In re Gonzalez

• Decision Date: 29 July 2014
• Docket Number: Civil Action No. 3:13 - CV - 650 (CSH)
• Court: U.S. District Court — District of Connecticut
• Parties: LUIS A. GONZALEZ and SONIA V. GONZALEZ, Plaintiffs, v. The United States, Defendant.

LUIS A. GONZALEZ and SONIA V. GONZALEZ, Plaintiffs, v. The United States, Defendant.

Civil Action No. 3:13 - CV - 650 (CSH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

JULY 29, 2014

ORDER OF DISMISSAL

HAIGHT, Senior District Judge:

I. INTRODUCTION

On May 6, 2013, pro se Plaintiffs Louis A. Gonzalez and Sonia V. Gonzalez ("Plaintiffs") filed their "Tort Claims Complaint" against the United States in this action. Upon analyzing the Complaint and court record in this case, the Court finds that the Complaint is properly subject to dismissal on three grounds. First, Plaintiffs have failed to make proper service of the summons and Complaint upon defendant United States ("Defendant"). Second, Plaintiffs have failed to prosecute this action for more than six months, constituting grounds for involuntary dismissal. See Fed. R. Civ. P. 41 (b); D. Conn. L. Civ. R. 41(a). Lastly, even if proper service were effected by Plaintiffs and/or Plaintiffs were given the opportunity to amend with additional allegations, their Complaint would still be fatally defective because it fails to set forth any claims upon which relief may be granted in that it contains only legal impossibilities.

II. DISCUSSION

A. Lack of Proper Service

On May 6, 2013, Plaintiffs filed their "Tort Claims Complaint" against the United States. See Doc. 1. More than fourteen months have elapsed and Plaintiffs have failed to either serve their Complaint and summons upon the Defendant or to provide "good cause" for said failure to serve.

Pursuant to Rule 4(c)(1), Fed. R. Civ. P., the party initiating an action "is responsible for having the summons and complaint served within the time allowed by Rule 4(m)," - i.e., "within 120 days after the complaint is filed." Moreover, "[i]f a defendant is not served within [those] 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m).

When the United States is a party to an action, the plaintiff has specific obligations with respect to proper service. See Fed. R. Civ. P. 4(i)(1)(A)-(C).¹ See also D. Conn. L. Civ. R. 4(b)("Each party filing a new complaint, third-party complaint or amended complaint, shall file sufficient copies of the complaint to supply one (original impression) for the Court, . . . and five for the United States or an officer or agency thereof, if a party."); id. 5(d) ("Except for cases subject to the Electronic Filing Policies and Procedures, in cases in which the United States is a party, three copies of each pleading or other paper filed shall be served upon the United States Attorney or his or her designee in addition to the copies of the summons and complaint required by Rule 4(i), Fed. R. Civ. P.").

As set forth supra, more than 120 days have expired without service of the Complaint and summons upon the Defendant. Absent such service, this Court lacks jurisdiction over the United States as a party. In such circumstances, "[a]bsent proper service and personal jurisdiction, the court would normally dismiss the complaint," Funches v. Conn. Dep't of Pub. Health, No. 3:08-CV-1714 (RNC), 2010 WL 122445, at *1 (D.Conn. Jan. 7, 2010). See also Fed. R. Civ. P. 4(m) (court must dismiss without prejudice or order service after 120 days); Eiden v. McCarthy, 531 F.Supp. 2d 333, 343 (D.Conn. 2008) ("A motion to dismiss pursuant to Rule 12(b)(5) must be granted if the plaintiff fails to serve a copy of the summons and complaint on the defendants pursuant to Rule 4 of the Federal Rules, which sets forth the federal requirements for service.") (citation omitted).

At this point, the Court would ordinarily grant Plaintiffs a brief additional period within which to effect proper service before dismissing the Complaint without prejudice. For the reasons set forth below, however, the Court finds that granting Plaintiffs additional time for service would be futile because their Complaint is fatally defective in that it sets forth "frivolous" claims which cannot be remedied by amendment. See Part II.C. herein.

B. Failure to Prosecute

In addition to failure to effect service, the Plaintiffs in this action have failed to prosecute. Pursuant to the Federal Rule 41(b) of Civil Procedure, "[i]f the plaintiff fails to prosecute or to comply with these [R]ules . . . a defendant may move to dismiss the action or any claim against it" and such a dismissal ordinarily "operates as an adjudication on the merits." Similarly, under Local Rule 41(a) of Civil Procedure, "[i]n civil actions in which no action has been taken by the parties for six (6) months . . . , the Clerk shall give notice of proposed dismissal to counsel of record and pro se parties, if any." D. Conn. L. Civ. R. 41(a) ("Dismissal of Actions - For Failure to Prosecute"). "If such notice has been given and no action has been taken in the action in the meantime and no satisfactory explanation is submitted to the Court within twenty (20) days thereafter, the Clerk shall enter an order of dismissal." Id.

In the case at bar, the Plaintiffs have failed to take any action whatsoever since filing their Complaint on May 6, 2013. Doc. 1. More than one year and two months have elapsed and Plaintiffs have failed to prosecute their action in any way. Pursuant to both Rule 41(b), Fed. R. Civ. P., captioned "Involuntary Dismissal," and or Local Rule 41(a), D. Conn. L. Civ. R., upon notice to Plaintiffs, their action may be subject to dismissal for failure to prosecute.

Although the Court exercises leniency toward pro se litigants, affording them "special solicitude," as directed by the Second Circuit, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam), pro se litigants are also expected to comply with the Federal Rules of Civil Procedure, McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir.1988). Specifically, "all litigants, including pro ses, have an obligation to comply with court orders." Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir.1990). Failure to follow the Federal Rulesmay result in dismissal of a pro se plaintiff's pleadings or claims. See, e.g. McNally v. O'Flynn, No. 09-CV-621S(F), 2010 WL 891151, at *1- 2 (W.D.N.Y. Mar. 10, 2010) (declaring "[a]ll parties, including those proceeding pro se, are required to comply with the Federal Rules of Civil Procedure" and dismissing pro se Petitioner's motions for failure to follow Fed. R. Civ. P. 5(a)(1)(D) by failing to serve Respondent with said motions); Baez v. Kennedy Child Study Center, No. 11 Civ. 7635(JMF), 2013 WL 705913, at *1 (S.D.N.Y. Feb. 27, 2013) (dismissing pro se plaintiff's claims for failure to prosecute and holding that "[a] litigant's pro se status does not relieve her of her discovery obligations" under Fed. R. Civ P. 37) (collecting cases).

Here, Plaintiffs appear to have abandoned this action before the Court. Generally, the Court would grant Plaintiffs an additional twenty days to either prosecute or provide a "satisfactory explanation" for their failure to act before dismissing the Complaint. In the present circumstances, however, additional time would be of no use to Plaintiffs because their Complaint is subject to sua sponte dismissal in that it alleges exclusively frivolous, legally impossible, claims. See Part II.C., infra.

C. Failure to State A Claim

Finally, Plaintiffs' "Tort Claims Complaint" is properly subject to dismissal at this time because it fails to state any claim upon which relief may be granted and, in fact, contains legal impossibilities. "In the Second Circuit, the district court has the authority to dismiss actions sua sponte in the rare case when it faces a truly frivolous suit." Byars v. Malloy, No. 3:11cv17 (SRU), 2011 WL 4538073, at *5 (D.Conn. Sept. 29, 2011) (citing Abrams v. Sprizzo, 201 F.3d 430, 1999 WL 1295815 (Table), at *1 (2d Cir. 1999)). See also Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir.1980) ("[t]he district court has the power to dismiss a complaint sua sponte for failure to state a claim") (citing Robins v. Rarback, 325 F.2d 929[, 930] (2d Cir. 1963), cert. denied, 379 U.S. 974 (1965)); Mallard v. U.S. District Court for Southern District of Iowa, 490 U. S. 296, 307-08 (1989) (although in the context of in forma pauperis proceedings, a particular statute, 28 U.S.C. § 1915(d), "authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision").

An action is frivolous as a matter of law when "the 'factual contentions are clearly baseless,' such as when allegations are the product of delusion or fantasy," when "the claim is 'based on an indisputably meritless legal theory,'" or when "a dispositive defense clearly exists on the face of the complaint."² Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (quoting Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.1990) (per curiam)). Moreover, a Court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32 (1992).

The Second Circuit has repeatedly advised leniency in interpreting pro se litigant's complaints - reminding courts that "pro se litigants . . . cannot be expected to know all of the legal theories on which they might ultimately recover" so that "[i]t is enough that they allege that they were injured, and that their allegations can conceivably give rise to a viable claim." Phillips v.Girdich, 408 F.3d 124, 130 (2d Cir.2005). A court must therefore allow its "imagination [to] be limited only by [the plaintiff]'s factual allegations, not by the legal claims set out in his pleadings." Ford v. New Britain Trans. Co., Case No. 3:03cv150 (MRK)...