Wade v. Nassau County

SUMMARY ORDER Appellant Raymond Wade, proceeding pro se, appeals from the district court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to prosecute. Wade was represented by counsel during the district court proceedings. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal “[i]f the plaintiff fails to prosecute or to comply with the[ ] rules or a court order.... ” Fed. R. Civ. P. 41(b). We consider five factors when reviewing a Rule 41(b) dismissal, whether: (1) the plaintiffs failure to prosecute caused a delay of significant duration; (2) plaintiff was given notice that further delay would result in dismissal; (3) defendant was likely to be prejudiced by further delay, (4) the need to alleviate court calendar congestion was carefully balanced against plaintiffs right to an opportunity for a day in court; and (5) the trial court adequately assessed the efficacy of lesser sanctions. Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009). No single factor is dispositive. See United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). We review a district court’s dismissal for failure to prosecute for abuse of discretion. Lewis, 564 F.3d at 575. While our review is deferential, we' are mindful that a Rule 41(b) dismissal is a “harsh remedy that should be utilized only in extreme situations.” Id. at 576 (internal quotation marks and citations omitted). When counseled, a plaintiff is ordinarily bound to the acts of his lawyer, including those that justify dismissal for failure to prosecute. Dodson v. Runyon, 86 F.3d 37, 40 (2d Cir. 1996). The more a delay is the result of the plaintiffs personal obstruction or is designed to benefit his strategic interests, the more appropriate is the remedy of dismissal. Id. But when the delay is the result of counsel’s disregard for his obligations to his client, lesser sanctions imposed directly on the lawyer may be more suitable. Id. Nevertheless, the other factors may still override the hardship to the plaintiff and warrant dismissal. Id. at 41. Upon review, we conclude that the district court did not abuse its discretion by dismissing Wade’s complaint for failure to prosecute pursuant to Rule 41(b). The district court carefully considered the five required factors. As to the first two factors, Wade’s delay of nearly two years was unreasonable, and the court had warned him that further delays would result in dismissal. The third factor weighed in favor of dismissal because the defendants, who had actively defended this case, would *98 be prejudiced by further delay. The fourth factor militated toward dismissal because Wade’s interest in having his case heard was diminished in light of his delay and thus was outweighed by the court’s interest in managing its docket. The fifth factor is more troubling because Wade’s counsel, and not Wade himself, was responsible for the delays. However, the court properly explored lesser sanctions to be imposed directly on Wade’s attorney, threatening to refer him to the grievance committee and to hold him in contempt. Cf id. at 42 (remanding because district court failed to consider the possibility of alternative penalties before dismissing). The court also dismissed the complaint without prejudice, recognizing that Wade was not completely at fault for the delays. Given these circumstances, the court did not abuse its discretion by dismissing Wade’s complaint. See Mitchell v. Lyons Prof'l Servs., Inc., 708 F.3d 463, 469 (2d Cir. 2013) (holding that district court is not required to exhaust alternative sanctions but must consider them); see also Nolan v. Primagency, Inc., 344 Fed.Appx. 693, 694-95 (2d Cir. 2009) (unpublished summary order) (holding that, although there was no evidence suggesting the plaintiff contributed to the delays, because plaintiff had ample opportunity to remove his attorney and obtain a different counsel—but did not—dismissal was appropriate). We have considered all of Wade’s arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.