DECISION AND ORDER
WILLIAM M. SKRETNY, District Judge.
In this action, pro se plaintiff Tracy Stevens
Stevens filed this action and moved to proceed in forma pauperis on June 18, 2013. (Docket No. 1.) She filed an amended complaint on April 29, 2014 (Docket No. 7) and a second amended complaint on April 30, 2014 (Docket No. 9), in response to the court's initial screening order, which also granted her request to proceed in forma pauperis (Docket No. 4).
On April 15, 2014, the court screened the second amended complaint and found that Stevens's FMLA claims against Defendants should proceed to service. (Docket No. 10.) Because Stevens is proceeding in forma pauperis, the court directed the United States Marshal Service to serve the summons and second amended complaint on Defendants. (Docket No. 10.)
The docket reflects that summonses were issued for Defendants and sent to the United States Marshal Service for service on May 6, 2015, and again on November 30, 2015. The return of summons for each individual defendant was returned as "unexecuted," because each defendant had left Fidelis Care's employ. (Docket No. 16.) The return of summons for Fidelis Care was return as "personally served" on a Human Resources Specialist at Fidelis Care's Buffalo facility on December 1, 2015. (Docket No. 16.)
On December 21, 2015, Defendants filed a Motion to Dismiss for insufficient service of process, followed by two subsequent reply submissions. (Docket No. 12, 14, 19.) Stevens responded to Defendants' motion on August 8, 2016. (Docket No. 20.)
On December 13, 2016, this Court denied Defendants' Motion to Dismiss and granted Stevens an additional 90 days to properly effectuate service. (Docket No. 21.) This Court explained how service could be accomplished and warned Stevens that this action could be dismissed for failure to prosecute if she did not accomplish service as directed. (Docket No. 21.) Nonetheless, 90 days passed and Stevens failed to properly serve Defendants. (Docket No. 22.)
On May 12, 2017, this Court sua sponte extended Stevens's time in which to effectuate service by 30 days and again warned her that her case could be dismissed for insufficient service of process or failure to prosecute or both if she failed to effectuate service as directed. (Docket No. 23.) Stevens again failed to accomplish service.
On June 19, 2017, this Court again sua sponte extended Stevens's time to effectuate service and indicated that it would be her final extension of time to do so. (Docket No. 24.) This Court also warned Stevens that her complaint could be dismissed if she failed to properly effectuate service and prosecute her case. (Docket No. 24.) Stevens again failed to serve Defendants. (Docket No. 25.)
Since the date of this Court's initial decision granting Stevens 90 days to properly effectuate service (Docket No. 21), more than 225 days have passed and Stevens has taken no action in this case, despite having been sent multiple orders and declarations, none of which have been returned as undeliverable.
Dismissal of this case is warranted on two fronts: insufficient service of process and failure to prosecute.
A. Insufficient Service of Process
Defendants initially moved to dismiss on the basis that Stevens failed to properly serve them within 120 days of filing her second amended complaint, as required by the version of Rule 4 (m) of the Federal Rules of Civil Procedure in effect at that time.
Once a plaintiff is granted permission to proceed in forma pauperis, the responsibility for effecting service of summons and complaint shifts to the court.
In so finding, this Court explained to Stevens precisely what she needed to provide the Marshals Service so that it could accomplish service and it further advised Stevens that it was her responsibility to confirm with the Marshals Service that service had been accomplished and, if necessary, to request an extension of time for service.
Yet without explanation, and with no contact in more than 225 days, Stevens failed to properly serve Defendants as directed. And she did so despite this Court's multiple warnings that her failure to act could result in dismissal of her case. Stevens's conduct in this regard is not reasonable and no cause whatsoever has been submitted to excuse her multiple failures. Consequently, this case will be dismissed under Rule 12 (b)(5) for insufficient service of process.
B. Failure to Prosecute
This case separately warrants dismissal based on Stevens's failure to prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides that:
FED. R. CIV. P. 41(b).
Where the defendant has not moved under Rule 41(b), a court may nonetheless dismiss a case sua sponte.
Rule 41 (b) does not define what constitutes failure to prosecute. But 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."
The following factors, none of which is dispositive, must be considered in 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.
Here, these factors weigh in favor of dismissal. Stevens has been inattentive to this case and has ignored this Court's multiple orders. More than 225 days have passed since this Court directed Stevens to properly serve Defendants with her second amended complaint. Stevens has been warned at least three times that her continued failure to adhere to this Court's directives could result in dismissal of her case. Defendants, meanwhile, continue to be prejudiced by the passage of time. This Court has made every effort to protect Stevens's Due Process rights and to assist her in accomplishing proper service, but she has not taken advantage of these efforts and instead has taken no action and been entirely non-communicative since December 2016. In light of these circumstances, this Court finds that no sanction short of dismissal would be appropriate. Dismissal under Rule 41 (b) is therefore warranted.
Because Stevens has neither accomplished service of process as directed nor dutifully prosecuted this action, this case will be dismissed for insufficient service of process and failure to prosecute.
IT HEREBY IS ORDERED, that this case is DISMISSED for insufficient service of process and failure to prosecute.
FURTHER, that the Clerk of Court is directed to CLOSE this case.