Opinion
No. 00 Civ. 2241 (PKC) (HBP).
December 9, 2004
MEMORANDUM OPINION AND ORDER
I. Introduction
By notice of motion dated April 29, 2004 (Docket Item 54), defendant moves for sanctions against plaintiff resulting from plaintiff's failure to comply with my March 11, 2004 Order. That Order directed plaintiff to provide responses to defendant's interrogatories and document requests and to provide all disclosures required by Fed.R.Civ.P. 26(a) (1) by March 25, 2004. Although I agree that the imposition of sanctions is appropriate, I conclude that the ultimate sanction of dismissal is premature at this time. Instead, I impose a sanction of $500, payable to the Clerk of the Court within thirty (30) days of the date of this Order and also direct that within thirty (30) days of the date of this Order, plaintiff pay to defendant the reasonable attorney's fees that defendant incurred in making this motion, which I fix at $1,500.00.
II. Facts
Plaintiff commenced this pro se employment discrimination action on or about March 24, 2000, alleging discrimination on the basis of age, race, national origin and disability. Plaintiff also alleged that he was the victim of illegal retaliation.
On April 22, 2002, after filing a motion to dismiss all claims other than the disability-discrimination claim, defendant served plaintiff with a Request for Production of Documents ("Request for Documents") and a Request for Answers to Interrogatories ("Interrogatories"). On that same date, defendant provided plaintiff with its initial disclosures pursuant to Rule 26(a) (1) of the Federal Rules of Civil Procedure (Certification of Colleen P. Tandy, Esq., dated April 28, 2004 ("Tandy Cert."), ¶ 5).
Despite the fact that defendant's counsel expressly notified plaintiff that his responses to defendant's Interrogatories and Request for Documents were due on May 27, 2002, plaintiff did not serve any response at that time (Tandy Cert. ¶¶ 6-7). Consequently, on June 7, 2002, defendant's counsel wrote to plaintiff and advised him that his discovery responses were overdue. Defendant's counsel requested that plaintiff produce these responses as soon as possible and advised plaintiff that if plaintiff's responses were not received by June 19, 2002, defendant would seek intervention from the Court (Tandy Cert. ¶ 7 and Exhibit D, thereto). Plaintiff did not respond to counsel's letter, nor did he respond to the Interrogatories and Request for Documents (Tandy Cert. ¶ 8).
Defendant's counsel wrote to me on July 18, 2002 to advise me of plaintiff's discovery default (Tandy Cert. ¶ 10 and Exhibit F thereto). In view of the then-pending motion to dismiss, I stayed all discovery pending resolution of the dispositive motion (see Order dated July 22, 2002, Docket Item 42). My Order further provided that if plaintiff's action survived the dismissal motion, time would be permitted for the parties to complete discovery.
On July 26, 2002, I issued a Report and Recommendation recommending the dismissal of all of plaintiff's claims other than his disability-based discrimination claim (Docket Item 41). My Report and Recommendation was adopted by the Honorable Lewis A. Kaplan, United States District Judge, to whom the matter was then assigned, on August 16, 2002 (Docket Item 43). Judge Kaplan's Order adopting my Report and Recommendation terminated the stay of discovery I had previously issued.
Defendant's counsel wrote to me on September 11, 2002 seeking a conference to consider plaintiff's failure to respond to defendant's Interrogatories and Request for Documents (Tandy Cert. ¶ 15). Accordingly, my staff attempted without success to contact plaintiff by telephone on several occasions in order to schedule a conference. When these attempts proved unsuccessful, my deputy wrote to plaintiff on November 19, 2002, stating:
I have attempted to contact you at (718) 432-4779 to schedule a conference to discuss various discovery issues raised by the defendant in this action. I have been unable to reach you and messages I have left have gone unreturned.
Mr. Eley, it is urgent that you contact me as soon as possible at the above telephone number to avoid the imposition of sanctions against you, which may include the court deeming your case abandoned and thus, the issuance of a Report Recommendation to Judge Kaplan recommending that your case be dismissed for failure to prosecute.
(Tandy Cert. ¶ 16 and Exhibit J thereto). Plaintiff took no action in response to my deputy's November 19, 2002 letter; he did not contact my Chambers nor did he respond to defendant's discovery requests (Tandy Cert. ¶ 17).
In early December 2002, plaintiff filed a motion with the United States Court of Appeals for the Second Circuit seeking, among other things, to appeal from Judge Kaplan's August 16, 2002 Order and to disqualify Judge Kaplan and myself. Plaintiff claimed in his motion that "Pitman and Kaplan are incompetent judges who are ignorant to the facts in this case" (Exhibit K to Tandy Cert.). Plaintiff also accused Judge Kaplan and myself of conspiring with defense counsel to deny him equal protection and due process, violating his civil rights, and violating the United States Constitution.
The Court of Appeals dismissed plaintiff's appeal sua sponte on February 7, 2003 (Tandy Cert. ¶ 19).
The matter was reassigned to the Honorable P. Kevin Castel, United States District Judge, on November 6, 2003 (Docket Item 49). On November 12, 2003, I issued an Order regarding the pretrial submissions, which had been due some ten months earlier. My November 12, 2003 Order stated:
Despite the fact that I previously issued a scheduling order in this matter directing that the pretrial order, and all other pretrial submissions . . . be filed by January 6, 2003, these documents have not yet been filed.
I shall give plaintiff one final opportunity to file these documents. Plaintiff is directed to file the pretrial order, and all other submissions . . . no later than December 12, 2003. Plaintiff shall serve a draft of his portion of the pretrial order on counsel for defendant no later than fifteen (15) days prior to the pretrial order's due date.
Plaintiff is warned that an unjustified failure to file the pretrial order by December 12, 2003 will result in the issuance of a report and recommendation recommending that this matter be dismissed for failure to prosecute.
(Ex. L to Tandy Cert.).
In January 2004, plaintiff filed a motion to extend his time for filing his pretrial submissions. In that motion, plaintiff:
(a) Questioned the fairness of his having to make pretrial submissions within the time established by the Court.
(b) Claimed that the Court and his deputy, Daniel Ortiz, conspired to write him a threatening letter (the November 19, 2002 letter).
(c) Accused Judge Kaplan and myself of defying an unidentified federal court order for 9 months; and
(d) Asserted that he "filed these charges to get justice but all [he] got was judges who break the law, fixed this case, lie, and allow defendants to break the law."
(Ex. M to Tandy Cert.).
On February 5, 2004, Your Honor referred plaintiff's motion for an enlargement of time to me and denied plaintiff's application to disqualify me (Ex. O to Tandy Cert.). On February 20, 2004, my deputy sent both sides a letter scheduling a status conference for March 11, 2004 (Tandy Cert. ¶ 27 and Ex. P thereto).
Plaintiff faxed me a letter on March 9, 2004 stating that he would not be attending the conference. Among other things, this letter stated:
Pitman know[s] the status of this case! Why do[es he] need a conference?
. . . .
While deeming my case abandon[ed] Pitman ignored a mandated order by the high court for 9 months. By ignoring this high court order, clearly shows Pitman has no respect for the court of law and he is above the law.
. . . .
I believe Pitman is bias and prejudice against me. Because of his prejudice, he has failed to appoint counsel in this case, which allowed him to take advantage of me.
. . . .
I will be calling for a criminal and civil rights violation investigation in this case, because I believe Pitman is incompetent and unfit to hold office. One day he is going to be found out for his unethical behav[ior].
Remember, the word "anyone" in civil rights and criminal statues [sic] include federal judges who are more guilty than an ordinary citizens when that judge violates a sacred trust to uphold and protect the laws and Constitution of the United States and then misuses the judicial offices and court to subvert these protections.
(Ex. Q to Tandy Cert.).
The conference took place as scheduled on March 11, 2004; it was attended only by counsel for defendant. After hearing from counsel, I issued an Order that provided:
A status conference in this matter was scheduled for March 11, 2004. Although notice was sent to both sides, only counsel for defendant appeared. Prior to the conference, plaintiff had advised me that he did not intend to appear at the conference. Obviously, no litigant, either plaintiff or defendant, can unilaterally cancel a conference or other proceeding scheduled by the Court.
Since plaintiff was provided with notice of the conference, but declined to appear, the conference proceeded in his absence. For the reasons stated on the record during the course of the conference, and in an effort to insure that every reasonable step is taken to adjudicate this matter on the merits and not on the basis of a procedural default, it is hereby ORDERED that:
1. No later than March 25, 2004, plaintiff is directed to respond to the interrogatories and document requests served by defendant in or about April, 2002. Since the time for filing objections to these discovery requests is long past, plaintiff must serve full and complete answers.
2. Plaintiff is to make all disclosures required by Rule 26 (a) (1) of the Federal Rules of Civil Procedure no later than March 25, 2004.
. . . .
Plaintiff is warned that an unjustified failure to comply with any of the deadlines or other requirements set herein may result in the imposition of sanctions which may include the dismissal of the single claim remaining in this action. (Ex. R to Tandy Cert.). A copy of this Order was mailed to plaintiff; it has not been returned as undeliverable.
Plaintiff did not comply with the March 11, 2004 Order. He has not responded to the Interrogatories and Request for Document served by defendant in 2002 and has failed to make his Rule 26 (a) (1) disclosures (Tandy Cert. ¶ 32). He has not explained his failure to make discovery to my Chambers, nor has he offered any response to defendant (Tandy Cert. ¶ 33).
Defendant served the pending motion on or about April 29, 2004 and filed it on May 17, 2004. Plaintiff did not timely file any opposition and, therefore, I issued an Order on June 21, 2004 which provided, in pertinent part:
In order to avoid resolving [defendant's] motion by default, plaintiff is granted until June 30, 2004 to respond to the motion filed by defendants on May 20, 2004. Unless plaintiff responds to the motion by June 30, 2004 or seeks a further extension of time by June 30, 2004, I shall consider the motion fully submitted on that date and ripe for decision.
(Docket Item 56).
Plaintiff did not respond to my June 21, 2004 Order in any way.
I issued a second Order on October 1, 2004 which provided:
Defendant has moved to dismiss the complaint in this matter pursuant to Fed.R.Civ.P. 37 as a sanction for plaintiff's alleged failure to comply with discovery orders. Despite the fact that defendant's motion was filed on May 20, 2004, plaintiff has still not served any opposition.
In light of plaintiff's pro se status and in an effort to maximize the likelihood that the pending motion will be resolved on the merits, I shall give plaintiff a final opportunity to submit opposition. Plaintiff's time to respond to the pending motion to dismiss is extended to November 1, 2004. IF PLAINTIFF DOES NOT SERVE AND FILE HIS OPPOSITION TO THE PENDING MOTION ON OR BEFORE NOVEMBER 1, 2004, I SHALL TREAT THE MOTION AS FULLY SUBMITTED AT THAT TIME AND GRANT THE MOTION ON DEFAULT.
(Docket Item 58 (bold in original)).
Plaintiff has not responded to my October 1, 2004 Order in any way.
III. Analysis
Although I believe that a sanction is appropriate, I decline to impose the ultimate sanction of a default judgment sought by defendant. As noted by the Honorable David N. Hurd, then Magistrate Judge, now United States District Judge, in Fritter v. Dafina, Inc., 176 F.R.D. 60, 63 (N.D.N.Y. 1997):
The Court may render a default judgment against a party who has failed to fully comply with a discovery order of the court. Fed.R.Civ.P. 37(b) (2) (C). Such a sanction is an extreme measure appropriate only in extreme circumstances. See Bambu Sales Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995); Woodstock Ventures LC v. Perry, 164 F.R.D. 321, 322 (N.D.N.Y. 1996) (citing Jones v. Niagara Frontier Transp. Auth., 836 F.2d 731, 734 (2d Cir. 1987)). Consequently, the Second Circuit limits default judgments to circumstances "involving willfulness, bad faith, or any fault on the part of the disobedient party." Altschuler v. Samsonite Corp., 109 F.R.D. 353, 356 (E.D.N.Y. 1986) (citing Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095-96, 2 L.Ed.2d 1255 (1958)); see Jones, 836 F.2d at 734. In addition, though, the Second Circuit has held default judgment appropriate where there has been a total dereliction of professional responsibility, evincing circumstances of gross negligence. Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1065-66 (2d Cir. 1979).See also Nat'l Communications Ass'n v. Am. Tel. Tel. Co., 92 Civ. 1735 (LAP), 1998 WL 118174 at *3 (S.D.N.Y. Mar. 16, 1998); Sullivan v. City of New York, 94 Civ. 1643 (FB), 1997 WL 642321 at *2 (E.D.N.Y. Sept. 3, 1997); Jeanette Coquette Co. v. Hartford Fire Ins. Co., 93 Civ. 4417 (DAB), 1997 WL 527874 at *1-*2 (S.D.N.Y. Aug. 22, 1997); Edwards v. Am. Airlines, Inc., 95 Civ. 5356 (SAS), 1996 WL 432472 at *2-*3 (S.D.N.Y. Aug. 1, 1996); Starbrite Waterproofing Co. v. AIM Const. Contracting Corp., 164 F.R.D. 378, 381-82 (S.D.N.Y. 1996).
Courts have considered five factors in assessing whether dismissal is appropriate as a sanction for a party's failure to comply with a discovery order: "the duration of the plaintiff's failures, whether plaintiff has received notice of the potential sanctions, the prejudice to the defendant arising from the plaintiff's actions, due process considerations, and the efficacy of lesser sanctions." 2 Michael C. Silberberg Edward M. Spiro,Civil Practice in the Southern District of New York § 26.11 at 26-34 (2d ed. 2002). See also Spencer v. Doe, 139 F.3d 107, 113 (2d Cir. 1998) (articulating the fourth factor as requiring a "balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard"); see generally Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 852-53 (2d Cir. 1995)
In this case, almost all the factors weigh against plaintiff. First, plaintiff is more than two years in default in responding to the discovery requests, and has been in violation of my March 11, 2004 Order for more than eight months. Since plaintiff is proceeding pro se, plaintiff himself is responsible for the default. Second, my March 11, 2004 Order provided clear and unequivocal warning that dismissal was a possible sanction. Third, defendant has suffered substantial prejudice because it has received no discovery from plaintiff concerning plaintiff's disability-discrimination claim. And, fourth, despite the fact that plaintiff has been given two extensions of time to respond to the pending motion and explain why dismissal is inappropriate, he has failed to make any response.
The single factor that weighs against dismissal is the efficacy of lesser sanctions. This is defendant's first motion for discovery sanctions, and the efficacy of lesser sanctions is therefore unknown. Although plaintiff's record in this case gives little cause for hope, I am reluctant to impose the most drastic sanction without first attempting to bring about compliance through a lesser sanction. As the Court of Appeals has repeatedly noted, dismissal for failure to comply with a court order "is a harsh remedy and is appropriate only in extreme situations. . . . [D]istrict courts should be especially hesitant to dismiss for procedural deficiencies where, as here, the failure is by a pro se litigant." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).See also Spencer v. Doe, supra, 139 F.3d at 112; Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995); Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Solomon v. Beachlane Mgmt., 03 Civ. 5688 (DLC), 2004 WL 2403950 at *1-*2 (S.D.N.Y. Oct. 26, 2004). Thus, I conclude that a monetary sanction is more appropriate at this time. However, plaintiff must be aware that a continued unjustified failure to comply with the Court's Orders and/or plaintiff's discovery obligations will result in the dismissal of his sole remaining claim.
IV. Conclusion
Within thirty (30) days of the date of this Order, plaintiff is directed to (1) pay the sum of $500 to the Clerk of the Court as a sanction for his failure to comply with my prior Order; (2) produce to defendant all disclosures required by Fed.R.Civ.P. 26(a)(1); and (3) respond fully to defendants' outstanding Interrogatories and Request for Documents; since the time for asserting objections has long since passed, no objections these discovery requests may be asserted.
In addition, since no mitigating factors are present here, defendant is entitled to the reasonable attorney's fees it incurred in making the present motion. Fed.R.Civ.P. 37(a) (4) (A). I fix these fees at $1,500.00 and also order plaintiff to pay this sum to defendant within thirty (30) days of the date of this Order.
Plaintiff is warned that this is the last time I shall afford him the opportunity to comply with his discovery obligations. If plaintiff fails to comply with this Order without justification, I shall issue a Report and Recommendation recommending the dismissal of this action.
SO ORDERED.