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Stinton et al v. McCarthy et al

Doc. 27

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

STEPHEN STINTON and COLBY STINTON, Plaintiffs, v. BRYAN C. MCCARTHY and JOHN BELL, Defendants.

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CIVIL ACTION NO. 09-11207-JGD

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE
March 4, 2011 DEIN, U.S.M.J. I. INTRODUCTION In this action plaintiffs, Stephen Stinton and Colby Stinton, claim that the defendants, Bryan C. McCarthy and John Bell, violated their constitutional and state law rights by attacking Stephen Stinton with pepper spray and physically assaulting him during the course of an arrest on December 7, 2006. The matter is presently before the court on "Defendants Bryan C. McCarthy and John Bell's Motion to Dismiss Plaintiffs' Complaint with Prejudice" (Docket No. 26), by which the defendants are seeking dismissal of the case with prejudice due to lack of prosecution. The plaintiffs have not opposed the motion. After consideration of the defendants' argument, and for all the

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reasons detailed herein, the motion is ALLOWED IN PART and DENIED IN PART in that the action will be dismissed, but the dismissal shall be without prejudice. II. BACKGROUND The plaintiffs filed their Complaint in this action on July 15, 2009. The case proceeded in the usual course, and as of a status conference held on October 6, 2010, both parties were in compliance with the court's scheduling orders and had attended all scheduled status conferences. (See, e.g., Docket Nos. 20 and 21). However, on October 28, 2010, plaintiffs' counsel filed a motion to withdraw as counsel on the basis of an "irretrievable breakdown" between the plaintiffs and their attorneys. (Docket No. 22). The plaintiffs did not oppose the motion and did not appear for a scheduled hearing on the motion, which took place on November 22, 2010. Counsel had been ordered to notify his clients of the hearing, and he advised the court that he had done so. (See Docket No. 25). On November 22, 2010, this court issued an Order on Motion to Withdraw as Counsel ("Order") in which it allowed the motion to withdraw as counsel and ordered the plaintiffs to "obtain new counsel to represent them in this matter or file a notice of appearance to appear pro se" by January 3, 2011. (Docket No. 24). This court further ordered the parties to file, by January 17, 2011, a joint proposed schedule for the completion of discovery. (Id.). In addition, this court stated that if the plaintiffs failed to comply with their obligation to file an appearance, the defendants could "file an appropriate motion with the court seeking to dismiss this action." (Id.). Counsel was -2-

ordered to notify the plaintiffs of the order. The plaintiffs did not meet the January 3 deadline, and the defendants filed the pending motion to dismiss on January 5, 2011. According to their certificate of service, the defendants mailed a copy of the motion to dismiss to the plaintiffs. The plaintiffs have not opposed or otherwise responded to the motion to dismiss. Moreover, as of this date, the plaintiffs have not filed a notice of pro se appearance, and no counsel has filed an appearance on their behalf. Additionally, the plaintiffs failed to appear at a February 3, 2011 status conference which had been scheduled at the October 6, 2010 status conference. (See Docket No. 21). Because the plaintiffs have failed to make an appearance, comply with any of this court's orders, or otherwise attempt to pursue their lawsuit since October 2010, the matter has come to a complete halt. III. ANALYSIS "[T]he effective administration of justice requires that trial courts possess the capability to manage their own affairs. The authority to order dismissal in appropriate cases is a necessary component of that capability." Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 4 (1st Cir. 2002) (internal citation omitted). "Moreover, the inherent power of trial courts to dismiss cases for want of prosecution or disregard of judicial orders is reinforced and augmented by [Civil Procedure] Rule 41(b)." Id. That Rule authorizes

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the district court to dismiss an action for failure to prosecute, to comply with the Federal Rules of Civil Procedure, or to comply with court orders. See Fed. R. Civ. P. 41(b).1 Notwithstanding the court's authority, "dismissal ordinarily should be employed as a sanction only when a plaintiff's misconduct is extreme." Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003). Moreover, "dismissal should not be viewed either as a sanction of first resort or as an automatic penalty for every failure to abide by a court order." Id. Accordingly, "the ordering court should consider the totality of events and then choose from the broad universe of available sanctions in an effort to fit the punishment to the severity and circumstances of the violation." Id. Dismissal with prejudice "should be employed . . . only after the district court has determined that none of the lesser sanctions available to it would truly be appropriate." Malot v. Dorado Beach Cottages Assocs., 478 F.3d 40, 44 (1st Cir. 2007) (quotations and citation omitted). This court concludes that dismissal is appropriate under the circumstances presented here. Although dismissal is ordinarily reserved as a sanction for extreme misconduct, "disobedience of court orders is inimical to the orderly administration of justice and, in and of itself, can constitute extreme misconduct." Young, 330 F.3d at 81. In the instant case, the plaintiffs have failed to comply with this court's express order to

Rule 41(b) provides as follows: "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

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