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Long v. Parry

United States District Court, D. Vermont

January 28, 2015

RAYMOND A. LONG, M.D. Plaintiff,



Defendants move to dismiss this case with prejudice pursuant to Federal Rule of Civil Procedure 41(b) due to the Plaintiff's failure to prosecute. ECF No. 41. For the reasons explained below, Defendants' motion is denied.

I. Relevant Background

Plaintiff Raymond A. Long, M.D. filed the present suit against an attorney and law firm that represented him in a prior lawsuit arising out of Dr. Long's resignation from the medical staff at Northwestern Medical Center in St. Albans, Vermont. Dr. Long resigned in 2004, filed suit in 2005, and litigated his claims for nearly three years. The parties to the first suit settled with the assistance of a mediator. Dr. Long's Complaint in this case, filed on April 24, 2012, alleges misconduct in connection with events related to his 2005 suit, the related mediation, and more recent efforts to resolve a fee dispute between Dr. Long and the Defendants. ECF No. 1.

The parties to this suit began discussing Plaintiff's underlying claims and exchanging documents as early as April 2011. ECF Nos. 48-2, 48-3. On February 7, 2012, the parties signed a tolling agreement in order to engage in settlement discussions. ECF No. 48-4. In April of 2012, counsel for Defendants inspected the Plaintiff's records. ECF No. 48-5. Mediation was scheduled for April 17, 2012 but was cancelled because, according to the Plaintiff, the Defendants did not produce certain documents. ECF No. 48-6. Shortly thereafter Dr. Long filed his Complaint.

The Defendants moved to dismiss this case on June 25, 2012, ECF No. 6, and then filed a second motion to dismiss on August 24, 2012, ECF No. 11. The Plaintiff opposed both motions and separately moved to amend his complaint twice, first on October 30, 2012, ECF No. 18, and again on November 30, 2012, ECF No. 21. On February 1, 2013 the Court denied Defendants' motions to dismiss, granted Plaintiff's motion to amend, and noted that venue in this action may be appropriate in the Eastern District of Pennsylvania. ECF No. 26. The Court stated that if no objections to a convenience transfer pursuant to 28 U.S.C. ยง 1404(a) were filed within thirty days, the Court on its own motion would transfer this action to the Eastern District of Pennsylvania.

Within thirty days of the Court's ruling Plaintiff filed an objection to the transfer on February 20, 2013. ECF No. 27. On April 21, 2014 counsel for the Plaintiff sent a letter to the Clerk of the District of Vermont, with a copy to counsel for the Defendants, noting that the Court's "sua sponte motion for transfer" had been ripe for decision since February 2013 and requested the Clerk "see why no decision has issued[.]" ECF No. 48-7. The Court ordered the Defendants to respond to the Plaintiff's objection within fifteen days of April 30, 2014. ECF No. 30. On May 5, 2014, the Defendants filed their response, in which they advised the Court that they did not oppose the Plaintiff's objection to transfer.

Apart from motions for appearance pro hac vice and a motion to substitute attorneys, there were no other documents filed on the docket until the Court noticed a pretrial conference on November 11, 2014. The Plaintiff then filed his Amended Complaint on November 20, 2014, ECF No. 39, and moved to cancel the pretrial conference on November 25, 2014, ECF No. 40. The Defendants filed the motion to dismiss now before the Court on November 26, 2014. The Court held a pretrial conference on December 4, 2014 and noted it would issue an opinion addressing Defendants' motion after Plaintiff had an opportunity to respond.

II. Legal Standard

In addition to the powers codified in the Federal Rules of Civil Procedure and elsewhere, every district court has the "inherent power" to supervise and control its own proceedings, including dismissing an action for failure to prosecute. Mitchell v. Lyons Prof'l Services, Inc., 708 F.3d 463, 467 (2d Cir. 2013) (internal quotation and citation omitted). Dismissing a case for failure to prosecute, however, is a "harsh remedy" that should "be utilized only in extreme situations." Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (internal quotation and citation omitted).

In recognition of the harsh nature of dismissal, the Second Circuit has fashioned guiding rules that limit a trial court's discretion when determining whether dismissal for failure to prosecute is appropriate. Id. District courts considering dismissal under Federal Rule of Civil Procedure 41(b) must weigh five factors prescribed by Second Circuit case law:

(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.

Baptiste v. Sommers, 768 F.3d 212, 214, 216 (2d Cir. 2014) (internal quotation and citation omitted). No one factor is ...

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