Patience is a Virtue (but Only to a Point): How Defense Counsel Can Set the Stage to Secure a Dismissal for Failure to Prosecute

By: Nate Bohlander, Esq.

Despite noncompliance with orders, failing to show up for depositions, missing deadlines, or any one of a host of other malfeasances, Courts will oftentimes bend over backwards to allow a plaintiff to continue to prosecute an action. Given the bevy of statutory and case law in most jurisdictions which supports an allegedly aggrieved party’s ability to withstand dismissal of his or her case, this should not be too surprising. Additionally, on a more “human” level, judges are loathe to throw a plaintiff’s case out for noncompliance, lest they be deemed as insensitive or unsympathetic. 

This frustrates attorneys of the civil defense bar, who are forced to maddeningly wait for chance after chance to be given – and often squandered – by plaintiffs during the pendency of litigation. However, there is hope out there for exasperated defense counsel, as proved by a recent result secured by our firm. 

Our case was litigated in New York’s Queens County, one of the most liberal venues in the state, if not the country. From the very outset of the matter, Plaintiff failed to comply with almost every discovery deadline contained within the Preliminary Conference Order and various Compliance Conference Orders. Plaintiff’s deposition was repeatedly and unilaterally cancelled the afternoon prior to, or the morning of, several scheduled dates. Her attorney relayed every excuse in the book to defense counsel regarding why his client had not – or, in some cases, could not – comply with applicable procedural rules and Orders of the Court.   

Contentious conference calls were conducted, motions were filed, and sanctions were threatened, yet nothing yielded the desired result of prompt and efficient litigation of the case. In fact, Plaintiff’s first attorney withdrew representation of his client, placing the matter in a stay and forcing her to secure new counsel. 

Rather than continue down the same path ad infinitum, our office initiated correspondences with all defense counsel to set the stage to move for dismissal of the matter based upon C.P.L.R. § 3126, which states that:

If any party . . . refuses to obey an order for disclosure . . . the court may make such orders with regard to the failure or refusal as are just, among them:

3. An order . . . dismissing the action or any part thereof. . ..

In advance of this impending joint defense motion, the parties reached out to Plaintiff’s counsel threatening to move for dismissal unless discovery responses, as well as to glean dates for Plaintiff’s deposition, were provided within a proscribed period of time. Sensing that a coordinated strategy was afoot, Plaintiff’s counsel indicated his intention to seek to withdraw representation. This withdrawal would be accompanied by a request for a 90-day stay in order for Plaintiff to acquire new counsel, further delaying the case. 

In order to avoid such a result, Defendants’ counsel filed the Motion to Dismiss before Plaintiff’s counsel could move to withdraw. Each Defendant’s joinder of the Motion included the means by which their client had been specifically prejudiced by Plaintiff’s willful failure to prosecute her case. Additionally, once Plaintiff’s Motion to Withdraw was filed, our office opposed it, limited only to the fact that, since the Motion to Dismiss was filed first, it should be decided first. 

The synchronized effort worked exactly as intended. The Court granted Defendants’ Motion, dismissing the matter with prejudice. The resultant Order almost precisely mirrored the language included by the Defendants in their respective joinders. On the same day this Order was docketed, a second Order rendered Plaintiff’s move to withdraw as moot, since the matter had been already been dismissed.

When handling your claims, frustration will oftentimes set in with respect to plaintiffs’ seemingly nonchalant attitude toward prosecuting his or her case. While your assigned counsel may accurately report that the jurisdiction’s statutory and/or case law provide plaintiffs with a long leash for such behavior, you should not accept such reporting indefinitely. One of the most important elements of a case’s defense is a consistent, proactive approach to moving both written and oral discovery forward. If plaintiffs continuously shirk their Court-mandated responsibilities, as well as fail to comply with Court Orders, speak with your counsel about setting the stage for dismissal of the action in its entirety. The nonsense needn’t go on forever and, at some point, it is likely the Court will agree.