Zuzick v. Commissioner of Social Security

          ORDER OF DISMISSAL

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE

         On April 11, 2019, the self-represented plaintiff Robyn Ellen Zuzick (“plaintiff”) filed a Complaint for Review of Social Security Administration Decision. [Doc. #1]. For the reasons that follow, the Court DISMISSES, without prejudice, plaintiff's Complaint [Doc. #1] for failure to prosecute and failure to comply with the Court's orders.

         BACKGROUND

         Plaintiff filed the Complaint in this matter on April 11, 2019, using a form Social Security Complaint. See Doc. #1, Complaint. Simultaneously therewith, plaintiff also filed a motion seeking leave to proceed in forma pauperis [Doc. #2], which the Court granted on April 11, 2019 [Doc. #7].

         In May 2019, the parties consented to the jurisdiction of a United States Magistrate Judge. See Docs. #11, #13, #14. On May 23, 2019, this case was transferred to the undersigned. [Doc. #14]. On June 10, 2019, defendant Commissioner of Social Security (“defendant”) filed the Social Security Transcripts. [Doc. #16]. On that same date, the Court entered its Supplemental Scheduling Order, requiring plaintiff to file her motion to reverse and/or remand by August 9, 2019. See Doc. #17 at 1. A copy of the Court's Supplemental Scheduling Order was sent to plaintiff by United States Mail on June 11, 2019.

         Plaintiff failed to file her motion to reverse and/or remand by August 9, 2019. As a result, on August 14, 2019, the Court issued an Order to Show Cause why this matter should not be dismissed for plaintiff's failure to prosecute. [Doc. #18]. The Court ordered that plaintiff file a response to the Court's Order to Show Cause on or before August 30, 2019. See Id. A copy of the Court's Order to Show Cause was sent to plaintiff by United States Mail on August 14, 2019.

         On September 3, 2019, presumably in response to the Court's Order to Show Cause, plaintiff filed a motion seeking an extension until October 29, 2019, to file her motion to reverse and/or remand. See Doc. #19. On September 4, 2019, the Court granted plaintiff's motion, in part, and ordered that plaintiff file her motion on or before September 30, 2019. See Doc. #20. Because plaintiff represented that she was trying to secure counsel, see Doc. #19 at 1, the Court noted: “In the event that plaintiff is unable to secure counsel, then plaintiff will be responsible for preparing and submitting her motion to reverse and/or remand by September 30, 2019. Should plaintiff fail to file her motion to reverse and/or remand by September 30, 2019, this case may be dismissed.” Doc. #20. A copy of the Court's September 4, 2019, Order was sent to plaintiff by United States Mail on September 6, 2019.

         To date, plaintiff has failed to file any motion to reverse and/or remand.

         DISCUSSION

         “A district court has the inherent power to dismiss a case ... for lack of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Supreme Court explained that such authority is governed by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Reynel v. Barnhart, No. 01CV6482(RLE), 2002 WL 2022429, at *1 (S.D.N.Y. Sept. 3, 2002) (citation and quotation marks omitted). “Although not explicitly authorized by Rule 41(b), a court may dismiss a complaint for failure to prosecute sua sponte.” Zappin v. Doyle, 756 Fed.Appx. 110, 111-12 (2d Cir. 2019).

         “Rule 41(b) recognizes the district courts' power to dismiss a complaint for failure of the plaintiff to comply with a court order, treating noncompliance as a failure to prosecute. Courts have repeatedly found that dismissal of an action is warranted when a litigant, whether represented or instead proceeding pro se, fails to comply with legitimate court directives.” Bonnette v. Comm'r of Soc. Sec., No. 16CV6398(ENV), 2018 WL 6173434, at *2 (E.D.N.Y. Nov. 26, 2018). When considering whether to dismiss an action for failure to prosecute, courts generally consider the following five factors:

“(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). No. single factor is generally dispositive. Nita v. Connecticut Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994).

Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014); accord Rozell v. Berryhill, No. 18CV969(AJN)(JLC), 2019 WL 1320514, at *1-2 (S.D.N.Y. Mar. 25, 2019).

         A consideration of the foregoing factors weighs in favor of dismissal. First, plaintiff's non-compliance with the Court's orders continues. Although the length of plaintiff's non-compliance is not the most egregious that this Court has encountered, it is nevertheless significant as it has entirely stalled this case from proceeding. Plaintiff's motion to reverse and/or remand was originally due two months ago on August 9, 2019. See Doc. #17 at 1. Although the Court ...