     08-2149-cv
     Doyle v. American Home Products Corporation



 1                      UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5
 6                               August Term, 2008
 7
 8
 9     (Argued: July 15, 2009               Decided: September 29, 2009)
10
11                            Docket No. 08-2149-cv
12
13
14   - - - - - - - - - - - - - - - - - - - -X
15
16
17   ROBERT DOYLE,
18            Plaintiff-Appellant,
19
20                     -v.-                                 08-2149-cv
21
22   AMERICAN HOME PRODUCTS CORPORATION AND
23   AMERICAN CYANAMID COMPANY,
24            Defendants-Appellees.
25
26
27   - - - - - - - - - - - - - - - - - - - -X
28
29
30   Before:           JACOBS, Chief Judge, SACK, Circuit Judge, and
31                     GOLDBERG, Judge. *
32
33
34         Plaintiff Robert Doyle appeals from a district court

35   order dismissing his case as untimely under the relevant

36   statute of limitations.         The district court concluded that a

           *
           The Honorable Richard W. Goldberg, United States
     Court of International Trade, sitting by designation.
1    dismissal in state court for failure to appear at a court

2    conference constituted a dismissal “for neglect to

3    prosecute” such that Doyle could not avail himself of a six-

4    month tolling provision under New York Civil Practice Law

5    and Rules section 205(a).     For the foregoing reasons, we

6    affirm the dismissal.

7

 8                                 TODD C. BANK, Kew Gardens, New
 9                                 York, for Appellant.
10
11
12                                 LAUREN J. ELLIOT, (Daniel J.
13                                 Thomasch, on the brief), Orrick,
14                                 Herrington & Sutcliffe LLP, New
15                                 York, New York, for Appellees.
16
17
18   DENNIS JACOBS, Chief Judge:

19       Robert Doyle’s 1996 suit against a pharmaceutical

20   manufacturer alleging injury for a drug he took in 1989 and

21   1993, was dismissed in 2006 by the New York state court

22   after Doyle and his attorney failed to appear at a

23   scheduling conference.   When Doyle later commenced this

24   diversity suit on the same claim, Doyle resisted the drug

25   company’s limitations defense on the ground that the New

26   York Civil Practice Law and Rules (“CPLR”) section 205(a)

27   tolls the statute of limitations during the pendency of the

28   prior action, and for six months after dismissal, if the

                                     2
1    prior action was dismissed for a technical reason, but not

2    if the prior action was dismissed for “neglect to

3    prosecute.” 1    Doyle now appeals from the order entered by

4    the United States District Court for the Eastern District of

5    New York (Korman, J.) on April 1, 2008, which dismissed his

6    federal action pursuant to Rule 12(c) of the Federal Rules

7    of Civil Procedure on the ground that the statute of

8    limitations--long exceeded--had not been tolled.      Doyle v.

9    Am. Home Prods. Corp., No. 06 Civ. 5392 (ERK) (E.D.N.Y. Mar.

10   31, 2008).      The question on appeal is whether the dismissal

11   in state court constituted a dismissal “for neglect to

12   prosecute.”

13                                    I

14        The State Court Litigation.     Doyle commenced this

15   personal injury action in New York State Supreme Court,

16   Kings County, in May 1996, alleging injuries arising from



          1
            The statute was amended in July 2008. However, that
     amendment was not in effect at the time of the state court
     dismissal (March 2006) or the district court dismissal
     (April 2008), and “[g]enerally, an amendment will have
     prospective application only, and will have no retroactive
     effect unless the language of the statute clearly indicates
     that it shall receive a contrary interpretation.” N.Y.
     Stat. Law § 52. Section 205(a), as amended, contains no
     language indicating that it should be applied retroactively;
     accordingly, we do not apply it to the present dispute.

                                      3
1    his 1989 and 1993 ingestion of “Minocin,” a drug

2    manufactured and sold by Defendants, American Home Products

3    Corporation, now known as Wyeth Holdings Corporation, and

4    its subsidiary, American Cyanamid Company (“Defendants”).

5    The suit asserted claims for negligence, warranty, strict

6    products liability, and misrepresentation.

7        Defendants’ motion for summary judgment was granted in

8    March 2000, and re-argument was denied.     In April 2000,

9    Doyle appealed, and in August 2001, the Appellate Division

10   (Second Department) affirmed the dismissal of all claims

11   other than breach of warranty.

12       On return to the trial court, the parties moved to

13   compel discovery.   In August 2002, Doyle was ordered within

14   60 days to (1) provide authorizations for the release of all

15   medical records, and (2) respond to discovery requests that

16   had been served five months earlier (in March 2002).     More

17   than three months later, Doyle had provided neither the

18   authorizations nor the responses.     A phone call to Doyle’s

19   attorney elicited a promise to provide the materials within

20   two weeks.   According to Defendants, neither Doyle nor his

21   counsel provided the materials.     In Doyle’s affidavit, he

22   insists that he served the authorizations upon Defendants



                                   4
1    and that the issue was in dispute because Defendants

2    mistakenly believed that they had not received all of the

3    authorizations requested.    Doyle does not explain or excuse

4    his failure to submit the discovery requests.

5        For the next two years, Doyle admits he did nothing to

6    litigate the action.    In October 2005, Defendants served

7    Doyle’s attorney with a demand for resumption of

8    prosecution.   Doyle’s attorney indicated that his client

9    intended to resume litigation and requested that Defendants

10   respond to interrogatories submitted by Doyle approximately

11   four years earlier.    In January 2006, Defendants reminded

12   Doyle by letter that: (1) they had responded to the

13   interrogatories three and one-half years earlier (in May

14   2002); and (2) Doyle was out of compliance with the August

15   2002 order requiring authorizations and responses within 60

16   days.

17       On March 2, 2006, approximately two months after the

18   Defendants’ letter, the court scheduled a status conference

19   for March 21, 2006.    Neither Doyle nor his counsel appeared

20   at the conference.

21       The Dismissal.     Section 202.27 of New York’s Uniform

22   Civil Rules for the Supreme Court and the County Court



                                    5
1    (“§ 202.27") confers authority on the court to dismiss a

2    cause of action because of the failure of a party to appear

3    at any court conference.   22 NYCRR § 202.27(b).   On the day

4    that Doyle and his attorney failed to appear, Justice Diana

5    A. Johnson signed an order stating in its entirety:

 6             Dismissed for failure to appear at
 7             March 21, 2006 Court Ordered Status
 8             Conference.
 9
10   The order was entered on April 3, 2006, and notice of entry

11   of the order was served on Doyle’s attorney on April 13,

12   2006.

13       The Federal Court Action.     Doyle filed no motion to

14   vacate the default, and filed no appeal from the dismissal.

15   Instead, on September 19, 2006 (approximately five months

16   after the dismissal), Doyle commenced the current action pro

17   se in the Eastern District of New York, alleging diversity

18   jurisdiction and pleading all four claims from the initial

19   state court complaint. 2

20       After some procedural maneuvering and at least one

21   conference, Defendants moved on February 16, 2007 for

22   judgment on the pleadings or (in the alternative) for

23   summary judgment.   Among other things, Defendants argued


         2
             Doyle is now represented by counsel.

                                   6
1    that Doyle’s action was untimely and could not be saved by

2    the tolling provision of CPLR 205(a), which affords no

3    tolling when actions are dismissed “for neglect to

4    prosecute.”   N.Y. CPLR 205(a).   Doyle conceded that

5    dismissal was appropriate for all claims except the breach

6    of warranty claim (which was the only viable claim in state

7    court by the time that action was dismissed).    As to that

8    remaining claim, Doyle invoked section 205(a), the relevant

9    version of which provides:

10            If an action is timely commenced and is
11            terminated in any other manner than by [1]
12            a voluntary discontinuance, [2] a failure
13            to obtain personal jurisdiction over the
14            defendant, [3] a dismissal of the
15            complaint for neglect to prosecute the
16            action, or [4] a final judgment upon the
17            merits, the plaintiff . . . may commence a
18            new action upon the same transaction or
19            occurrence . . . within six months after
20            the termination . . . .
21
22   N.Y. CPLR 205(a).

23       By Memorandum and Order dated March 31, 2008, the

24   district court granted Defendants’ motion and dismissed the

25   action in its entirety, concluding that Doyle’s laxness

26   precluded him from the benefit of “the six-month time

27   extension ordinarily awarded to a non-merits dismissal by

28   CPLR 205(a).” (quotations omitted).    By order dated July 16,



                                   7
1    2008, the district court declined to reconsider its order

2    and reaffirmed its conclusion:

 3            [T]he immediate and precipitating cause
 4            of the dismissal . . . was the
 5            culmination of a course of conduct that
 6            plainly demonstrated a neglect to
 7            prosecute. Even though the order did not
 8            specifically allude to the plaintiff’s
 9            dilatory tactics that spanned years, [the
10            dismissal] should be treated as one for
11            neglect to prosecute.
12
13   Doyle v. Am. Home Prods. Corp., No. 06 Civ. 5392 (ERK), at 5

14   (E.D.N.Y. Mar. 31, 2008).   Doyle now appeals from that

15   conclusion.

16                                 II

17       We review a dismissal under Rule 12(c) de novo.   Morris

18   v. Shroder Capital Mgmt. Int’l, 445 F.3d 525, 529 (2d Cir.

19   2006).

20       Doyle argues on appeal that his failure to appear for a

21   single court conference does not, in the circumstances

22   presented here, constitute “neglect to prosecute” within the

23   meaning of 205(a); accordingly, a dismissal under section

24   202.27(b) does not preclude the application of section

25   205(a)’s six-month tolling period.   According to Doyle, it

26   does not matter that a state court could have dismissed an

27   action for failure to prosecute unless the state court



                                   8
1    actually did so, and made findings to support that

2    conclusion.

3        In response, Defendants argue that a dismissal for

4    failure to appear can constitute a dismissal “for neglect to

5    prosecute” when the record supports such a reading.

6    Defendants argue that section 202.27 is simply a procedural

7    tool available to effect such a dismissal.

8                                  III

9        The relevant version of section 205(a) provides that

10   “[i]f an action is timely commenced and is terminated in any

11   other manner than by . . . a dismissal of the complaint for

12   neglect to prosecute the action . . . the plaintiff . . .

13   may commence a new action . . . within six months after the

14   termination . . . .”    N.Y. CPLR 205(a).   Case law exploring

15   the purpose of 205(a) is well-developed and long-settled:

16   the roots of 205(a) can be traced “to seventeenth century

17   England,” and “the remedial concept embodied in CPLR 205(a)

18   has existed in New York law since at least 1788.”     Reliance

19   Ins. Co. v. Polyvision Corp., 9 N.Y.3d 52, 56, 876 N.E.2d

20   898, 899 (N.Y. 2007).

21       “The obvious purpose of CPLR § 205(a) . . . is to

22   prevent the general statute of limitations from barring


                                    9
1    recovery because a court has ordered a timely action to be

2    terminated for some technical defect that can be remedied in

3    a new one.”     Graziano v. Pennell, 371 F.2d 761, 763 (2d Cir.

4    1967).     The statute is “said to be an outgrowth of the

5    ancient common law rule of ‘journey’s account,’ a period

6    allowed to permit a party, whose action had abated for

7    matter of form, a reasonable time within which to journey to

8    court to sue out a new writ.”        Id. (quotations omitted).

9    However, in order to receive the benefit of 205(a) tolling,

10   the litigant must have prosecuted his original claim

11   diligently.     Judge Cardozo described 205(a)’s precursor

12   statute:     “The statute is designed to insure to the diligent

13   suitor the right to a hearing in court till he reaches a

14   judgment on the merits.”     Gaines v. City of New York, 215

15   N.Y. 533, 539, 109 N.E. 594, 596 (N.Y. 1915) (emphasis

16   added).     The New York courts have affirmed this point again

17   and again: “[t]he very function of [CPLR 205(a)] is to

18   provide a second opportunity to the claimant who has failed

19   the first time around because of some error pertaining

20   neither to the claimant’s willingness to prosecute in a

21   timely fashion nor to the merits of the underlying claim.”

22   George v. Mount Sinai Hosp., 47 N.Y.2d 170, 178-79, 390



                                     10
1    N.E.2d 1156, 1161 (N.Y. 1979); see also Morris Investors,

2    Inc. v. Comm’r of Fin. of City of New York, 503 N.Y.S.2d

3    363, 366, 121 A.D.2d 221, 225 (1st Dep’t 1986) (quoting

4    George v. Mount Sinai Hosp.), aff’d, 509 N.E.2d 329 (N.Y.

5    1987); Graziano, 371 F.2d at 763 (quoting Judge Cardozo in

6    Gaines v. City of New York); Producers Releasing Corp. v.

7    Pathe Indus., 184 F.2d 1021, 1023 (2d Cir. 1950) (same).      In

8    short, the purpose of 205(a) is to save cases otherwise

9    dismissed on curable technicalities--but only when the

10   litigant has diligently prosecuted the claim.

11       Here, the district court’s dismissal was proper because

12   the record plainly reflects that Doyle failed to diligently

13   prosecute his claim.   Doyle initially filed suit in state

14   court in 1996, failed to submit to discovery, and admittedly

15   failed to take any action in the case for a two-year period.

16   After prompting by the Defendants, he sought to revive the

17   action, only to fail to appear for a conference shortly

18   thereafter.   Under these circumstances, we have no trouble

19   concluding that the dismissal for failure to appear amounted

20   to a dismissal “for neglect to prosecute” barring

21   application of 205(a) tolling.     See, e.g., Villanova v. King

22   Kullen Supermarkets, 558 N.Y.S.2d 55, 56, 163 A.D.2d 203,



                                   11
1    203 (1st Dep’t 1990).

2                                 IV

3        Our conclusion, based on statutory purpose, decides a

4    question that is not clearly answered in New York caselaw,

5    but that we decline to certify.    The parties cite cases on

6    whether 205(a) tolling is available absent an express

7    finding on neglect to prosecute.    Compare Burns v. Pace

8    Univ., 809 N.Y.S.2d 3, 4, 25 A.D.3d 334, 335 (1st Dep’t

9    2006) (“we find that plaintiff was entitled to rely on the

10   tolling provision in CPLR 205 (a) since the action was not

11   dismissed for neglect to prosecute, even though there was

12   sufficient evidence in the record to support such a

13   dismissal”), with Andrea v. Arnone, 5 N.Y.3d 514, 520, 840

14   N.E.2d 565, 567 (N.Y. 2005) (“Our decisions make clear that

15   the ‘neglect to prosecute’ exception in CPLR 205 (a) applies

16   not only where the dismissal of the prior action is for

17   ‘[w]ant of prosecution’ . . . but whenever neglect to

18   prosecute is in fact the basis for dismissal . . . .”), and

19   Flans v. Fed. Ins. Co., 43 N.Y.2d 881, 882, 374 N.E.2d 365,

20   365 (N.Y. 1978) (concluding “inferentially” from the record

21   before it that the “dismissal of the original, timely action

22   was . . . for ‘neglect to prosecute’”).    These cases are



                                  12
1    distinguishable from the facts before us on one ground or

2    another: for example, Justice Johnson’s order does not say

3    whether “neglect to prosecute is in fact the basis for

4    dismissal.”     Even so, we might ordinarily certify the

5    question to the New York Court of Appeals.     There are good

6    reasons why we do not do so.     First, the state courts have

7    already thrown this case out, revived it, and then thrown it

8    out again.     They have expressed their desire to be rid of it

9    (twice) and it would be an imposition on the state’s highest

10   court for us to serve it up again.     Second, New York has

11   well-developed case law on the purpose and application of

12   CPLR 205(a) and its precursor statutes; that case law is

13   unambiguous and provides more than ample foundation for our

14   ruling.     Third, certification is not necessary where

15   precedent is clear and application of law to fact requires

16   no grand or novel pronouncements of New York law.     See,

17   e.g., Regatos v. N. Fork Bank, 5 N.Y.3d 395, 400, 838 N.E.2d

18   629, 631 (N.Y. 2005) (accepting certification when

19   disposition of the case involved “novel, important questions

20   of New York law”).     Finally, all the plaintiff has lost is a

21   claim in which he has shown no more than lackadaisical

22   interest.



                                     13
1                            CONCLUSION

2       For the foregoing reasons, the judgment and order of

3   the district court is affirmed and the case dismissed.




                                 14
