United States District Court, D. Vermont
Robert Donald Marshall, Jr. and Angel Maria Marshall, Plaintiffs,
Brita Hanson, Michelle Kainen, Brenda Pellerine, Cindy Kurahara, Mariam Newman, Dr. William Halikias, Mary Ann Neill, Jeffrey Carlstrom, Jennifer Foster, Janet Melke, Carla Tucker, Ruth Clough, and Sue Lohutko, Defendants.
OPINION AND ORDER
WILLIAM K. SESSIONS III, District Judge.
Robert Donald Marshall, Jr. and Angel Maria Marshall,
proceeding pro se, bring this civil rights action
claiming a conspiracy to terminate their respective parental
rights. On March 25, 2016, the Court allowed Plaintiffs 30
days in which to file a Second Amended Complaint, and warned
that the "failure to do so will likely result in the
dismissal of all claims, and the dismissal of this case with
prejudice." ECF No. 94 at 4. Thirty days have since
passed, the Plaintiffs have not filed a Second Amended
Complaint, and motions to dismiss for failure to prosecute
are currently before the Court.
for failure to prosecute is governed by Federal Rule of Civil
Procedure 41(b), which provides
If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the
action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and
any dismissal not under this rule-except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19-operates as an adjudication upon the merits.
Civ. P. 41(b). The Second Circuit has stated that failure to
prosecute "can evidence itself either in an action lying
dormant with no significant activity to move it or in a
pattern of dilatory tactics." Lyell Theatre
Corp., 682 F.2d at 42. The Second Circuit has also
acknowledged that dismissal is "a harsh remedy to be
utilized only in extreme situations." Harding v.
Fed. Reserve Bank, 707 F.2d 46, 50 (2d Cir. 1983)
(quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d
853, 855 (2d Cir. 1972)); see also Chira v.
Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir.
1980) (discussing the sanction of dismissal for failure to
prosecute as "pungent, rarely used, and
conclusive"). This is particularly true in pro
se cases, where dismissal for failure to prosecute
should be granted only "when the circumstances are
sufficiently extreme." Lucas v. Miles, 84 F.3d
532, 535 (2d Cir. 1996) (citing Nita v. Connecticut
Dep't of Envtl. Prot., 16 F.3d 482, 487 (2d Cir.
following factors, none of which is dispositive, must be
considered when determining whether dismissal for failure to
prosecute is warranted (1) the duration of the
plaintiff's failures, (2) whether the plaintiff received
notice that further delays would result in dismissal, (3)
whether the defendant is likely to be prejudiced by further
delay, (4) whether an appropriate balance has been struck
between alleviating the court's calendar congestion and
protecting the litigants' due process rights, and (5)
whether lesser sanctions would be appropriate. See
United States ex rel. Drake v. Norden Sys., Inc.,
375 F.3d 248, 255 (2d Cir. 2004); Nita, 16 F.3d at
485; Feurtado v. City of New York, 225 F.R.D. 474,
477 (S.D.N.Y. 2004).
instant case has been pending since 2013. In an Opinion and
Order dated March 27, 2015, the Court dismissed the
Plaintiffs' claims and granted leave to file a Second
Amended Complaint. The Court warned that "[f]ailure to
file a Second Amended Complaint within thirty (30) days may
result in final dismissal with prejudice of the claims
dismissed herein." ECF No. 78 at 35. After the Court
granted a subsequent motion for extension of time, the
Plaintiffs' filing was due on June 1, 2015.
attempted to file a Second Amended Complaint electronically
on the due date. The Clerk's Office rejected the filing
on the basis of this Court's rule barring the electronic
filings of complaints. See Administrative Procedure
for Electronic Case Files Rule I(1)(b). The Clerk's
Office then alerted Plaintiffs via email, first on June 2,
2015 and again on June 16, 2015, of the need to file a paper
copy of the Complaint. When Plaintiffs responded that they
had not retained a paper copy, the Clerk's Office
suggested obtaining a copy from one of the opposing
attorneys. To date, Plaintiffs have not properly filed a
Second Amended Complaint.
now been nearly a year since either Plaintiff filed anything
with the Court. As noted above, on March 25, 2016 the Court
allowed Plaintiffs an additional 30 days in which to file a
Second Amended Complaint. That deadline has now passed, and
Plaintiffs have filed nothing.
the factors for dismissal under Rule 41(b), the Plaintiffs
have been aware of the need to file a Second Amended
Complaint since March 2015 - over one year ago. The Court has
allowed them multiple opportunities to properly docket an
amended pleading, and has clearly warned that the failure to
do so would likely result in the dismissal of their claims
with prejudice. Plaintiffs have nonetheless failed to take
action to preserve their claims.
Amended Complaint naming the individual Defendants has been
pending since March 2014. In light of the Plaintiffs'
inaction, those Defendants now have a right to dismissal of
the claims against them. The Court has considered
Plaintiffs' due process rights, as well as a lesser
sanction, and finds that the repeated failure to properly
file a Second Amended Complaint warrants dismissal. ...