Butcavage v. County of Oswego et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
MICHAEL BUTCAVAGE,
Plaintiff,
-v- 	9:25-CV-1000 (AJB/CBF)
COUNTY OF OSWEGO et al.,
Defendants.
_____________________________________
Hon. Anthony Brindisi, U.S. District Judge:
ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE
This is a counseled civil rights case. 	It was initially filed in Supreme Court, Oswego
County. See Dkt. No. 2. But defendants removed the action to federal court because the pleading
alleged a 42 U.S.C. § 1983 claim. Dkt. No. 1. Thereafter, defendants answered, Dkt. No. 4, the
parties participated in a Rule 16 conference with the assigned magistrate judge, see Dkt. No. 6,
and, at least as of December 12, 2025, paper discovery seemed to be moving forward at a normal
pace, see Dkt. No. 8.
Come to find out it wasn’t. On May 28, 2026, defendants filed a letter seeking a discovery
conference. Dkt. No. 10. There, defendants explained that plaintiff’s counsel had yet to respond
to their discovery demands, which had been served on August 7, 2025. Id. Newly assigned U.S.
Magistrate Judge Carla B. Freedman promptly held a status conference. Dkt. No. 12. There, Judge
Freedman extended certain deadlines and, based on her discussion with the parties, gave plaintiff’s
counsel twenty days in which to serve a proposed amended complaint. Id.
Plaintiff’s counsel failed to comply. 	On July 14, 2026, a couple weeks after the initial
deadline in which to do so expired, Judge Freedman sua sponte extended the time period for an
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(1) whether the plaintiff “caused a delay of significant duration”;
extra week. Dkt. No. 13. But plaintiff’s counsel failed to comply with that deadline, too. On July
24, 2026, a few days after the revised deadline expired, Judge Freedman sua sponte extended the
deadline another week. Dkt. No. 14. And this time, she cautioned plaintiff that his failure to
comply “may result in sanctions including, but not limited to, dismissal of the action for a failure
to prosecute and failure to follow Court orders.” Id. Plaintiff blew the deadline again. So on
August 4, 2026, Judge Freedman gave defendants leave to file a motion to dismiss. Dkt. No. 15.
On August 31, 2026, defendants moved to dismiss the action pursuant to Federal Rule of
Civil Procedure 41(b). Dkt. Nos. 16, 17. Plaintiff has failed to respond, and the time period in
which to do so has expired. See Dkt. No. 17 (setting plaintiff’s opposition deadline for September
21, 2026). The motion will be considered on the basis of the available submissions without oral
argument.
Under Rule 41 of the Federal Rules of Civil Procedure, a trial court may dismiss an action
“[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed. R. Civ. P.
41(b); Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006) (explaining that “these rules” in-
cludes the Federal Rules and a district’s local rules of practice). The outright dismissal of a case
is a “harsh remedy to be utilized only in extreme situations.” United States ex rel. Drake v. Norden
Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). Even so, the authority to dismiss an action that a
litigant has failed to prosecute “is vital to the efficient administration of judicial affairs and pro-
vides meaningful access for other prospective litigants to overcrowded courts.” Lyell Theatre
Corp. v. Loews Corp., 683 F.3d 37, 42 (2d Cir. 1982).
To determine whether dismissal instead of some lesser sanction is warranted, a district
court must weigh five factors:
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(2) whether the plaintiff was “given notice that further delay would
result in dismissal”;
(3) whether the defendant was “likely to be prejudiced by further
delay”;
(4) whether dismissal would balance “the need to alleviate court cal-
endar congestion . . . against [the] plaintiff’s right to an opportunity
for a day in court”; and
(5) whether lesser sanctions would be effective.
Drake, 375 F.3d at 254. 	“No single factor is generally dispositive.” 	Baptiste v. Sommers, 768
F.3d 212, 216 (2d Cir. 2014) (per curiam).
Measured against this general legal standard, defendants’ motion to dismiss must be
granted. 	First, plaintiff has caused a significant delay. 	Although the parties exchanged initial
disclosures, plaintiff never responded to defendants’ discovery demands, which were propounded
on August 7, 2025. See Dkt. No. 10. And after Judge Freedman held a status conference to try to
get the case back on track, plaintiff’s counsel blew a series of additional deadlines that she had set
and then reset: on June 29, 2026, on July 20, 2026, and on July 31, 2026. Dkt. Nos. 12, 13, 14.
Thus, as of October 2026, more than a year of delay—first from outstanding discovery
responses; later from repeated non-compliance with Court-ordered deadlines—is attributable to
plaintiff’s counsel’s inaction. While short delays generally do not weigh in favor of dismissal, our
Local Rules recognize that a delay of four months is “presumptive evidence of lack of prosecu-
tion,” N.D.N.Y. L.R. 41.2(a), and courts regularly find that this factor weighs in favor of dismissal
where, as here, the delay has stretched beyond a few months, see, e.g., Rouse v. Transworld Sys.,
Inc., 811 F. Supp. 3d 400, 406 (E.D.N.Y. 2025) (collecting cases).
Second, plaintiff has been given notice and warning that continued delay would result in
dismissal. As noted supra, Judge Freedman cautioned plaintiff that his failure to comply with the
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revised deadline “may result in sanctions including, but not limited to, dismissal of the action for
failure to prosecute and failure to follow Court orders.” Dkt. No. 14. The Court’s ECF records
show that plaintiff’s counsel of record is active in the system as a “Filing User” who has electronic
filing access to this Court within the meaning of General Order 22. The Court’s ECF receipt for
the cautionary text order entered by Judge Freedman shows that notice was electronically mailed
to the e-mail address associated with plaintiff’s counsel’s Filing User account. And the Court’s
Local Rules make clear that documents filed on ECF constitute good service on case participants
who receive ECF filings. N.D.N.Y. L.R. 5.1(a).
This is all a long-winded, hyper-technical way of saying what should be obvious: plaintiff’s
counsel is an attorney who practices in this jurisdiction and is therefore registered to send and
receive electronic notices in this case through the Court’s ECF system (indeed, there is no indica-
tion that plaintiff’s counsel failed to receive previous notifications sent this way, such as the text
notice scheduling the video conference before Judge Freedman). So plaintiff was on notice.
Third, defendant is likely to be prejudiced by further delay. The operative pleading alleges
claims arising from events that occurred on March 24–26, 2024. Dkt. No. 2. The action was
removed to this Court on July 28, 2025, over a year later. Dkt. No. 1. And defendants’ discovery
demands from August of 2025 still remain outstanding another a year later, since it is October of
2026 as of this writing. See Dkt. No. 16 at 9. The simple passage of time—well two years and
counting at this point—makes a claim harder to investigate and defend. But courts are also willing
to presume some level of prejudice where, as here, “the delay was lengthy and inexcusable.” Caus-
sade v. United States, 293 F.R.D. 625, 630 (S.D.N.Y. 2013) (collecting cases) (quoting Norden
Sys., Inc., 375 F.3d at 256).
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Therefore, it is
ORDERED that
1. Defendant's motion to dismiss (Dkt. No. 16) is GRANTED; and
2. Plaintiff’s complaint is DISMISSED with prejudice.
The Clerk of the Court is directed to terminate the pending motion, enter a judgment ac-
cordingly, and close the file.
IT IS SO ORDERED.
Dated: October 15, 2026
Utica, New York.
Fourth, the Court’s need to keep cases on the docket moving along outweighs plaintiff’s
interest in receiving a further chance to be heard. Although plaintiff’s failure to prosecute comes
in the form of non-responsiveness (as opposed to vexatious or burdensome conduct), “the Court
has a strong interest in managing its docket and cannot indefinitely wait for [plaintiff] to turn his
attention to this case.” Pena v. Zazzle, Inc., 587 F. Supp. 3d 109, 114 (S.D.N.Y. 2022). After all,
plaintiff is represented by counsel, who has an ethical obligation to protect his client’s interests.
Under these circumstances, the Court is unwilling to permit this case to further stagnate.
Fifth and finally, there is no indication that some lesser sanction would be effective. Plain-
tiff’s counsel has been unresponsive to Judge Freedman’s prior orders. A lesser sanction than
dismissal would necessarily come in the form of a further court order and would be just as likely
to be ignored as the entries at Dkt. Nos. 12, 13, and 14.
In sum, the relevant factors weigh strongly in favor of dismissal with prejudice for failure
to prosecute this action or comply with court orders. Accordingly, defendant’s motion to dismiss
on this basis will be granted.
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