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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`MARISOL CAMINERO,
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`Plaintiff,
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`-against-
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`METROPOLITAN TRANSPORTATION
`AUTHORITY,
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`Defendant.
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`GEORGE B. DANIELS, United States District Judge:
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`MEMORANDUM DECISION
`AND ORDER
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`03 Civ. 4187 (GBD) (DCF)
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`Plaintiff Marisol Caminero brings this action against her former employer, Defendant
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`Metropolitan Transportation Authority (the "MTA"), pursuant to the Federal Employers' Liability
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`Act (the "FELA"), 45 U.S.C. §§ 51-60, alleging that Defendant negligently maintained its
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`workplace and equipment, causing her physical injuries. (Compl., ECF No. 1.) Defendant moves
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`to dismiss Plaintiff's complaint for failure to prosecute pursuant to Federal Rule of Civil Procedure
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`4l(b). (Mot. to Dismiss, ECF No. 15.)
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`Before this Court is Magistrate Judge Debra C. Freeman's May 2, 2019 Report and
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`Recommendation (the "Report"), recommending that Defendant's motion be granted and that this
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`action be dismissed with prejudice. 1 (Report, ECF No. 29, at 1.) Magistrate Judge Freeman
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`advised the parties that failure to file timely objections to the Report would constitute a waiver of
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`those objections on appeal. (Id. at 11.) On May 15, 2019, Plaintiff requested an extension of time
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`to file objections, from May 16, 2019 to May 21, 2019. (Pl.'s Letter dated May 15, 2019, ECF
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`No. 30.) Plaintiff then filed objections on May 21, 2019.
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`(Pl.'s Objs. to Mag. J.'s R. & R.
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`1 The relevant factual and procedural background is set forth in greater detail in the Report and is
`incorporated by reference herein.
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 2 of 11
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`("Objs."), ECF No. 32-1.) Subsequently, on June 4, 2019, Defendant filed a response to Plaintiff's
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`objections. (Def.'s Resp. to Pl.'s Objs. to Mag. l's R. & R., ECF No. 34.)
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`Having reviewed Magistrate Judge Freeman's Report, and Plaintiffs objection and
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`Defendant's response, this Court ADOPTS the Report in full and overrules Plaintiff's objections.
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`Accordingly, Defendant's motion to dismiss is GRANTED.
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`I.
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`FACTUAL BACKGROUND
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`Plaintiff commenced this action in 2003, seeking damages under the FELA for injuries she
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`allegedly sustained on two separate occasions while employed by Defendant as an MT A Police
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`Officer. (See generally Compl.) Plaintiff alleges that she was first injured in September 2000,
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`when Defendant negligently placed on top of an employee locker a battery charger that fell and hit
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`her head. (Id. at 2.) Plaintiff claims that she was injured a second time in January 2002, when she
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`was patrolling Grand Central Station in a golf cart that jerked violently because it had been
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`negligently maintained by Defendant. (Id. at 3.)
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`The parties first appeared for a conference on September 3, 2003. (Minute Entry dated
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`Sept. 3, 2003.) At a second conference on December 10, 2003, Plaintiff's counsel informed this
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`Court that Plaintiff needed back surgery and suggested that this Court "put [ this case] on a
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`suspended calendar to be activated by [Plaintiff's counsel's] letter indicating that those issues have
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`been resolved, or ... to have a control date in maybe June." (Conference Tr. dated Dec. 10, 2003
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`at 2:25-3:3.) This Court indicated that it would take the case off the calendar and suspend the
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`scheduling order, and it instructed Plaintiff to provide an update by June 2004 as to the status of
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`Plaintiff's surgery. (Id. at 3:20--4:1.) By letter dated June 7, 2004, Plaintiff's counsel advised this
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`Court that Plaintiff was pregnant but had not yet given birth and that her back surgery would be
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`delayed. (Deel. of Helene R. Hechtkopfin Supp. ofDef.'s Mot. to Dismiss ("HechtkopfDecl."),
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`2
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 3 of 11
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`Ex. 3 (Pl.'s Letter dated June 7, 2004), ECF No. 16-3.) Plaintiffs counsel therefore "request[ed]
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`that the case continue on a suspense calendar to be activated by letter of counsel."
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`(Id.)
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`Accordingly, by an Order dated June 8, 2004, this Court formally placed the case on the suspense
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`docket and directed the parties to submit a status letter no later than December 1, 2004. (Order
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`dated June 8, 2004, ECF No. 8.)2
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`Twenty-one months later, on September 6, 2006, given that there had been "no action for
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`more than twelve months," Judge Kimba M. Wood, who was then the Chief Judge of this Court,
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`closed this case administratively. (Order dated Sept. 6, 2006, ECF No. 9.)3
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`Twelve years later, on September 19, 2018, Plaintiff filed a letter motion noting that
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`Plaintiff "ha[ d] completed her surgeries" and requesting "that the case be placed on the Court's
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`active calendar." (Pl's Letter dated Sept. 19, 2018, ECF No. 10.) On September 20, 2018, this
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`Court scheduled a status conference for January 17, 2019.
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`(Order dated Sept. 20, 2018.)4
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`Subsequently, on December 19, 2018, Defendant moved to dismiss for failure to prosecute. (Mot.
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`to Dismiss.)
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`2 On November 30, 2004, Plaintiffs counsel provided this Court with a letter update, which was not filed
`on the docket. (Hechtkopf Deel., Ex. 5 (Pl.'s Letter dated Nov. 30, 2004), ECF No. 16-5.) Plaintiffs
`counsel stated in the letter that Plaintiff gave birth on June 29, 2004 but that her back surgery was still
`delayed. (Id.) He noted that Plaintiff is "hopeful that her surgery can be scheduled for some time in
`January." (Id.) He also requested that Plaintiff be permitted to provide a further update in May 2005. (Id.)
`Plaintiff failed, however, to provide any such update to this Court. (Report at 3 .)
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`3 Plaintiffs next communication with this Court was on January 10, 2012, when Plaintiffs counsel notified
`this Court through an undocketed letter that the name of his law firm had changed. (Deel. of Marc Wietzke
`("Wietzke Deel."), Ex. C (Pl.'s Letter dated Jan. 10, 2012), ECF No. 23-3.)
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`4 This conference was adjourned several times-twice upon the parties' request and once, sua sponte, upon
`Plaintiffs request for an extension of time to file objections to the Report-and has never taken place.
`(Memo Endorsement dated Jan. 14, 2019, ECF No. 21; Memo Endorsement dated Mar. 12, 2019, ECF No.
`28; Order dated May 16, 2019.)
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`3
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 4 of 11
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`II.
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`LEGAL STANDARDS
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`A. Reports and Recommendations.
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`A court "may accept, reject, or modify, in whole or in part, the findings or
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`recommendations" set forth in a magistrate judge's report. 28 U.S.C. § 636(b)(l)(C). The court
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`must review de nova the portions of a magistrate judge's report to which a party properly objects.
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`Id. The court, however, need not conduct a de nova hearing on the matter. See United States v.
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`Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the court "arrive at its own,
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`independent conclusion" regarding those portions of the report to which objections are made.
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`Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (citation omitted).
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`Portions of a magistrate judge's report to which no or "merely perfunctory" objections are
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`made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y.
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`2006) (citations omitted). The clear error standard also applies if a party's "objections are
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`improper-because they are 'conclusory,' 'general,' or 'simply rehash or reiterate the original
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`briefs to the magistrate judge."' Stone v. Comm'r of Soc. Sec., No. 17 Civ. 569 (RJS), 2018 WL
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`1581993, at *3 (S.D.N.Y. Mar. 27, 2018) (citation omitted). Clear error is present when "upon
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`review of the entire record, [the court is] 'left with the definite and firm conviction that a mistake
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`has been committed."' United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation omitted).
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`B. Rule 4l(b) Failure to Prosecute.
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`Rule 41 (b) authorizes a district court to dismiss an action "[i]f the plaintiff fails to
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`prosecute or to comply with ... a court order." Fed. R. Civ. P. 41(b). "The primary rationale
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`underlying a dismissal under [Rule] 41(b) is the failure of [a] plaintiff in his duty to process his
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`case diligently." Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). Any
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`significant delay in prosecution, even a "delay of a 'matter of months,"' can prejudice the
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`4
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 5 of 11
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`defendant and can warrant dismissal. Atuegwu v. United States, No. 18 Civ. 1518 (PAE), 2019
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`WL 2023720, at *2 (S.D.N.Y. May 8, 2019) (quoting Yadav v. Brookhaven Nat'! Lab., 487 F.
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`App'x 671,673 (2d Cir. 2012)). District courts must weigh five factors when deciding whether to
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`dismiss an action under Rule 4l(b), namely, whether:
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`(1) the plaintiff's 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 plaintiff's right to an opportunity for a
`day in court; and (5) the trial court adequately assessed the efficacy of lesser
`sanctions.
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`Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (citations omitted). No single factor is
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`dispositive in this inquiry. Id. The court need not make "exhaustive factual findings," but should
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`support its decision with adequate reasoning. Baptiste v. Sommers, 768 F.3d 212, 217 (2d Cir.
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`2014) (per curiam).
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`III.
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`PLAINTIFF'S CLAIMS ARE DISMISSED FOR FAILURE TO PROSECUTE
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`Magistrate Judge Freeman appropriately found that dismissal of this action is warranted,
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`given Plaintiff's failure to prosecute her claims.
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`A. Plaintiff's Failure to Prosecute Caused a Prolonged Delay.
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`The first factor-the duration of delay caused by Plaintiff's failure to prosecute-strongly
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`favors dismissal. As noted above and in the Report, from the time that this case was placed on the
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`suspense docket in June 2004, to the time that Plaintiff requested it to be restored back to the active
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`calendar in September 2018, fourteen years had expired. Plaintiff made only two letter
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`communications with this Court over the span of fourteen years: (1) a November 30, 2004 letter
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`noting that her back surgery was delayed and (2) a January 10, 2012 letter informing that counsel's
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`law firm name had changed. (Report at 5-6; Hechtkopf Deel., Ex. 5 (Pl.'s Letter dated Nov. 30,
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`2004); Wietzke Deel., Ex. C (Pl.'s Letter dated Jan. 10, 2012.) Moreover, during that period, there
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`5
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 6 of 11
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`were only two conferences in this case, both of which were in 2003. (Minute Entry dated Sept. 3,
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`2003; Minute Entry dated Dec. 10, 2003.)
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`Plaintiff objects to Magistrate Judge Freeman's findings by arguing that "the delay was
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`after the case was placed on the suspense calendar" and that "[t]he parties consented to place the
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`case on the suspense docket." (Objs. at 7.) Plaintiff previously made substantially the same
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`argument to Magistrate Judge Freeman.
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`(See Pl.'s Mem. of Law in Opp'n to Def.'s Mot. to
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`Dismiss for Failure to Prosecute ("Opp'n"), ECF No. 22, at 8) (arguing that "there were no failures
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`on [Plaintiffs] part" since "[t]he parties consented to place the case on the suspense docket"). As
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`Magistrate Judge Freeman correctly found, however, the fact that the case was placed on the
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`suspense docket did not prevent Plaintiff from taking appropriate and meaningful steps to restore
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`and prosecute her case. (Report at 6.) 5 Even Chief Judge Wood's order administratively closing
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`this case did not prompt Plaintiff to act. In fact, Plaintiffs counsel never provided this Court with
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`the promised update on or after May 2005.
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`The only new point Plaintiff adds is that "there is not a single reported decision finding
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`dismissal warranted after placement on the suspense calendar." (Objs. at 3.) While this may be
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`5 In her opposition to Defendant's motion to dismiss, Plaintiff attaches three letters that Plaintiffs counsel
`allegedly sent to Defendant's counsel during the fourteen-year period that the case was on the suspense
`docket and then administratively closed. First, on December 10, 2004, Plaintiff's counsel allegedly sent
`Defendant's counsel a letter attaching a New York Workers' Compensation Board decision pertaining to
`Plaintiff and "mak[ing] reference to surveillance tapes." (Wietzke Deel., Ex. A (Pl.' s Letter dated Dec. 10,
`2004), ECF No. 23-1.) In that letter, Plaintiff requested Defendant to produce "all surveillances conducted
`of [Plaintiff]." (Id.) Then, on September 26, 2007, Plaintiffs counsel purportedly provided Defendant
`with a "supplement" to Plaintiff's previous discovery responses. (Wietzke Deel., Ex. B (Pl.'s Letter dated
`Sept. 26, 2007), ECF No. 23-2.) Finally, on November 19, 2015, Plaintiff's counsel allegedly informed
`Defendant's counsel that Plaintiff was "ready to request that the Court remove this case from its suspense
`calendar." (Wietzke Deel., Ex. D (Pl.'s Letter dated Nov. 19, 2015), ECF No. 23-4.) Plaintiff's counsel
`also requested a call to discuss how to proceed. (Id.) None of these letters were filed or otherwise reflected
`on the docket, nor was any notice of such activity provided to this Court prior to Plaintiff attaching the
`letters to her opposition. There is no indication that Defendant ever responded to any of these letters. (See
`Opp'n at 5-6.) However, there is also no indication that Plaintiff followed up with Defendant after
`receiving no response, and Plaintiff never raised this as an issue with this Court.
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`6
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 7 of 11
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`true, there are several unreported decisions that are instructive and that indicate that dismissal here
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`is proper. See, e.g., Warren v. Columbia Presbyterian Hosp., No. 12 Civ. 5139 (RA), 2019 WL
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`2250419, at *1 (S.D.N.Y. May 24, 2019) (noting, in denial of plaintiffs motion to reopen action,
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`that court had previously dismissed action for failure to prosecute after placing it on suspense
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`calendar pending plaintiffs surgery); Davidson v. Scully, 83 Civ. 2025 (JPO), 2018 WL 566454,
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`at *2-3 (S.D.N.Y. Jan. 25, 2018) (denying plaintiffs motion to reopen case for failure to prosecute,
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`after plaintiff had requested stay due to his medical incapacity); Cognotec Servs. Ltd. v. Morgan
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`Guar. Tr., Co., No. 93 Civ. 4878 (KTD), 1999 WL 627411, at *3 (S.D.N.Y. Aug. 18, 1999)
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`( dismissing case where plaintiff "fail[ ed] to provide any excuse for its nineteen month period of
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`total inactivity while its case was on suspense").
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`B. Dismissal Is Appropriate, Even Without Formal Notice of Possibility of Dismissal.
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`Magistrate Judge Freeman correctly found that the second factor-notice of the potential
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`dismissal of Plaintiffs claims-also weighs in favor of dismissal, albeit not as heavily as the other
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`factors do. (Report at 7.) Plaintiff raises no new objections to this finding and instead repeats the
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`argument made with respect to the first factor, namely that Defendant did not object to the
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`continuation of the case on the suspense calendar. (Compare Opp'n at 8 ("The parties consented
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`to place the case on the suspense docket."), with Objs. at 7 ("Nor did [Plaintiff] learn from
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`[D]efendant that it objected to the continuation of the case on the suspense calendar .... ").) Even
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`on de nova review, however, Plaintiffs argument fails. Although Plaintiff was not given formal
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`notice that continued failure to prosecute would result in dismissal of her claims, and Defendant
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`consented to the case's placement on the suspense docket in 2004, the Supreme Court has
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`recognized that dismissal under Rule 41 (b) may be appropriate without any notice, depending on
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`the circumstances. Link v. Wabash R.R. Co., 370 U.S. 626,633 (1962). Moreover, Plaintiff was
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`7
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 8 of 11
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`represented throughout this action by the same counsel, who knew or should have known that
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`failing to submit the promised May 2005 update, a September 2006 minute order closing this case
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`after no action for more than twelve months, and over fourteen years of court and docket inactivity
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`could lead to dismissal. See Cognotec 1999 WL 627411, at *3 (dismissing case despite lack of
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`express notice of possibility of dismissal, "[i]n light of [plaintiff's] notice that its case was on
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`suspense and the sophistication of its counsel").
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`C. Defendant Would Suffer Prejudice If Required to Defend This Action.
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`As to the third factor, Magistrate Judge Freeman properly found that Defendant "would
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`undoubtedly suffer real prejudice" if forced to defend this action involving a September 2000
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`incident and a January 2002 incident. (Report at 7.) "Prejudice may be presumed as a matter of
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`law" where a plaintiff causes a delay that is "lengthy and inexcusable." US. ex rel. Drake v.
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`Norden Sys., Inc., 375 F.3d 248,256 (2d Cir. 2004). This is because "delay by one party increases
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`the likelihood that evidence in support of the other party's position will be lost and that discovery
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`and trial will be made more difficult." Shannon v. Gen. Elec. Co., 186 F .3d 186, 195 (2d Cir.
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`1999). As Magistrate Judge Freeman correctly determined, prejudice here should be presumed
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`because Plaintiff's delay in prosecuting was "extraordinarily lengthy," and Plaintiff has made no
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`attempt to excuse any of the periods of delay. (Report at 7.) In addition, the prejudice posed to
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`Defendant is exacerbated by the many number of years that have passed since the events
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`underlying Plaintiff's claims. (Id. at 8.)
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`Plaintiff does not dispute that this case depends largely on the recollection of witnesses.6
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`She instead simply insists that "[i]t will be on [P]laintiff to track down any witnesses to support
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`6 The recollection of witnesses is particularly relevant here, where no depositions were taken of Plaintiff or
`of any witnesses. (See Mem. of Law in Supp. of Def.'s Mot. to Dismiss for Failure to Prosecute, ECF No.
`17, at 5, 6.)
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`8
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 9 of 11
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`her claim." (Objs. at 8.) Whether or not Plaintiff bears this burden is inapposite; concerns
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`regarding evidence and witnesses' memories remain, and Defendant will still need to rely on those
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`recollections of the underlying events to defend its case. Plaintiff also argues that an accident
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`report prepared by Defendant following its investigation into Plaintiff's injuries "militate against
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`any presumed prejudice." (Objs. at 8.) Plaintiff, however, does not demonstrate how any such
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`report would remedy the concerns regarding the reliability of the witnesses' recollections today,
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`over a decade and a half after the events at issue. See, e.g., Davidson, 2018 WL 566454, at *3
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`("Requiring Defendants to defend a thirty-five-year-old claim, with evidence and recollections that
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`are at best seventeen years stale, would be seriously prejudicial.").
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`D. Plaintiff Had the Opportunity to Be Heard.
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`With respect to the fourth factor-requiring this Court to consider the proper balance
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`between managing its docket against Plaintiff's opportunity to be heard-Plaintiff has indeed had
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`such opportunity. As Magistrate Judge Freeman noted, Plaintiff could have requested this Court
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`to restore this case to active status at any time since 2004, and Plaintiff has failed to sufficiently
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`explain her prolonged delay in doing so, or prosecuting her claims. (Report at 8 (citing Valentine
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`v. Metro. Life Ins. Co., No. 85 Civ. 3006 (CSH), 2004 WL 2496074, at *4 (S.D.N.Y. Nov. 4,
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`2004)).)
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`Indeed, Plaintiffs only new objection with respect to this factor is that "the entire point"
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`of placing this case on the suspense calendar was "to avoid the cluttering of the docket in light of
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`the admitted delay occasioned originally by [P]laintiff's pregnancy and then surgeries." (Objs. at
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`8.) However, this does not explain the length of the fourteen-year period during which this case
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`was removed from the active calendar or the years-long stretches of total inactivity during this
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`period. Plaintiff gave birth on June 29, 2004. (Objs. at 4.) It is unclear when she had her back
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`9
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 10 of 11
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`surgery, but as of November 30, 2004, she was expecting to undergo surgery in January 2005.
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`(Hechtkopf Deel., Ex. 5 (Pl.' s Letter dated Nov. 30, 2019).) Although Plaintiff does not indicate
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`when she had her surgery, there is no reason to conclude that it did not happen in early 2005 as
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`was anticipated.
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`Plaintiff's counsel indicated to Defendant's counsel in November 2015 that Plaintiff was
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`ready to proceed with the case, presumably because Plaintiff had, before then, completed her
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`surgery. (Wietzke Deel., Ex. D (Pl.'s Letter dated Nov. 19, 2015).) However, Plaintiff did not
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`contact this Court to reactivate this case until December 2018, over three years later. Even
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`assuming, arguendo, that her surgery took place much later than anticipated, Plaintiff failed to
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`update this Court in May 2005 as promised, or at any time thereafter. Dismissal of this case is
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`therefore warranted under the fourth factor.
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`E. Sanctions Lesser than Dismissal Are Inadequate.
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`As to the fifth factor, Magistrate Judge Freeman determined that no sanction lesser than
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`dismissal would mitigate the prejudice to Defendant described above.
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`(Report at 9.) While
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`Magistrate Judge Freeman considered Plaintiff's suggestion of imposing "strict deadlines," she
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`correctly determined that doing so would not help Defendant obtain the testimonial evidence
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`necessary to aid in its defense. (Id.) Plaintiff now suggests that this Court could also impose the
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`lesser sanction of requiring Plaintiff "to pay [D]efendant's costs in bringing this motion." (Objs.
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`at 8.) Similar to "strict deadlines," however, such payment would do nothing to ameliorate the
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`evidentiary prejudice to Defendant in defending this lawsuit.
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`IV.
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`PLAINTIFF'S CLAIMS ARE DISMISSED WITH PREJUDICE
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`Finally, Magistrate Judge Freeman appropriately found that Plaintiff's claims should be
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`dismissed with prejudice. (Report at 10.) Because Plaintiff did not object to this specific finding,
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`10
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`Case 1:03-cv-04187-GBD-DCF Document 36 Filed 08/02/19 Page 11 of 11
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`this finding need only be reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. at 346-
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`47. As Magistrate Judge Freeman determined, dismissal with prejudice is proper when, as here,
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`"[P]laintiff: having been given the opportunity to be heard, 'offer[s] no explanation or justification
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`for [her] failure to prosecute [her] case."' (Report at 9 (quoting Mitchell v. Martin, No. 90 Civ.
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`6632 (DC), 1995 WL 429023, at *2 (S.D.N.Y. July 20, 1995)).) Accordingly, Plaintiffs action is
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`dismissed with prejudice for failure to prosecute.
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`V. CONCLUSION
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`Plaintiff's objections are OVERRULED, and Magistrate Judge Freeman's Report is
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`ADOPTED. Defendant's motion to dismiss Plaintiff's complaint with prejudice, (ECF No. 15), is
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`GRANTED.
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`The Clerk of Court is directed to close the motion accordingly.
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`Dated: New York, New York
`August 2, 2019
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`SO ORDERED.
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`~ / 8 Y<Jtuk
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`RB.DANIELS
`United States District Judge
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`11
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