Peters v. CBS Viacom

23-463-cv
Peters v. CBS Viacom
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States Courthouse, 40
Foley Square, in the City of New York, on the 30th day of November, two
thousand twenty-three.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
_____________________________________
Nubia Peters,
Plaintiff-Appellant,
v. 23-463-cv
CBS Viacom,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Nubia Peters, pro se,
New York, NY.
FOR DEFENDANT-APPELLEE: No appearance.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
VACATED and the matter is REMANDED for further proceedings.
* * *
Appellant Nubia Peters, proceeding pro se, sued her alleged former
employer, CBS Viacom, for discriminating against her after she requested a
medical and religious exemption from a vaccination requirement. After granting
Peters’s application to proceed in forma pauperis (“IFP”), the district court ordered
the court clerk to draft a summons and the U.S. Marshals Service to deliver the
filed complaint and drafted summons to the defendant pursuant to 28 U.S.C.
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§ 1915(d) and Federal Rule of Civil Procedure 4(c)(3), which require officers of the
court to issue and serve process on behalf of a plaintiff proceeding IFP.
However, the U.S. Marshals were unable to complete service at the
defendant’s office in New York City. According to a process receipt dated
November 1, 2022, CBS Viacom would not accept service at its Manhattan address;
the Marshals were “[a]dvised” (the receipt did not indicate by whom) to attempt
service at 80 State Street in Albany, New York instead. Marshal’s Process Receipt
and Return of Service Unexecuted, Peters v. CBS Viacom, No. 1:22-cv-6287, ECF No.
10 (S.D.N.Y. July 24, 2022). Another receipt from the next day contained similar
information, with the Marshals advised to “try alternate sites.” Id. at ECF No. 12.
The district court initially extended the deadline to serve CBS by a month
but did not direct Peters to take any action herself. After that date came and went
with no docket activity, the district court entered another short order that
recounted the initial attempt at service and the advice to try instead in Albany.
The order also reflected that the Marshals had “informed the Court” that they had
advised Peters to submit “an amended summons and complaint in order to serve
CBS Viacom at the Albany address.” Order, Peters v. CBS Viacom, No. 1:22-cv-
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6287, ECF No. 13 (S.D.N.Y. July 24, 2022). The court therefore ordered Peters to
take “necessary steps” within the next 25 days to effectuate service, “including by
submitting an amended summons and complaint,” or else “show cause why the
case should not be dismissed for failure to prosecute.” Id. at 2.
Peters did not file anything in the allotted time. Seven days after the
deadline, the district court dismissed the case without prejudice for failure to
prosecute. The order recounted the procedural history of the case but contained
no additional reasoning. Peters appealed.
I. Standard of Review
We review dismissals for failure to prosecute under Federal Rule Civil
Procedure 41(b) for abuse of discretion. Baptiste v. Sommers, 768 F.3d 212, 216 (2d
Cir. 2014) (per curiam). An abuse of discretion occurs when a decision “rests on
an error of law” or a “clearly erroneous factual finding,” or “cannot be located
within the range of permissible decisions.” Buon v. Spindler, 65 F.4th 64, 74 (2d
Cir. 2023) (internal quotation marks and citation omitted); see also United States v.
Nieves, 58 F.4th 623, 632 n.1 (2d Cir. 2023) (emphasizing that “abuse of discretion”
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is a “nonpejorative term of art” that “implies no misconduct on the part of the
district court” (internal quotation marks and citation omitted)).
In this specific context, the scope of the district court’s discretion is
somewhat circumscribed. Because dismissals for failure to prosecute “are the
harshest of sanctions,” any dismissal must be “proceeded by particular procedural
prerequisites,” and a pro se litigant’s claim should be dismissed only “when the
circumstances are sufficiently extreme.” Baptiste, 768 F.3d at 217 (internal
quotation marks and citation omitted).
Thus, before dismissing a complaint for failure to prosecute, a court must
weigh five relevant factors:
(1) the duration of the plaintiff’s failure to comply with the court
order, (2) whether plaintiff was on notice that failure to comply would
result in dismissal, (3) whether the defendants are likely to be
prejudiced by further delay in the proceedings, (4) a balancing of the
court’s interest in managing its docket with the plaintiff’s interest in
receiving a fair chance to be heard, and (5) whether the judge has
adequately considered a sanction less drastic than dismissal.
Id. at 216 (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). Generally, no
factor by itself is dispositive. Id. A court must make a finding of “willfulness,
bad faith, or reasonably serious fault” by evaluating all of the factors. Id. at 217
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(internal quotation marks and citation omitted). And while a failure to discuss
these factors does not itself require remand, “a decision to dismiss stands a better
chance on appeal if the appellate court has the benefit of the district court’s
reasoning.” Lucas, 84 F.3d at 535.
II. Discussion
Here, the court did not consider the five factors and assess whether Peters
was acting with “willfulness, bad faith, or reasonably serious fault.” Baptiste, 768
F.3d at 216–17. Under our own assessment of the factors and other relevant
considerations, see id., we do not think that dismissal was warranted, at least at
this early stage.
a. Duration of Noncompliance
The relevant delay, from the time Peters was ordered to amend documents
to enable the Marshals to effectuate service up to the eventual dismissal, was just
over one month. We have held that even a delay of nearly two months was short
enough to weigh against dismissal. See Nita v. Conn. Dep’t of Env’t. Prot., 16 F.3d
482, 486–87 (2d Cir. 1994).
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More saliently, the court ordered the court clerk to create the original
summons and the Marshals to serve the summons and complaint, and advised
Peters that she was not responsible for either of those aspects of serving her
complaint. In fact, the court’s order informed Peters that by proceeding IFP, she
was “entitled to rely” on the court and the Marshals “to effect service.” Order of
Service, Peters, No. 1:22-cv-6287, ECF No. 5. It was reiterated to Peters, through
the information packet from the court, that plaintiffs proceeding IFP need not
“determine on [their] own how to serve [a] summons and complaint.”
Information Package Mailed, Peters, No. 1:22-cv-6287, ECF No. 8.
Assuming without deciding that it was permissible to shift responsibility
for preparation of an amended summons and complaint from the “officers of the
court,” 28 U.S.C. § 1915(d), to Peters after the Marshals were told of the better
address to use for service, Peters may not have realized that she was being tasked
with that responsibility for the first time in the court’s penultimate order, which
did not otherwise explain why the burden had been shifted. Accordingly, the
brief delay, for which Peters may not have been entirely responsible, does not
weigh in favor of dismissal.
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b. Pre-Dismissal Warning
Second, Peters was told that she must take the required steps to effectuate
service or “show cause why the case should not be dismissed for failure to
prosecute.” Order, Peters, No. 1:22-cv-06287, ECF No. 13. While this is not quite
a warning that the case would be dismissed for failure to prosecute if she did not
comply, it nevertheless serves as partial notice of the possibility of dismissal, and
thus weighs somewhat against Peters.
c. Prejudice to the Defendant
Third, there is no suggestion in the record that the one month-long delay
prejudiced the defendant. See LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 210
(2d Cir. 2001) (deciding factor weighed against dismissal where “no indications
that the delay increased the litigation costs defendants had to bear or reduced
(perhaps due to decaying evidence) their likelihood of success on the merits”);
Lucas, 84 F.3d at 535 (concluding that the prejudice factor weighed against
dismissal where there was “absolutely no evidence” that the delay “prejudiced the
defendants in any way”). This factor weighs against dismissal.
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d. Docket Management and Plaintiff’s Interest in Being Heard
The fourth factor requires a district court to balance its need to alleviate
calendar congestion against the plaintiff’s right to a day in court. Baptiste, 768
F.3d at 218–19. We have explained that “[t]here must be compelling evidence of
an extreme effect on court congestion before a litigant’s right to be heard is
subrogated to the convenience of the court.” Lucas, 84 F.3d at 535–36. There is
no indication in the record that Peters’s failure to either timely effectuate service
or respond created a burden for or added to the congestion of the district court.
Accordingly, the balance-of-interests factor weighs against dismissal.
e. Consideration of Lesser Sanctions
Finally, the district court did dismiss Peters’s complaint without prejudice,
indicating that it considered less severe sanctions than a pure with-prejudice
dismissal. See Sanchez v. Cnty. of Dutchess, No. 21-2408, 2023 WL 3047971, at *2
(2d Cir. Apr. 24, 2023) (summary order). However, the consideration of lesser
sanctions does not counterbalance the other factors, which generally tip in Peters’s
favor. See also Sanchez, 2023 WL 3047971, at *2 (remanding where “[i]n dismissing
the case without prejudice, the district court clearly considered less severe
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sanctions than dismissal with prejudice, but we cannot tell whether and how it
considered the other factors”). Here, the district court’s statement that Peters had
not responded to the court’s order instructing her to submit an amended summons
and complaint does not tell us whether and how the other factors were considered.
Accordingly, this factor weighs against dismissal.
* * *
For the above reasons, we conclude that the dismissal here was premature,
especially considering the shift in responsibility from court staff to Peters and the
straightforward nature of the service defect. Accordingly, we VACATE and
REMAND for further proceedings consistent with this decision.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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