighs in favor of dismissal. See Lyell
Theatre Corp. v. Loews Corp., 682 F.2d 37, 42-43 (2d
Cir. 1982) ("an action lying dormant with no significant
activity . . . may warrant dismissal after merely a matter of
Defendants argue that Plaintiff received notice that failure
to provide full and complete responses to Defendants'
discovery requests could result in dismissal of her case,
citing the Court's November 9 order which granted the
Defendants' Motion to Compel and warned: "Plaintiff
is advised that her failure to comply with this order may
result in dismissal of her complaint." (Endorsement
Order.) Because the Court gave Plaintiff "express notice
that further delays would ...