In a decision dated November 28, 2012, United States District Judge Sandra L. Townes granted the motion of the City of New York, the New York City School Construction Authority (“SCA”), and other municipal defendants for an order dismissing the complaint for the plaintiff’s repeated failure to comply with court discovery orders. The pro se plaintiff, John DePietro, was seeking damages for the allegedly wrongful demolition of several structures on his property in December 2007. The plaintiff also claimed that the SCA’s installation of a drainage system in connection with the construction of a new public school across the street from his property in the late 1990s has caused, and continues to cause excessive water run-off from the school property onto his own property, resulting in continuing damage to his property. The defendants’ motion outlined the plaintiff’s pattern of failing to provide proper responses to discovery demands, and the plaintiff’s noncompliance with multiple orders of the Court directing the plaintiff to provide such responses. Additionally, although the plaintiff had previously been represented by counsel, on July 14, 2011 the plaintiff’s attorney had received leave to withdraw on the grounds of, inter alia, “lack of communication” and “breakdown in communications.” The Court directed the plaintiff to retain new counsel by September 14, 2011, but the plaintiff did not do so, electing to proceed pro se. In response to the defendants’ motion, the plaintiff admitted that it had been a mistake to proceed without an attorney, and requested additional time to retain new counsel. The Court noted that Federal Rule of Civil Procedure 41(b) authorizes the Court to dismiss a complaint “for failure of the plaintiff to prosecute or to comply with … any order of court,” and proceeded to consider the relevant factors for dismissal pursuant to that rule. The Court found that the plaintiff’s noncompliance with discovery obligations was of significant duration, and it noted that it had previously warned the plaintiff that his failure to comply with the Court’s orders raised the possibility of dismissal for failure to prosecute. The Court accepted the defendants’ argument that the plaintiff’s unreasonable delay had prejudiced the defense of the case, as it became increasingly difficult to locate necessary witnesses, and to locate and preserve relevant documents. The Court also noted that the defendants had incurred the costs of attending multiple court conferences in a case that had failed to progress in any meaningful way due to the plaintiff’s noncompliance with discovery orders. The Court rejected the plaintiff’s request for additional time to retain new counsel, noting that the plaintiff’s history of delays dated back to when the plaintiff was represented by counsel. Accordingly, the Court granted defendants’ motion, and dismissed the plaintiff’s complaint with prejudice.
DePietro v. The City of New York, Index No.: 09-cv-932 (E.D.N.Y. November 28, 2012)
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