Marquez v. Hoffman

Full title: ALEXIS MARQUEZ, Plaintiff, v. DOUGLAS HOFFMAN, et al., Defendants.

Court: United States District Court, S.D. New York

Date published: Sep 6, 2022

18 Civ. 7315 (ALC) (GWG) (S.D.N.Y. Sep. 6, 2022)

Opinion

18 Civ. 7315 (ALC) (GWG)

09-06-2022

ALEXIS MARQUEZ, Plaintiff, v. DOUGLAS HOFFMAN, et al., Defendants.

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

AMENDED REPORT AND RECOMENDATION ¹

1 This Amended Report and Recommendation replaces the Report and Recommendation filed on August 26, 2022 (Docket #426), which is hereby vacated. The time for objections will run from the date of the filing of this Report and Recommendation.

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Alexis Marquez, an attorney who is now representing herself, brought this action alleging violations of 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law. Before the Court is defendants' motion for sanctions because of plaintiff's repeated violations of court orders.² For the following reasons, defendants' motion should be granted and the case should be dismissed. 1

2 See Defendants' Motion for Sanctions, filed Apr. 13, 2022 (Docket # 385); Memorandum of Law in Support of Motion for Sanctions, filed Apr. 13, 2022 (Docket # 386) (“Def. Mem.”); Declaration of Anjali Bhat, filed Apr. 13, 2022 (Docket # 387) (“Bhat Decl.”); Memorandum of Law in Opposition to Motion for Sanctions, filed May 20, 2022 (Docket # 402) (“Pl. Mem.”); Declaration of Alexis Marquez, filed May 23, 2022 (Docket # 405); Reply Memorandum in Support of Motion for Sanctions, filed June 3, 2022 (Docket # 409); Letter from Alexis Marquez, filed June 13, 2022 (Docket # 412) (“Pl. Ltr.”); Letter from Anjali Bhat, filed June 16, 2022 (Docket # 413); Plaintiff's Surreply Memorandum of Law in Opposition to Motion for Sanctions, filed July 13, 2022 (Docket # 418) (“Pl. Supp. Mem.”); Letter from Anjali Bhat, filed Aug. 9, 2022 (Docket # 420); Plaintiff's Supplemental Memorandum of Law In Opposition to the Defendants' Motion for Sanctions, filed Aug. 17, 2022 (Docket # 422); Letter from Anjali Bhat, filed Aug. 24, 2022 (Docket # 423); Supplemental Reply Memorandum of Law, filed Aug. 25, 2022 (Docket # 425). .

I. BACKGROUND

On August 13, 2018, represented at that time by counsel, Marquez initiated this action against more than a dozen individuals, including every sitting judge on the New York Court of Appeals. See Complaint, filed Aug. 13, 2018 (Docket # 1). Marquez alleged discriminatory treatment, harassment, retaliation, and due process and equal protection violations in connection with her five-week employment as a principal court attorney for Acting Supreme Court Justice Douglas Hoffman of the New York Supreme Court. See id. Marquez amended her complaint several times. See, e.g., Second Amended Complaint, filed Apr. 22, 2019 (Docket # 72); Third Amended Complaint, filed May 21, 2019 (Docket # 86).

On August 12, 2019, at a time Marquez was still represented by her counsel, the Court held a conference at which it directed the parties to submit a joint discovery plan and participate in a conference pursuant to Fed.R.Civ.P. 26(f). See Transcript of August 12, 2019 Hearing, filed Aug. 15, 2019 (Docket # 136), at 24, 42, 47. In a harbinger of things to come, Marquez's counsel did not participate in the Fed.R.Civ.P. 26(f) conference with the defendants. See Proposed Rule 26(f) Plan, filed Aug. 28, 2019 (Docket # 144), at 1 (“Plaintiff's counsel did not participate and objects to this submission.”). Marquez's counsel did not suggest that he made any efforts to schedule a conference with the defendants; instead, he cited an inability to participate in order to address other deadlines in this matter. See Letter from Anthony Vassilev, filed Sept. 5, 2019 (Docket # 148), at 1-2.³ 2

3 Marquez's counsel was also her husband. See Transcript of November 5, 2019 Conference, filed Nov. 5, 2019, at 6.

On September 23, 2019, the Court issued an order under Fed.R.Civ.P. 16(b) regarding Marquez's claims against defendant Hoffman, setting various discovery deadlines and requiring the parties to comply with the Court's Individual Practices with regard to any discovery application and specifically noting that discovery applications had to comply with paragraph 2.A of those Individual Practices. See Order, dated Sept. 23, 2019 (Docket # 153) (“Sept. 23 Order”), ¶ 6. Marquez filed an objection under Fed.R.Civ.P. 72 to the Court's August 12, 2019 Order directing the parties to hold a Rule 26(f) conference, see Objection, filed Aug. 27, 2019 (Docket # 143), as well as to the Court's September 23, 2019 Rule 16(b) Order, see Objection, filed Oct. 7, 2019 (Docket # 162). The district court overruled Marquez's objections, noting that Marquez had not shown that the Court's discovery orders were “clearly erroneous” or “contrary to law.” See Memorandum and Order, dated Oct. 25, 2019 (Docket # 169) (“Oct. 25 Order”), at 1.

On November 1, 2019, Marquez's counsel filed a motion to withdraw (Docket # 170), which was within the Order of Reference to the undersigned. On November 13, 2019, Marquez's counsel filed a letter to the district judge in connection with this motion stating that he was “no longer in a position to respond to orders from the magistrate that do not reference a specific legal rule and do not contain any articulated reasoning.” Letter from Anthony Vassilev, filed Nov. 13, 2019 (Docket # 184), at 2. In response, the Court issued an order noting Marquez's counsel's intention “not to ‘respond to orders' that do not conform to her views as to what should be included in the orders,” and advising Marquez that “this is not a proper ground for failing to comply with a court order.” Order, dated Nov. 13, 2019 (Docket # 185). The Order stated that if Marquez “fails to comply with court orders in the future, she may be subject to sanctions.” Id. 3

On November 22, 2019, Marquez filed a “Notice of Pro Se Appearance” (Docket # 196), and on November 26, 2019, the Court granted her attorney's application to withdraw, see Order, dated Nov. 26, 2019 (Docket # 198) (“Nov. 26 Order”). On the same date, defendant Hoffman filed a letter reporting that plaintiff had failed to meet a series of discovery deadlines and had not responded to emails regarding these deadlines. See Letter from Bettina B. Plevan, filed Nov. 26, 2019 (Docket # 197), at 1-2. The Court issued an order confirming that paragraph 2.A of its Individual Practices remained applicable despite Marquez's status as a pro se litigant, and that Marquez was still bound by that paragraph and the requirement that a party “respond within one business day to any request from another party to confer [about a discovery dispute] unless an emergency prevents such a response.” Nov. 26 Order at 1 (alteration in original).

On December 16, 2019, counsel for defendant Hoffman filed a letter reporting that Marquez had refused to participate in telephonic meet and confers (required by paragraph 2.A of the Court's Individual Practices) regarding the parties' disagreements over discovery, and insisted on only communicating via email. See Letter from Bettina B. Plevan, filed Dec. 16, 2019 (Docket # 199) (“Plevan Dec. 16 Ltr.”). The letter attached an exhibit that included emails from Marquez in which she stated that she was refusing to “litigate an entire employment discrimination lawsuit through impromptu phone calls” and would participate in a phone conference only if “disputed issues are developed and the parties disclose their positions, arguments, and any legal bases for those arguments.” See Emails, annexed as Ex. 1 to Plevan Dec. 16 Ltr., at 10. The emails showed that defendants had spent nearly three weeks attempting to schedule a telephone conference with Marquez. See id. at 1. After reviewing Marquez's response, see Letter from Alexis Marquez, filed Dec. 19, 2019 (Docket # 201), the Court issued an order denying Marquez's request “to be relieved from the Court's meet and confer 4 requirements.” Order, dated Dec. 20, 2019 (Docket # 202) (“Dec. 20, 2019 Order”), at 1. It noted that the email from defendant requesting a meet and confer with Marquez was “more than sufficient to justify a discussion among the parties.” Id. The Court added:

The extraordinary efforts made by plaintiff to resist conferring with defendants' counsel (as reflected in the emails and Docket # 201) have vastly increased the burden both on her and on defendants' counsel. It will be much easier if plaintiff simply does what all other litigants (including pro se litigants) in the Court's experience have done and are required to do: that is, to speak with opposing counsel when requested to do so. Thus, the Court orders that, in the future, plaintiff must comply with the Court's requirement (paragraph 2.A) that she “respond within one business day to any request from another party to confer unless an emergency prevents such a response” (emphasis added).

Id.

On January 3, 2020, defendant Hoffman filed a letter “with respect to Plaintiff's repeated failure to comply with” the Court's September 23, 2019 scheduling order, and relaying that, during a telephonic meet and confer, Marquez had stated that she would not respond to Hoffman's discovery requests “for an additional five months,” as she planned to prioritize a series of other litigation tasks. See Letter from Bettina B. Plevan, filed Jan. 3, 2020 (Docket # 208), at 1-2. Hoffman had served document requests and interrogatories on Marquez on October 21, 2019, and she failed to respond within the 30 days provided by Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A). Id. Marquez denied that she had “unilaterally decided to delay discovery,” but stated that she had “repeatedly communicated that I am unable to comply with the Court's scheduling orders.” Letter from Alexis Marquez, filed Jan. 13, 2020 (Docket # 219), at 2. The Court issued an order noting that Marquez had “not den[ied] that she has failed to comply with the applicable deadlines.” See Order, dated Jan. 17, 2020 (Docket # 220) (“Jan. 17 Order”), at 1. The Court explained that it had reviewed the email chain submitted by the parties and found that it did “not justify [Marquez's] failure to participate in the discovery process.” Id. at 2. Notwithstanding this noncompliance, and although the Court noted that “[i]n these 5 circumstances, the Court might find an order of sanctions to be appropriate,” the Court took account of Marquez's pro se status and opted to grant her an extension of time to comply with certain discovery deadlines that had passed. Id. The Court also warned that failure to comply with the extended deadlines could result in sanctions. Id. at 3.

On January 23, 2020, Marquez filed a letter stating again that she did “not have the litigation resources to devote to discovery on claims against Defendant Hoffman” - referring to claims against Hoffman that Marquez had sought to dismiss without prejudice. See Letter from Alexis Marquez, dated Jan. 23, 2020 (Docket # 223), at 1. Marquez stated that she was “unable to comply with” the Court's deadlines as extended in its January 17, 2020 Order. Id. Because she viewed it to be “futile to continue raising scheduling concerns to the Court,” she intended to “use her litigation resources to” respond to a motion to dismiss filed by the remaining defendants, rather than comply with her discovery obligations. Id. The Court issued an order stating that “[t]he Court would certainly grant a request for a reasonable extension of any one of its deadlines but no such proposal has been made by plaintiff in her letter or, indeed, has ever been made by plaintiff.” Order, dated Jan. 29, 2020 (Docket # 224). The Court rejected Marquez's apparent position that she should not ever “be required to simultaneously brief motions and engage in any aspect of the discovery process.” Id. The Court further denied Marquez's request for “full briefing” of any future discovery application, noting that the parties were free to request full briefing of a particular dispute if supported by specific reasons. Id. ⁴ 6

4 On February 13, 2020, the Court granted plaintiff's motion to dismiss her claims against defendant Douglas Hoffman without prejudice. See Memorandum and Order, dated Feb. 13, 2020 (Docket # 227).

On March 31, 2021, the district court granted defendants' pending motion to dismiss Marquez's claims with the exception of Marquez's retaliation claims against defendants Silver, Marks, McConnell, DeSole, and Evans. See Opinion & Order, dated Mar. 31, 2021 (Docket # 256), at 69. Following briefing on a motion for reconsideration of that decision, the Court on August 9, 2021 held a Rule 16 conference to set new discovery deadlines for Marquez's remaining claims. See Transcript of August 9, 2021 Conference, filed Dec. 22, 2021 (Docket # 334) (“Aug. 9 Tr.”). The parties had jointly submitted a Rule 26(f) report describing their positions on the timing of discovery deadlines. See Joint Rule 26(f) Report, filed Aug. 5, 2021 (Docket # 305). The parties held differing views about the appropriate length of discovery, with defendants suggesting that all discovery could be completed by February 28, 2022, see id. at 8, and Marquez seeking a fact discovery period of more than three years - with fact discovery to close on August 9, 2024 and expert discovery to conclude on December 9, 2024, see id. at 7-9.

At the August 9, 2021 conference, the Court heard Marquez's arguments in support of a lengthy discovery period, but ultimately set a discovery cutoff date of March 31, 2022. See Aug. 9 Tr. at 5, 8-10. The Court entered a scheduling order following the conference providing that:

All applications to the Court must comply with this Court's Individual Practices, which are available through the Clerk's Office or at: https://nysd.uscourts.gov/hon-gabriel-w-gorenstein. Discovery applications - that is, any application or motion pursuant to Rules 26 through 37 or 45 - not only must comply with ¶ 2.A. of the Court's Individual Practices but also must be made promptly after the cause for such an application arises. In addition, absent extraordinary circumstances no such application will be considered if made later than 30 days prior to the close of discovery. Untimely applications will be denied.

See Scheduling Order, dated Aug. 9, 2021 (Docket # 307) (“Aug. 9 Order”), ¶ 6.

For all relevant times during discovery in this matter, paragraph 2.A of the Court's Individual Practices provided, in relevant part: 7

Discovery Motions. No application relating to discovery (that is, any dispute arising under Rules 26 through 37 or Rule 45 of the Federal Rules of Civil Procedure) shall be heard unless the moving party has first conferred in good faith by telephone or in person with all other relevant parties in an effort to resolve the dispute. A party must respond within one business day to any request from another party to confer unless an emergency prevents such a response. If the conference with the relevant parties has not resolved the dispute, the moving party must confirm this fact and must inform the opposing party during the conference that as a result of the impasse the moving party intends to seek relief from the Court regarding the dispute. The moving party must thereafter promptly request a conference with the Court. See Local Civil Rule 37.2. To request a conference with the Court, the moving party shall submit a letter (normally not more than five pages) setting forth the basis of the dispute and the need for the anticipated motion. (Do not use the “Letter Motion” category on ECF for such a letter; use instead the “Letter” category.) The letter must certify that the required in-person or telephonic conference took place between the relevant parties. The letter must also state (1) the date and time of such conference, (2) the approximate duration of the conference, (3) the names of the attorneys who participated, (4) the adversary's position as to each issue being raised (as stated by the adversary during the in-person or telephonic conference), and (5) that the moving party informed the adversary during the conference that the moving party believed the parties to be at an impasse and that the moving party would be requesting a conference with the Court. None of these requirements may be satisfied by attaching copies of communications between the parties and it is usually unhelpful to attach such communications. The party opposing the requested relief must submit a letter to the Court in response as soon as practicable and in any event within two business days, unless the parties agree otherwise (and the Court is informed of the agreed response date by letter) or, if no agreement can be reached, an extension of time is sought and granted in accordance with paragraph 1.E above.

In most instances, the letters will fully describe the parties' discovery dispute. Accordingly, if a party believes that the issue must be decided based on formal briefing, the party must so state in a separate letter application and shall give the reasons therefor. In the absence of such an application, the Court may decide the dispute based solely on the letters and without holding a conference.

See Individual Practices of Magistrate Judge Gabriel W. Gorenstein, annexed as Ex. S to Bhat Decl. (“Individual Practices”), at 2-3. Thus, while the Court's Individual Practices require the parties to engage in a telephonic (or in-person) conference in an attempt to resolve the dispute, followed if necessary by the filing of a letter (without page limitations), they give parties the 8 option to request formal briefing as long as they make the request in a letter separate from the letter required by paragraph 2.A.

Following the issuance of the August 9, 2021 Scheduling Order, Marquez continued to refuse to abide by paragraph 2.A of the Court's Individual Practices. The Court's Scheduling Order provided that “[a]ll requests for documents and interrogatories pursuant to Local Civil Rule 33.3(a) shall be served by September 9, 2021.” Aug. 9 Order ¶ 1. Plaintiff filed a letter on August 31, 2021 requesting an extension of this deadline to October 7, 2021. See Letter from Alexis Marquez, dated Aug. 31, 2021 (Docket # 308). The Court noted that the application lacked good cause, as “[t]he preparation of discovery requests is not a complicated task,” but granted the extension nonetheless. See Order, dated Sept. 2, 2021 (Docket # 309). Despite receiving the requested extension, on September 14, 2021, Marquez filed a letter with the Court stating that “it is clear that I am unable to meet the magistrate's scheduling expectations in this case.” Letter from Alexis Marquez, filed Sept. 14, 2021 (Docket # 311) (“Sept. 14 Ltr.”), at 1. Marquez asked the Court to set a briefing schedule so that she could file a “formal motion” that conveyed her grievances with the Court's handling of the procedural and scheduling aspects of the case. Id. at 1-2. The Court denied this request, noting that setting a briefing schedule to address Rule 16 deadlines would be inconsistent with the Court's obligation to secure a “just, speedy, and inexpensive” adjudication of the matter pursuant to Fed.R.Civ.P. 1. See Order, dated Sept. 15, 2021 (Docket # 312), at 3. The Court noted that Marquez remained free to seek extension of any discovery deadlines, so long as she followed the procedures set forth in the Court's Individual Practices and demonstrated “good cause” under Fed.R.Civ.P. 6(b). Id.

On September 9, 2021, defendants served discovery requests on Marquez. See Email Chain, dated October 9, 2021 to October 14, 2021, annexed as Ex. A to Bhat Decl. (“Oct. 9 Emails”), at 1. Marquez did not respond within the 30 days required by Fed.R.Civ.P. 34(b)(2)(A), nor did she seek an extension of time to do so. See id. at 1-2. Marquez stated that as of October 9, 2021 she had not even reviewed the requests. See id. at 2. In fact, as of the briefing of this motion, Marquez has never produced any discovery to defendants. See, e.g., Letter from Alexis Marquez, dated Mar. 11, 2022 (Docket # 369) (“Mar. 11 Ltr.”), at 1 (“I have not had an opportunity to produce documents”); Def. Mem. at 5-6.

Thereafter, Marquez made clear both in emails to opposing counsel and in public filings that she is unwilling to follow the Court's Individual Practices. As early as November 22, 2021, Marquez flatly stated in an email to defendants' counsel that:

In connection with this discovery dispute (and likely other disputes moving forward), I will not be following Local Rule 37.2 or Section 2A of Magistrate Gorenstein's Individual Practices. Magistrate Gorenstein's interpretation and application of the rules governing motion practice, and the defendants' abuse of these rules, has made it necessary for me to take this position. I do not object if you wish to inform the Court and seek any relief you deem appropriate. I do not intend to discuss this further outside of court filings and intend to litigate this issue at the Circuit level if necessary.

See Email from Alexis Marquez, dated Nov. 22, 2021, annexed as Ex. I to Bhat Decl. (“Nov. 22 Email”), at 1 (emphasis added).

Marquez reiterated her unwillingness to follow the Court's Individual Practices in other emails to defendants' counsel. See Email from Alexis Marquez, dated Dec. 2, 2021, annexed as Ex. J to Bhat Decl., at 2 (reiterating her unwillingness to confer with defendants' counsel telephonically and referring to her previous email); Email from Alexis Marquez, dated Dec. 10, 2021, annexed as Ex. K to Bhat Decl. (“Dec. 10 Email”), at 2 (“If it is not abundantly clear to a SDNY district court how these procedural rules are being abused, then this will need to be addressed at the Circuit level. I am no longer able to follow Section 2A of Magistrate Gorenstein's rules.”). 10

On December 10, 2021, the defendants raised a discovery dispute regarding the format of their electronic document production. Letter from Anjali Bhat, filed Dec. 10, 2021 (Docket # 324). This letter disclosed that plaintiff had failed to engage in any meet and confers notwithstanding repeated requests by the defendants that she do so. Id. at 1, 5. Plaintiff did not respond to this letter within two business days as required by the Court's Individual Practices. On December 16, 2021, the Court ordered Marquez to contact defendants' counsel by December 20, 2021, and reminded Marquez that compliance with the meet and confer requirement set forth in the Court's Individual Practices “is mandatory.” Order, dated Dec. 16, 2021 (Docket # 326) (“Dec. 16 Order”), at 1. The Court also warned Marquez that “fail[ure] to comply with this Order or with any future Court order” could “result in the Court issuing sanctions that could include denying discovery to plaintiff and/or dismissal of the complaint.” Id.

In response to the Court's December 16 Order, Marquez filed a letter “to update the Court on the status of this case” and to address what she termed the “procedural posture” of the defendants' discovery application, arguing that the Court's use of its Individual Practices for resolving discovery disputes had “caused tremendous prejudice to [her] case.” Letter from Alexis Marquez, dated Dec. 16, 2021 (Docket # 327) (“Dec. 16 Ltr.”), at 1. Marquez argued that the Court's Individual Practices denied her “both an opportunity for formal briefing and a judicial decision applying legal standards.” Id. at 2. Marquez stated (once again) that she was “unable to comply with Section 2A of the Magistrate's individual rules moving forward” and that the Court's Individual Practices were “inconsistent with the Federal Rules of Civil Procedure, Second Circuit precedent, procedural due process, and the basic Article III function of the Court.” Id. Marquez further stated that if the Court resolved the discovery dispute in a manner that was not in her favor, she would “seek mandamus relief from the Second Circuit on 11 the grounds that I am unable to litigate this case under the procedures adopted by the Court.” Id. Marquez then stated her intention to dedicate her time and efforts to working on her litigation in state court, and that for “approximately two weeks” she would “not be able to work on the federal case.” Id. at 3. Marquez reported that she would then file “a detailed motion” to extend the March 31, 2022 discovery deadline in this case, and that she would need “two to four weeks” to draft motion briefs for each of the discovery disputes in this matter. Id. at 3-4.

The Court issued an order addressing Marquez's December 16, 2021 letter on December 20, 2021. See Order, dated Dec. 20, 2021 (Docket # 331) (“Dec. 20 Order”). The Court noted that Marquez's objections were effectively directed at the Court's August 9, 2021 Scheduling Order, which incorporated by reference the Court's Individual Practices, and that any motion to reconsider that order would be untimely. See id. at 1. The Court held that Marquez's requests in the December 16, 2021 letter were “inconsistent with the admonition in Rule 1 of the Federal Rules of Civil Procedure to secure the ‘just, speedy, and inexpensive determination of every action and proceeding.'” Id. The Court again ordered Marquez to confer with defendants' counsel - this time by December 31, 2021 - and warned that “failure to comply with any order of the Court, including this Order, may result in the Court issuing sanctions that could include denying discovery to plaintiff and/or dismissal of the complaint.” Id. That same day, Marquez sent an email to defendants' counsel again reiterating that her “position on Section 2A of Magistrate Gorenstein's rules has not changed” and that she would not agree to confer telephonically. See Email from Alexis Marquez, dated Dec. 20, 2021, annexed as Ex. L to Bhat Decl. (“Dec. 20 Email”).⁵Marquez stated her refusal to confer telephonically, see id. (“until the 12 defendants show that they can meet and confer in good faith, all meet and confers required by the FRCP will occur on the record”), though she asserted at the same time that she had “been attempting to confer with [defendants' counsel] about the format of production since July,” id.

5 While it is not clear from the record whether Marquez was aware of the Court's December 20, 2021 Order when she sent this email to defendants' counsel, the Court had already ordered that the conference take place in its December 16 Order.

On December 22, 2021, Marquez filed a letter in response to the Court's December 20, 2021 Order, again insisting that she was unable to litigate this case in a manner compliant with the Court's Individual Practices. See Letter from Alexis Marquez, filed Dec. 22, 2021 (Docket # 333) (“Dec. 22 Ltr.”), at 1. Marquez stated that she would require two weeks to address matters in her New York state case and that afterwards she would require “two to four weeks” to file a motion challenging the legality of paragraph 2.A of the Court's Individual Practices. Id. She said that if her challenge to paragraph 2.A were unsuccessful, she would appeal the unfavorable ruling, and stated that her case would “effectively be over” if such an appeal was unsuccessful at the level of the Second Circuit. Id. at 1. Marquez also asked the Court to permit briefing on the discovery dispute related to the format of defendants' electronic document production, rather than resolving the dispute based on letters. Id. at 2. Thus, Marquez again violated a court order by not conferring with the defendants as required by the Court's December 20 Order.

The Court denied Marquez's request for what amounted to four to six weeks to file a motion challenging paragraph 2.A, finding that the request was “unreasonable.” Order, dated Dec. 23, 2021 (Docket # 336) (“Dec. 23 Order”), at 2. It also reminded plaintiff that “litigants must comply with court orders even if they believe them to be unlawful.” Id. (citing Maness v. Meyers, 419 U.S. 449, 458 (1975) (“[A]ll orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending 13 appeal.”)). The Court reiterated that Marquez faced sanctions for failure to comply with court orders, as “absent compliance with court orders, the plaintiff's litigation of this case cannot continue.” Id. The Court also extended sua sponte the time for Marquez to confer with defendants' counsel, and stated that it would issue an Order to Show Cause why plaintiff should not be sanctioned if she did not comply. Id. This Order had a temporary salutary effect on Marquez inasmuch as Marquez participated in a telephonic conference on the electronic discovery format dispute on January 5, 2022. See Bhat Decl. ¶ 16.

On January 12, 2022, the Court issued an order stating that “[i]n light of the passage of time since the Court issued its order of December 23, 2021, the Court assumes that plaintiff has complied with that Order and that the dispute raised in Docket # 324 is moot, at least in the form raised in that letter.” Order, dated Jan. 12, 2022 (Docket # 339). The Court directed that “[a]ny further dispute as [to] that discovery request or any other discovery request may be presented in a new letter that complies with paragraph 2.A of the Court's Individual Practices.” Id.

On January 24, 2022, defendants filed a letter reporting that the parties were again at an impasse regarding their discovery dispute over the format of defendants' electronic document production and requesting a protective order permitting defendants to produce documents in a specified format. See Letter from Anjali Bhat, filed Jan. 24, 2022 (Docket # 340), at 1. The defendants reported that, notwithstanding the Court's January 12 Order, Marquez had again refused to participate in a meet and confer. See id.; see also Bhat Decl. ¶ 16; Email from Alexis Marquez, dated Jan. 19, 2022, annexed to Bhat Decl. as Ex. M (“Jan. 19 Email”). Marquez filed a letter in response asking the Court to set a briefing schedule on the dispute, as she could not respond fully within the two days required by the Court's Individual Practices. See Letter from Alexis Marquez, filed Jan. 27, 2022 (Docket # 342), at 1. Marquez also characterized “[t]he 14 parties' ongoing disputes over the meet and confer process” as “substantive,” and stated that the Court should address them “pursuant to relevant legal standards and legal authority under Rules 26(f) and 26(c).” Id. at 2.

The Court issued an order deeming defendants' letter to constitute a motion and granting Marquez's request to file a memorandum of law and affidavits rather than a letter in response. See Order, dated Jan. 28, 2022 (Docket # 343), at 3.⁶ The Court permitted Marquez one week to file her opposition, id., the time period contemplated by Local Civil Rule 6.1(a). Marquez filed a letter in response on February 1, 2022, seeking two weeks to file an opposition and stating that she was unable to respond to defendants' position on the format of document production unless defendants also filed a formal motion. See First Letter from Alexis Marquez, dated Feb. 1, 2022 (Docket # 344), at 1. Marquez reiterated her complaints that she was unable to comply with the Court's Individual Practices. Id. at 1-2. Marquez stated that she was “no longer able to respond to filings made pursuant to Section 2A of the Magistrate's Individual Rules and Practices,” as she was “exhausted.” Id. at 2. The same day, Marquez filed a second letter reporting that she would be spending “the next two to four weeks . . . working on preparing and submitting a motion (1) for an extension to the discovery deadline, and (2) for a very basic case management plan” - even though the Court had issued a case management plan months earlier in its August 9, 2021 Scheduling Order (Docket # 307). See Second Letter from Alexis Marquez, dated Feb. 1, 2022 (Docket # 345) (“Feb. 1 Ltr.”), at 1. Marquez announced that she would “be prioritizing this work over other discovery disputes that may arise in the meantime,” other than the dispute regarding document format. Id. Marquez stated that she needed to prioritize her discovery 15 extension motion over all other issues in this case, as she would not be able to complete discovery by the March 31, 2022 deadline. Id.

6 Paragraph 2.A does not require briefing by letter as long as a party explains why formal briefing should be required. It does, however, always require an effort to meet and confer telephonically or in person before the dispute is raised with the Court. Id.

The Court granted Marquez an additional week to file her opposition to the defendants' letter motion on document format, but otherwise denied Marquez's requests for relief in her first February 1, 2022 letter. See Order, dated Feb. 2, 2022 (Docket # 346) (“Feb. 2 Order”), at 3. As to Marquez's second February 1, 2022 letter, the Court stated that “plaintiff should spend the next ‘two to four weeks' advancing discovery in this matter, not preparing a motion about extending deadlines or otherwise adjusting the case management plan.” Id. The Court further explained that any application filed by Marquez regarding the discovery deadline or the case management plan should comply with paragraph 2.A of the Court's Individual Practices. Id. Up to that point (and afterwards), Marquez had never simply made an extension request in compliance with the Court's Individual Practices. Her ostensible reason for not doing so was that she wanted to make a formal motion because she “expect[ed] the request to be denied” and wanted to “fully preserve this issue for the record on appeal.” Feb. 1 Ltr. at 1.

On February 4, 2022, Marquez filed a letter with the Court, which she characterized as part of a continuing series of letters that provided an “update on the status of this case,” reporting that she would not be performing any work on discovery, and would not be meeting and conferring with defendants, until she completed (1) a formal response to defendants' January 24, 2022 letter and (2) a request for an extension of the discovery deadline. See Letter from Alexis Marquez, dated Feb. 4, 2022 (Docket # 347) (“Feb. 4 Ltr.”). She had previously stated that it would take “two to four weeks” to file such a motion. Feb. 1 Ltr. at 1. The letter did not actually seek any Court action.

The Court issued an order stating: 16

It is unclear what the purpose of this letter is. Parties should not be reporting on the status of the case unless the party is seeking relief from the Court (or the Court has sought a report on status.) To the extent the purpose of this letter is to seek permission to stop pursuing discovery to prepare a motion about deadlines or to address a discovery dispute, that request is denied. First, any plan to make a motion to extend discovery . . . is not a basis for failing to comply with any obligation to respond to discovery requests or an excuse for failing to pursue discovery by the Court ordered deadline. Second, parties are expected both to respond to filings on discovery disputes (on a prompt basis) and also to participate in discovery. Plaintiff should not assume that the discovery deadline will be extended.

See Order, dated Feb. 7, 2022 (Docket # 348), at 2.

On February 15, 2022, the Court granted Marquez's request for additional time to file her opposition to the defendants' letter on the format of their electronic document production, while noting that Marquez's letter had not complied with the Court's Individual Practices. See Order, dated Feb. 15, 2022 (Docket # 350).

On February 22, 2022, Marquez filed a letter labeled “Case Status” (even though she had been instructed not to do this), again stating that she was preparing a formal motion to extend the discovery deadline, that she would not address the discovery deadline in “informal letters,” and reiterating that she would not be producing documents, responding to discovery disputes, or meeting and conferring with defendants until she had completed that motion. See Letter from Alexis Marquez, filed Feb. 22, 2022 (Docket # 354), at 1. Marquez reported that it was “impossible for discovery to be completed” on time, as she had “not had an opportunity to produce documents in this case.” Id. Marquez again stated that she expected her motion would be denied, and so she needed to prepare a formal motion “to develop the record and preserve this issue for appeal.” Id. Marquez expressed frustration with what she construed as the Court's failure to read and comprehend her letters. Id. at 1-2. Marquez labeled any efforts to advance discovery unrelated to her planned formal motion to extend the discovery deadline as “an 17 enormous waste of party time and resources.” Id. at 3. She also complained about the Court's requirements for presenting extension requests and discovery disputes. Id. at 2-3.

While the Court obviously would have accepted an application to extend the discovery deadline in a letter, Marquez's letter did not state the other side's position as required by paragraph 1.E of the Court's Individual Practices or indicate that a conference had taken place with the other side (as required by paragraph 2.A of the Court's Individual Practices where the parties do not agree).⁷

7 Paragraph 1.E of the Court's Individual Practices provided as follows:

E. Requests for Extensions of Deadlines. Requests for extensions of deadlines must state (1) the date or dates sought to be extended, (2) the number of previous requests for extensions, (3) the reason for the extension, and (4) whether the adversary objects and, if so, the reasons given by the adversary for objecting. To the extent a request to extend a particular date requires a change in other scheduled dates, the request must list the proposed change for all such other dates, giving the new proposed date for each affected deadline. A request may be made either by letter or by a joint stipulation that reflects the required information. Note: to the extent a party's adversary objects to a request regarding a discovery deadline, the party must also comply with the conference requirements of paragraph 2.A below.

The Court then issued an order stating as follows:

While plaintiff is free to seek relief from the Court in the form of an application that conforms with the Court's Individual Practices, plaintiff is directed to stop providing “update[s]” on “status.” To the extent this letter is a request for an extension, it is denied for failure to comply with paragraph 1.E or 2.A of the Court's Individual Practices, which must be followed for any extension request. The request to file a “formal motion” is thus denied. The Court notes that a letter compliant with paragraph 2.A satisfies Fed.R.Civ.P. 7. It also satisfies Local Rule 7.1(d). (In any case, the Court is always free to waive compliance with a local rule.) No permission is required to file a letter compliant with paragraph 2.A or 1.E. Obviously, there is no stay of discovery obligations while the Court considers any extension request. And obviously, any extension request must show good cause.

18 See Order, dated Feb. 24, 2022 (Docket # 356) (“Feb. 24 Order”), at 4. Plaintiff did not thereafter file a letter seeking a discovery extension compliant with the Court's Individual Practices.

On March 8, 2022, the Court scheduled a discovery conference for March 14, 2022, on the parties' discovery dispute regarding the format of defendants' electronic document production. See Order, dated Mar. 8, 2022 (Docket # 365) (“Mar. 8 Order”). The conference was by telephone and ordered to parties to dial in to a particular number at the time and date of the conference. Id. On the same date, defendants filed a letter indicating that Marquez had refused to confer telephonically regarding discovery issues and refused to make herself available for a deposition. See Letter from Anjali Bhat, filed Mar. 8, 2022 (Docket # 366) (“Mar. 8 Ltr.”), at 1-2; see also Email from Alexis Marquez, dated Feb. 5, 2022, annexed to Bhat Decl. as Ex. O, at 2, 4 (stating that Marquez would not produce documents, or prepare for or attend, a deposition until she had completed briefing a motion to extend the discovery deadline); Email from Alexis Marquez, dated Feb. 22, 2022, annexed to Bhat Decl. as Ex. P, at 1 (refusing to confer telephonically to schedule a deposition prior to the discovery deadline). Defendants relayed that Marquez had further stated that she would not “(1) sit for a deposition, (2) participate in a telephone conference, or (3) respond to filings on this issue until her motion to extend the discovery deadline was complete.” Mar. 8 Ltr. at 2.

Marquez filed a letter on March 11, 2022, characterizing itself as, among other things, an “update on my activity.” See Mar. 11 Ltr. at 1. In that letter, Marquez continued to refuse to follow the Court's requirements for seeking an extension (a letter compliant with paragraph 1.E or 2.A of its Individual Practices) but asserted instead that she was “currently writing a motion” to extend the discovery deadline. Id. Additionally, she stated that because of her need to 19 respond to other filings in the case, “for nearly three months now, [she had] not had an opportunity to work on a motion to extend the discovery deadline.” Id. Marquez stated that she would work on such a motion “despite any order by the Court interfering with [her] ability to do so.” Id. at 2.

Marquez also stated that until she filed the motion she would be “unable to address other tasks in this litigation,” including “responding to motions or requests to meet and confer by parties and nonparties” or “attending conferences with the Court.” Id. at 1. She also stated that she would not be able to “meet any other deadlines or appearances set by the Court until [her] motion [was] submitted.” Id. at 2.

She specifically stated that she would not appear for the March 14 conference, which had been ordered (see Mar. 8 Order) for the purpose of resolving the discovery dispute over the format of the electronically produced documents. Id. at 2, 4. Marquez recognized that the Court had “repeatedly suggested” that it might “issue sanctions, including dismissal of the case.” Id. at 2. She also asked that the Court not “allude” to potential sanctions in the future in light of her request for formal briefing. Id. The letter made various other complaints about the discovery process, including an assertion that “[t]he telephone-only meet and confer requirements in the Magistrate's individual rules” are “used to evade the meet and confer requirements of the FRCP” and the contention that “telephone calls have not been effective.” Id. at 3. Marquez also announced her dissatisfaction with the Court making rulings in response to “informal pre-motion letters,” asserted that these rulings had prejudiced her, and that she was bound to “develop a record for appeal” by filing the formal motion. Id. The result, according to Marquez, was that she was “currently unable to respond substantively to pre-motion letters.” Id. She further 20 announced that “when seeking judicial relief, I intend to file formal motions,” id., thus reaffirming that she had no intention of complying with the Court's Individual Practices.

The Court issued an order in response to Marquez's March 11 letter on March 14, 2022. See Order, dated Mar. 14, 2022 (Docket # 370) (“Mar. 14 Order”). The Court noted that “it appears plaintiff has chosen to engage in the tasks she prefers to engage in rather than attend the court-ordered conference.” Id. at 5. The Court stated that it would hold the March 14 conference on the electronic discovery production dispute as scheduled. Id. The Court further clarified that “no formal motion to extend the discovery deadline will be entertained,” and that “[t]he Court requires compliance with paragraph 2.A of its Individual Practices before hearing any discovery dispute, including a dispute about an extension of time.” Id.

The Court also noted that the defendants had previously filed a letter (Docket # 366) indicating that there was a dispute regarding the scheduling of plaintiff's deposition. Mar. 14 Order at 5. The Court noted that Marquez's letter “appears to concede that [she] is not willing to participate in the meet and confer process” about this deposition and ordered Marquez to meet and confer with defendants by March 17, 2022. Id. The Court stated: “As the Court has previously warned, the case cannot proceed without plaintiff doing so.” Id. The Court warned that “[i]f plaintiff does not comply with this Order, defendants should inform the Court of this fact and the Court will issue a briefing schedule on a sanctions motion or issue an order to show cause containing such a schedule.” Id.

Marquez did not appear at the Court's March 14, 2022 conference as she had been ordered, see Transcript of March 14, 2022 Conference, filed Mar. 23, 2022 (Docket # 376) (“Mar. 14 Tr.”), which prevented the Court from obtaining additional information from Marquez 21 regarding the dispute. She also did not arrange to meet and confer with defendants on the deposition issue by March 17 as ordered by the Court.

On March 18, 2022, defendants filed a letter reporting that Marquez had failed to meet and confer with defendants as required by the Court's March 14 Order. See Letter from Anjali Bhat, dated Mar. 18, 2022 (Docket # 372) (“Mar. 18 Ltr.”). In response, the Court issued an order stating:

The Court does not see any utility in issuing orders to resolve the disputes in Docket # 366 given that plaintiff has failed to cooperate in the very process designed to resolve disputes such as those raised in Docket # 366. And even if the Court issued orders in response to the application in Docket # 366 notwithstanding plaintiff's failure to cooperate, the Court has no reason to believe she would comply with those court orders given that she has repeatedly violated court orders in the past (and even willfully failed to appear at a court conference).

See Order, filed Mar. 18, 2022 (Docket # 373) (“Mar. 18 Order”), at 2. The Court stayed discovery and directed defendants to file a “motion for sanctions under Fed.R.Civ.P. 37, the inherent powers of the court, and any other appropriate provision of law.” Id. The Court directed defendants to “suggest an appropriate remedy, which may include dismissal of this case in light of plaintiff's repeated violations and the Court's prior warnings (e.g. Docket ## 326, 331, 336).” Id.

Defendants then filed the instant motion.

On April 1, 2022, despite the Court's express instruction that Marquez not file a formal motion to extend discovery - which, at any rate, had been stayed pending defendants' motion for sanctions - Marquez filed the motion she had repeatedly expressed her intention to file, which included a 26-page memorandum of law. See Notice of Motion, filed Apr. 1, 2022 (Docket # 380) (“Mot. to Extend”); Memorandum of Law in Support, filed Apr. 1, 2022 (Docket # 382). The Court denied the motion, noting that it “was filed in flagrant contravention of” the 22 Court's prior Orders and its Individual Practices. See Order, dated Apr. 4, 2022 (Docket # 384) (“Apr. 4 Order”).

II. GOVERNING LAW

A. Rule 37

Rule 37 of the Federal Rules of Civil Procedure “governs the district court's procedures for enforcing discovery orders and imposing sanctions for misconduct.” World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 158 (2d Cir. 2012). Rule 37(b)(2)(A) provides that “[i]f a party . . . fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders.” Rule 37(b)(2)(A) authorizes a range of sanctions, including “dismissing the action or proceeding in whole or in part” and “rendering a default judgment against the disobedient party.”

Courts look to four non-exhaustive factors when considering whether to impose sanctions under Rule 37: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance[;] and (4) whether the non-compliant party had been warned of the consequences of noncompliance.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (internal quotation marks, alteration, and citation omitted). “[T]hese factors are not exclusive, and they need not each be resolved against” a party to warrant sanctions. S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010).

“Whether exercising its inherent power, or acting pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery abuses.” Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999) (citing N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1354 (2d Cir. 1989)). Although a harsh penalty, dismissal under Rule 37 is an appropriate 23 sanction “where a party fails to comply with the court's discovery orders willfully, in bad faith, or through fault.” John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988). Dismissal is appropriate “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a sanction.” Agiwal, 555 F.3d at 303 (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976)). Because “Rule 37 permits the imposition of ‘just' sanctions[,] the severity of sanction must be commensurate with the non-compliance.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007).

B. Fed. R. Civ. P. 41

Fed. R. Civ. P. 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Unless the court specifies otherwise, Rule 41(b) provides that dismissal “operates as an adjudication on the merits.” Rule 41(b) authorizes a district court to “dismiss a complaint for failure to comply with a court order, treating the noncompliance as a failure to prosecute.” Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995). “The central purpose of Rule 41(b) is to impose a duty of due diligence on plaintiffs and to allow Courts to adjudicate cases in a prompt and orderly manner.” Shukla v. Deloitte Consulting LLP, 2021 WL 3159759, at *4 (S.D.N.Y. July 23, 2021), adopted, 2021 WL 3721349 (S.D.N.Y. Aug. 20, 2021). However, “dismissal with prejudice is ‘a harsh remedy to be utilized only in extreme situations.'” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)).

A district court considering a Rule 41(b) dismissal weighs five 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,

24

(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.

Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)). “No single factor is generally dispositive.” Id.

As noted, Rule 41(b) authorizes a district court to “dismiss a complaint for failure to comply with a court order, treating the noncompliance as a failure to prosecute.” Simmons, 49 F.3d at 87. The factors to be examined are the same whether labeled a sanction for failure to prosecute or for failure to comply with a court order. See Baptiste, 768 F.3d at 216.

C. Rule 16(f)

Fed. R. Civ. P. 16(f)(1) provides that

On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney:

(A) fails to appear at a scheduling or other pretrial conference;

(B) is substantially unprepared to participate--or does not participate in good faith--in the conference; or

(C) fails to obey a scheduling or other pretrial order.

“It is well settled that in this court, the standards to be applied in imposing sanctions under Rule 16 are identical to the familiar standards contained in Rule 37.” Fonar Corp. v. Magnetic Plus, Inc., 175 F.R.D. 53, 55 (S.D.N.Y. 1997) (collecting cases); accord Martinez v. N.Y.C. Health & Hosps. Corp., 2017 WL 6729296, at *3 (S.D.N.Y. Dec. 28, 2017) (“In considering sanctions under Rule 16(f), courts have considered the factors applied in cases arising under Rule 37(b)”); Cohen v. U.S. Dep't of Just., 2017 WL 149987, at *2 (S.D.N.Y. Jan. 13, 2017); Vajic v. API Rest. Corp., 2014 WL 4384148, at *2 (S.D.N.Y. Sept. 4, 2014); Quiles v. Beth Israel Med. Ctr., 168 F.R.D. 15, 18 (S.D.N.Y. 1996). The 1983 advisory committee notes explain that “Rule 16(f) incorporates portions of Rule 37(b)(2), which prescribes sanctions for 25 failing to make discovery,” and state that “[t]his should facilitate application of Rule 16(f), since courts and lawyers already are familiar with the Rule 37 standards.” 1983 Advisory Committee Notes, 97 F.R.D. 165, 213.

Accordingly, courts apply the Agiwal factors when imposing sanctions based on both Rule 16 and Rule 37. See Yourman v. Verizon Commc'ns-Telecomms. Corp., 2020 WL 6567041, at *2-3 (E.D.N.Y. Oct. 14, 2020), adopted, 2020 WL 6565198 (E.D.N.Y. Nov. 9, 2020); Kantor v. Air Atl. Med., P.C., 2020 WL 7130732, at *2 (E.D.N.Y. Sept. 23, 2020), adopted, 2020 WL 7123319 (E.D.N.Y. Dec. 4, 2020); Sanchez v. Jyp Foods Inc., 2018 WL 4502008, at *3 (S.D.N.Y. Sept. 20, 2018); S.E.C. v. Euro Sec. Fund, 2009 WL 2709316, at *4-5 (S.D.N.Y. Aug. 27, 2009).

While sanctions pursuant to Rule 37 require an aggrieved party to move for sanctions, a court may impose sanctions pursuant to Rule 16 sua sponte. See Fonar, 175 F.R.D. at 55. III. DISCUSSION

At the outset, we address Marquez's argument that her repeated and admitted refusals to comply with the telephonic or in-person meet and confer requirements of the Court's Individual Practices, as well as her refusal to comply with other aspects of those Individual Practices, do not reflect the violation of any court order. See Pl. Mem. at 6-7. In fact, the Court at the outset of this case ordered the parties to comply with its Individual Practices and in particular paragraph 2.A, the paragraph setting forth the requirements governing discovery applications. See Sept. 23 Order. It ordered compliance with those practices on two additional occasions, including the most recent scheduling order issued on August 9, 2021. See Nov. 26 Order at 1; Aug. 9 Order ¶ 6. Thus, any willful failure to comply with the requirements of paragraph 2.A will be treated no differently from the willful violation of any other court order. Courts regularly impose sanctions 26 for failure to comply with a court's Individual Practices when compliance with those practices has been required by court order. See Martin v. Giordano, 185 F.Supp.3d 339, 362 (E.D.N.Y. 2016) (construing violation of orders which incorporated the court's individual practices as a violation of Fed.R.Civ.P. 16 and imposing sanctions); Xu v. UMI Sushi, Inc., 2016 WL 3523736, at *4 (S.D.N.Y. June 21, 2016) (imposing sanctions for failure to follow court orders and violations of the court's individual practices pursuant to Fed.R.Civ.P. 16(f) and the court's inherent power); Mobley v. Nassau Cnty., 2015 WL 5038400, at *3 (E.D.N.Y. June 23, 2015) (dismissal pursuant to Fed.R.Civ.P. 41 based in part on violations of the court's individual practices), adopted, 2015 WL 5054811 (E.D.N.Y. Aug. 25, 2015).

Marquez also argues that several of the Court's orders were not sufficiently “clear” as to be enforceable by sanction. Pl. Mem. at 21. We agree that only clear orders could serve as the basis for sanctions. See New Pac. Overseas Grp. (U.S.A.) Inc. v. Excal Int'l Dev. Corp., 252 F.3d 667, 669 (2d Cir. 2001) (“To sustain sanctions under Rule 16(f), an order must be unambiguous.”). None of the orders that are the subject of this motion, however, were unclear. Although Marquez characterizes as unclear the Court's order that she “should” not spend her time preparing a formal motion to extend the discovery deadline, see Pl. Mem. at 21 (citing Feb. 2 Order), we reject the notion that the word “should” was ambiguous in the context. In any event later orders eliminated any alleged ambiguity, see Feb. 24 Order at 4 (“The request to file a ‘formal motion' is thus denied.”); Mar. 14 Order at 5 (“As the Court has clearly stated previously (e.g. Docket # 356), no formal motion to extend the discovery deadline will be entertained.”).

As to Marquez's argument that some orders relied upon by defendants do not fit within Rule 37's requirement that sanctions be imposed only where a party has violated an order to 27 “provide or permit discovery,” see Pl. Mem. at 21, neither Rule 16(f) nor Rule 41 contain such a limitation.

We have addressed in the fact section above numerous instances in which Marquez failed to comply with clear court orders. To give some of the instances: in December 2019, Marquez refused to participate in telephonic meet and confers with opposing counsel. See Dec. 20, 2019 Order at 1. She refused again in November 2021. See Dec. 16 Order; Nov. 22 Emails at 1. Despite the Court's December 16, 2021 Order reiterating that Marquez was required to meet and confer with opposing counsel, she refused to do so again on December 20, 2021, see Dec. 20 Email, and on January 19, 2022, see Jan. 19 Email. Marquez stated that she would not respond to the defendants' letters raising discovery disputes. See Feb. 1 Ltr. at 1. Marquez refused to confer with defendants to schedule a deposition. See Mar. 8 Ltr. at 1-2; Mar. 11 Ltr. at 1. Marquez disobeyed the Court's order (see Mar. 8 Order) that she attend the Court's March 14, 2022 discovery conference, see Mar. 14 Order; Mar. 14 Tr. The Court then specifically ordered Marquez to confer with defendants by March 17, 2022 to discuss scheduling her deposition, see Mar. 18 Order at 2, but she refused to comply with this Order. Because she had failed to meet and confer with defendants regarding the extension of any discovery deadline and had failed to explain in a separate letter why formal briefing of any dispute on this topic was required, as required by the Court's Individual Practices, the Court denied Marquez permission to file a formal motion to extend the discovery deadline, see Apr. 4 Order, but she did so anyway, see Mot. to Extend, and used her plan to file the formal motion as an excuse not to comply with other court obligations, see, e.g., Feb. 1 Ltr. at 1; Mar. 11 Ltr. at 3-4.

Because Marquez violated Court's orders, including both discovery and other pretrial orders, sanctions may be imposed under Rule 16(f), Rule 37(b), and/or Rule 41(b). As noted, the 28 same set of factors govern the imposition of sanctions under both Rule 16(f) and Rule 37(b)(2)(A). See Fonar, 175 F.R.D. at 55. Additionally, there is a “substantial overlap” between these factors and the factors to be considered under Rule 41(b). Komatsu v. City of New York, 2022 WL 1446545, at *8 (S.D.N.Y. Apr. 21, 2022); accord Peters-Turnbull v. Board of Education, 7 Fed.Appx. 107, 110 (2d Cir. 2001) (“As the District Court noted . . . there is little distinction whether the dismissal is technically made under Rule 41 or Rule 37”); Shukla, 2021 WL 3159759, at *5 (where plaintiff had engaged in “serial noncompliance with the Court's Orders and brazen flouting of the Court's authority,” court recommended dismissal “under Rule 37(b) and/or Rule 41(b)”); Samonte v. Wanat, 2014 WL 1817605, at *7 (E.D.N.Y. May 6, 2014) (recognizing “overlap” and dismissing action pursuant to both Rules). Accordingly, we examine all the factors relevant to Rule 16(f), Rule 37(b), and Rule 41(b).

A. Duration of Failure to Comply

As to the first factor, the duration of noncompliance with court orders, we note that Marquez has been noncompliant for nearly the entirety of this litigation, beginning with Marquez's counsel's refusal to attend a court-ordered Rule 26(f) conference in August 2019. See Sept. 23 Order. However, the violations that are the subject of the defendants' motion began in November 2021, when Marquez refused to confer in person or by telephone with defendants' attorneys, see Def. Mem. at 5-6, and stated that she would not comply with the Court's Local Rules or Individual Practices, including paragraph 2.A, which the parties were ordered to comply with in the Court's August 9, 2021 Scheduling Order. See Nov. 22 Email at 1. As described above, this refusal to comply with the Court's Orders and Individual Practices persisted beyond the Court stay of discovery on March 18, 2022, and continued at least until April 1, 2022, when 29 she filed the formal motion to extend discovery. Accordingly, the duration of Marquez's noncompliance is at least 5 months.

A duration of noncompliance with court orders lasting such periods of time has been held to support severe sanctions. Courts “have found noncompliance for a period of several months sufficient to warrant dismissal or default.” Urbont v. Sony Music Ent., 2014 WL 6433347, at *3 (S.D.N.Y. Nov. 6, 2014) (collecting cases); Embuscado v. DC Comics, 347 Fed.Appx. 700, 701 (2d Cir. 2009) (summary order) (affirming Rule 37 dismissal where the plaintiff violated discovery orders over a three-month period); Shukla, 2021 WL 3159759, at *5 (dismissal with prejudice where plaintiff had not complied with discovery orders for three months), adopted, 2021 WL 3721349 (S.D.N.Y. Aug. 20, 2021); Martin v. City of New York, 2010 WL 1948597, at *2, *4 (S.D.N.Y. May 11, 2010) (dismissing action where interrogatory responses were still outstanding one month after court-ordered deadline, and two and one-half months after initial deadline); Georgiadis v. First Bos. Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) (four months). Of course, Marquez's noncompliance in a sense continues indefinitely as she has never stated her willingness to comply with the Court's requirements governing the presentation of discovery disputes and thus her contumacy continues to this day. Therefore the duration of Marquez's noncompliance with court orders weighs in favor of the severe sanction of dismissal.

B. Whether Plaintiff was Warned of Potential for Dismissal

Marquez has been repeatedly warned that her violations of this Court's orders and her failure to comply with the Court's Individual Practices could result in sanctions. The Court expressly warned Marquez that her failure to comply with court orders could result in sanctions at least four times. See Dec. 16 Order; Dec. 20 Order at 1; Dec. 23 Order at 2; Mar. 14 Order at 5. The first three of these warnings alluded to the possibility that such sanctions could include 30 the dismissal of the complaint. See Dec. 16 Order; Dec. 20 Order at 1; Dec. 23 Order at 2. The Court's final warning regarding sanctions put Marquez on notice that defendants were authorized to file a sanctions motion if Marquez did not meet and confer with them telephonically by March 17, 2022. See Mar. 14 Order at 5. Despite this and every prior warning, Marquez did not comply. Marquez was acutely aware that the Court issued these warnings, as she noted in a letter to the Court that the Court “has repeatedly suggested that [it] may issue sanctions, including dismissal of this case” and actually asked that the Court not “allude to potential sanctions” in its future orders. See Mar. 11 Ltr. at 2.

In light of these facts, Marquez was aware that her continued noncompliance could result in dismissal. This is sufficient for this factor to weigh in favor of dismissal. See Agiwal, 555 F.3d at 303 (dismissal warranted where the plaintiff had been “warned of the possibility of sanctions, including dismissal”); Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (dismissal warranted where the plaintiff ignored “repeated and explicit warnings from the court that the refusal to comply with court orders . . . would result in the dismissal of his action”); see also Murray v. Mitsubishi Motors of N. Am., Inc., 462 Fed.Appx. 88, 90 (2d Cir. 2012) (summary order) (affirming Rule 37 dismissal where the plaintiff “continued to ignore the court's orders despite the court's warning . . . that further noncompliance could result in dismissal of the action”). The Second Circuit “has repeatedly upheld dismissal as an appropriate sanction where the non-compliant parties were warned of the possibility.” Loc. Union No. 40 of the Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers v. Car-Win Constr. Inc., 88 F.Supp.3d 250, 266 (S.D.N.Y. 2015) (quoting Ruiz v. Citibank, N.A., 2014 WL 4635575, at *3 (S.D.N.Y. Aug. 19, 2014)). 31

Accordingly, this factor, which “has been identified as the most critical of the Agiwal factors,” Ruiz, 2014 WL 4635575, at *3 (punctuation and alterations omitted), weighs strongly in favor of sanctions.

C. Whether Defendants are Likely to be Prejudiced

As to whether defendants will be or have been prejudiced as a result of Marquez's violations of court orders, it has been held “[i]n various contexts” that courts “regularly equate prejudice and undue delay.” Loc. Union No. 40, 88 F.Supp.3d at 267. “[W]hen a plaintiff's delay is ‘lengthy and inexcusable,' prejudice can be presumed.” Romero v. RSK Constr., Inc., 2021 WL 4312486, at *2 (S.D.N.Y. June 30, 2021) (quoting U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 256 (2d Cir. 2004)), adopted, 2021 WL 3494725 (S.D.N.Y. Aug. 9, 2021).

This Court issued its stay of discovery in this case less than two weeks prior to the scheduled close of discovery. Throughout the discovery period, Marquez had not produced a single document to defendants and had refused to sit for a deposition or even discuss its scheduling with the defendant. See Mar. 11 Ltr. at 1 (Marquez states that she has “not had an opportunity to produce documents”); id. (Marquez states that she would not prepare for depositions until she completed her formal motion to extend discovery); Jan. 19 Email (same). This demonstrates a significant delay in the defendants' ability to resolve the claims against them in a timely and orderly manner.

More to the point is the future prejudice that will result if Marquez is permitted to continue to litigate this case. Marquez has repeatedly insisted that she will not comply with orders, such as orders to confer telephonically or to engage in letter briefing. See, e.g., Mar. 11 Ltr. at 3 (announcing that “when seeking judicial relief, I intend to file formal motions”). Considering Marquez's blatant refusal to meet and confer with opposing counsel telephonically 32 and her insistence on stopping discovery to follow her own vision of the best way to present disputes notwithstanding Court requirements, there is virtually no chance that this case could be concluded on any reasonable timetable. The extended pendency of litigation, especially where it has been lengthened due to the noncompliance of the opposing party, has been held to constitute prejudice. See Portorreal v. City of New York, 306 F.R.D. 150, 153 (S.D.N.Y. 2015) (“Defendants have had the threat of a possible judgment hanging over them for almost four years with no opportunity to defend and seek an end to the litigation.”). Moreover, “each of the individual Defendants is sued in an individual capacity, so they have each had the threat of judgment and monetary damages looming over them, even though this litigation has stalled.” Duncan v. Sullivan Cnty., 2021 WL 6884505, at *19 (S.D.N.Y. Dec. 29, 2021), adopted, 2022 WL 594181 (S.D.N.Y. Feb. 28, 2022).

Accordingly, we find that defendants have been, or would be, prejudiced by the delay in the resolution of this matter occasioned by Marquez's resistance to this Court's orders and procedures. This factor therefore supports the imposition of sanctions.

D. Balancing Docket Management with the Plaintiff's Interest in Being Heard

For this factor, the Court balances “the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard.” Baptiste, 768 F.3d at 216.

Marquez has had the opportunity to pursue her suit but has continually insisted on doing so in accordance with her own views of how the case should proceed rather than in accordance with the Court's directives. While the Court could theoretically wait out the many months or, more likely, years it will take for Marquez to follow the deadlines and orders she prefers to follow in order to advance her litigation, the Court's interest in avoiding this outcome is weighty. Marquez's failure to comply with court orders has undermined the Court's ability to manage its 33 docket. The progress of discovery in this matter has been essentially brought to a standstill by Marquez's resistance to the Court's discovery orders and Individual Practices. Marquez's unwillingness to comply with discovery orders has thus disrupted the Court's ability to manage its own docket. Especially in the context of Marquez's stated unwillingness and inability to comply with the Court's orders, the Court's interest in docket management far outweighs Marquez's interest in being heard - if it were even possible to get Marquez to actually comply with court orders.

Marquez argues that any congestion of the Court's docket is a result of the Court's “mandatory use of informal letters and the denial of motion practice.” See Pl. Mem. at 19. This argument is frivolous. For example, had Marquez actually promptly used the Court's process for requesting an extension of a discovery deadline (which requires conferring with opposing counsel and giving reasons for the extension), the Court likely would have granted the request. Instead, she brought the case to a standstill by announcing in December 2021 that she would be filing a formal motion to extend the March 31, 2022 discovery deadline, see Dec. 16 Ltr. at 3, refusing to take further action to comply with court-ordered and other discovery obligations in the meantime, and then filing that motion almost four months later, see Mot. to Extend. Of course, the use of letters to seek extensions has in the Court's experience (and likely that of every other judge) in fact promotes the “speedy” and “just” resolution of civil actions. See Fed.R.Civ.P. 1.

As for paragraph 2.A's requirement of a telephonic (or in-person) meet-and-confer process followed by a letter application in the case of discovery disputes, this too has been instrumental in minimizing congestion in the Court's docket. Notably, the Court imposes no limitation on the page length of such letters and gives parties the option (once they have 34 complied with the Court's process) to seek formal briefing of the discovery application if that is necessary, which it rarely is. Telephone conferences are critical to promoting a reasoned discussion between litigants, on a prompt basis, and without the posturing that often occurs in written communications and the concomitant delay necessitated by outlining positions in writing.

Thus, this factor favors the imposition of sanctions.

E. Willfulness and Reasons for Noncompliance

While the Court is all the more shocked by plaintiff's contumacy given her status as an admitted attorney, it is not necessary to consider this fact in assessing her willfulness inasmuch as a “persistent refusal to comply with” discovery orders is by itself “sufficient evidence of willfulness [and] bad faith.” Masi v. Steely, 242 F.R.D. 278, 285 (S.D.N.Y. 2007). Of course, the fact that plaintiff is an attorney makes her actions all the more obviously willful given that as an attorney she is aware by training of the importance of obeying court orders. Moreover, after plaintiff's repeated violations of court orders, the Court actually took the time to remind plaintiff that she did not have the option to disobey court orders but instead was required to comply with them even if she thought they were unlawful. See Dec. 23 Order at 2. While Marquez engaged in a telephonic meet-and-confer after that warning, she then reverted to her previous position of disobeying court orders when she did not wish to comply with them.

Thus, this is not a case where an inexperienced pro se plaintiff did not comprehend what a Court was telling her to do. Marquez understood exactly what the Court expected her to do and repeatedly announced to the Court and to her adversary that she had no intention of complying with the Court's directives. See, e.g., Nov. 22 Email at 1 (“I will not be following Local Rule 37.2 or Section 2A of Magistrate Gorenstein's Individual Practices”); Dec. 10 Email at 2 (“I am no longer able to follow Section 2A of Magistrate Gorenstein's rules.”); Dec. 16 Ltr. at 2 35 (“I am unable to comply with Section 2A of the Magistrate's individual rules moving forward.”).

And, of course, plaintiff failed to comply with the Court's directives on many occasions. To give but a few examples that occurred most recently, the Court ordered the parties to appear for a conference on a discovery dispute, see Mar. 8 Order, but Marquez refused to appear so that she could file a formal motion to extend the discovery deadline, see Mar. 11 Ltr. at 1. The Court repeatedly denied Marquez permission to file that motion, see Feb. 24 Order at 4 (“The request to file a ‘formal motion' is thus denied.”); Mar. 14 Order at 5 (“no formal motion to extend the discovery deadline will be entertained”), but she did so anyway, see Mot. to Extend. The Court ordered Marquez to confer with defendants by March 17, 2022 to schedule her deposition, see Mar. 14 Order at 5, and she refused to do so, see Mar. 18 Ltr.; Mar. 18 Order at 2. This degree of persistence in violations of court orders suffices to demonstrate that Marquez's violations of court orders were willful.

Courts have noted that willfulness is shown where a litigant demonstrates an ability to perform tasks that they wish to perform, but not tasks ordered by the court. See Duncan, 2021 WL 6884505, at *18 n.7 (“Plaintiff's claim that she is completely unable to participate in discovery appears inconsistent with her ability to prepare and submit a 45-page affirmation, accompanied by 21 exhibits, in response to these motions.”); D'Attore v. City of New York, 2012 WL 5871604, at *4 (S.D.N.Y. Sept. 27, 2012) (viewing a party's “refusal to fulfill his discovery obligations” as willful where “his active filing of a multiplicity of submissions in this and related cases . . . amply demonstrates that he is fully able to churn out documents when he wishes to do so.”), adopted, 2012 WL 5871602 (S.D.N.Y. Nov. 20, 2012). Here, Marquez filed a lengthy brief on the issue of a discovery extension but refused to telephonically meet and 36 confer with defendants about scheduling her deposition or to engage in other discovery tasks, such as producing even a single document in response to the defendants' discovery requests. See Mar. 11 Ltr. at 1; Def. Mem. at 5-7.

Marquez's only argument that she has not exhibited willfulness rests on her assertion that she “needed to file formal motion [sic] to extend the” discovery deadline, and that it was necessary to “develop and preserve the record for appeal.” Pl. Mem. at 8. But this shows only that Marquez prioritized her own view of how the case should be litigated over the actual orders issued by the Court. In other words, it demonstrates only that Marquez had her own reasons for violating court orders, not that she acted without willfulness.

Marquez cites Weitzner v. Cynosure, Inc., 802 F.3d 307, 314 (2d Cir. 2015), apparently arguing that Weitzner supports her decision to “preserve [her] appellate interests even in circumstances where doing so may conflict with a judge's individual practices,” see Pl. Mem. at 11. The relevant portion of that decision discussed whether a litigant could deviate from compliance with a court's Individual Rules if necessary to comply with the Federal Rules of Civil Procedure. See 802 F.3d at 314. The Federal Rules of Civil Procedure, however, do not bar or conflict with any order issued by this Court or any individual practice of this Court.⁸Thus, Weitzner is irrelevant. Marquez also cites Curto v. Roth, 296 Fed.Appx. 129, 130 (2d Cir. 2008), for the proposition that district courts must “allow filing of even those motions that, on their face, may appear to lack merit” for the purpose of “enabl[ing] appellate review.” Pl. Mem. at 11. 37 But Curto involved a court's failure to allow a motion to be filed at all - not an order requiring that a motion be filed in a specific format, on a specific timetable, or with certain prerequisites (such as a meet and confer requirement). In any event, even if Marquez could argue that the Court should have granted her permission to file a formal motion to extend the discovery deadline, that provides no warrant to repeatedly violate court orders, to refuse to appear at a court-ordered conference, and to refuse to confer on the scheduling of her own deposition. Rather, the proper recourse would be to seek review of that refusal to grant permission. See Maness, 419 U.S. at 458 (“If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal.”); accord McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) (“An order issued by a court must be obeyed, even if it is later shown to be erroneous.”).

8 Marquez makes the vague suggestion that the Court's meet and confer requirement is “in conflict with controlling procedural law under the Federal Rules,” apparently arguing that the requirement is inconsistent with the Fed.R.Civ.P. 37(a)(1) requirement that parties hold a conference in “good faith” prior to filing a motion to compel discovery. See Pl. Mem. at 18. This argument has no merit inasmuch as the Court's meet and confer requirement facilitates, rather than undermines, compliance with Fed.R.Civ.P. 37.

F. Efficacy of Lesser Sanctions

Finally, we consider whether lesser sanctions would be sufficient to redress and deter discovery violations such as Marquez's. “[A] court should always seek to impose the least harsh sanction that will remedy the discovery violation and deter such conduct in the future.” Farmer v. Hyde Your Eyes Optical, Inc., 2015 WL 2250592, at *8 (S.D.N.Y. May 13, 2015) (citation omitted). However, “deliberate and persistent noncompliance render[s] lesser sanctions inappropriate,” Embuscado, 347 Fed.Appx. at 701, “and a district court is not required to exhaust possible lesser sanctions before imposing dismissal or default if such a sanction is appropriate on the overall record,” Farmer, 2015 WL 2250592, at *8; accord Shcherbakovskiy, 450 Fed.Appx. at 88. 38

This is not a case where Marquez toed the line once it was made clear to her that if she violated court orders in the future, her case would be dismissed. Rather, in the face of repeated warnings, she continued to violate court orders. Not only did she violate court orders, she brazenly announced that she had no intention of complying with any of the Court's orders that interfered with her own view on how the case she proceed. See, e.g., Dec. 16 Ltr. at 1-2; Mar. 11 Ltr. at 4. Thus, in communications with opposing counsel and in public filings, Marquez has flouted the Court's Individual Practices and flatly stated that she would not comply with them. Marquez has unilaterally dictated what motions she will file, how long she intends to spend briefing them, and when she will turn to discovery. Marquez has consistently refused to meet and confer telephonically with opposing counsel. See, e.g., Feb. 4 Ltr. at 1 (“I will be unable to address other tasks in this litigation, including: . . . responding to motions or requests to meet and confer”); Mar. 11 Ltr. at 3 (“As I have previously informed the Court, there is no meet and confer process or meaningful communication between the parties in this case.”). In other words, Marquez had doubled down on her position that she is not required to comply with court orders and violated them repeatedly. In her last major refusals to comply, she refused to meet and confer telephonically with the defendants on the scheduling of her own deposition and refused to attend a court-ordered conference. See Mar. 11 Ltr.; March 18 Ltr.; Mar. 18 Order at 2.

Her refusal to comply with court directives continued even after the filing of the instant sanctions motion, manifesting itself in the most petty of forms. Instead of complying with the requirements of Judge Carter's Individual Practices, ¶ 1.D, which states that extensions “must” be made by letter, see Individual Rules of Practice of Hon. Andrew L Carter Jr. (available at https://nysd.uscourts.gov/hon-andrew-l-carter-jr), Marquez file a notice of motion, a declaration and a memorandum of law to seek a one day extension to file an objection to a court order 39 (Docket ## 393-95). Later, when this Court issued an Order requiring that supplemental briefing be filed on a particular date (Docket # 419), Marquez simply ignored the Order, declined to comply with the Court's requirement to file a letter seeking an extension, and instead made a responsive filing (Docket # 422) on her own preferred timetable a week after the due date.

Were the Court to impose some sanction other than dismissal, the Court has no doubt that the lesser sanction would cause no change in Marquez's position as to how she was going to litigate this case in the future.

Terminating sanctions have been upheld where a party's “abuse of the discovery process showed no signs of abatement.” Friends of Animals Inc. v. U.S. Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997); accord Chavez v. ABC Corp., 2016 WL 4076580, at *3 (E.D.N.Y. June 1, 2016) (“the Court's repeated admonishments to the defendants have gone unheeded, suggesting that the warnings have been ineffective”), adopted, 2016 WL 4154694 (E.D.N.Y. July 29, 2016). Marquez has been resolute in her unwillingness to comply with the Court's orders governing discovery, through her refusals to adequately meet and confer with opposing counsel, failure to attend a court-ordered conference, and the filing of a motion in contravention of the Court's orders.

What is more, Marquez has stated that she is prepared to have this case dismissed rather than comply with this Court's orders, and apparently seeks an appellate ruling that this Court must abandon its meet and confer requirement and the requirement that discovery disputes be presented initially by letter. Thus, Marquez stated that she would file her motion challenging paragraph 2.A of the Court's Individual Practices, that she would appeal any denial to the Second Circuit, and that “[i]f that relief is denied, this case will effectively be over, as I cannot meaningfully litigate my claims under the cumulative procedures adopted at the district level.” 40 Dec. 22 Ltr. at 1; see also Sept. 14 Ltr. at 1 (“it appears increasingly likely that this entire case will be decided purely on procedural grounds”). In an email to opposing counsel, Marquez reiterated her unwillingness to comply with this Court's procedures, saying “[i]t is very clear to me that I cannot litigate this case on the merits under the procedures adopted by the Court.” Dec. 10 Email at 1. In light of her behavior and statements, the Court cannot find that any sanction less than dismissal would have any effect on her behavior.

The Court has made numerous efforts to accommodate Marquez even though as an attorney she should not require such accommodation. For example, on January 9, 2020, the Court noted that Marquez had failed to respond to a discovery letter within the time required by paragraph 2.A of the Court's Individual Practices; nevertheless, the Court sua sponte extended Marquez's time to respond to January 13, 2020. See Order, dated Jan. 9, 2020 (Docket # 218), at 3. The Court's January 17, 2020 Order noted that Marquez had “fail[ed] to participate in the discovery process,” and explained that “[i]n these circumstances, the Court might find an order of sanctions to be appropriate,” but instead granted her an extension of several discovery deadlines. See Jan. 17 Order at 2. The Court's December 16, 2021 Order again noted that Marquez had failed to respond to the defendants' letter on a discovery dispute within the two days required by paragraph 2.A of the Court's Individual Practices. See Dec. 16 Order at 1. Nevertheless, the Court declined to “grant the requested relief as unopposed,” and instead directed Marquez to confer with opposing counsel - which Marquez had a preexisting obligation to do. Id. On February 2, 2022, the Court sua sponte granted Marquez an additional period of time to file her response to a letter filed by the defendants on a discovery dispute that she had failed to oppose. See Feb. 2 Order at 3. On February 15, 2022, the Court granted Marquez's request to extend this time further, even though her letter requesting an extension had 41 not complied with the Court's Individual Practices. See Order, dated Feb. 15, 2022 (Docket # 350), at 2 (“Normally, the Court would deny this request for failure to comply with paragraph 1.E of the Court's Individual Practices.”). These are but a few examples of the leeway afforded to plaintiff by the Court.

We are doubtful that Marquez is due any special solicitude as a pro se litigant given that she is admitted to practice before this Court. See generally Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“a lawyer representing himself ordinarily receives no . . . solicitude at all”). But even if she were an untrained pro se litigant, dismissal would be warranted. “[A]ll litigants, including pro ses, have an obligation to comply with court orders, and failure to comply may result in sanctions, including dismissal with prejudice.” Agiwal, 555 F.3d at 302 (punctuation and internal citation omitted). Additionally, although dispositive sanctions against a pro se litigant generally may be imposed only where “a warning has been given that noncompliance can result in dismissal,” Valentine, 29 F.3d at 50, Marquez was warned multiple times that failure to follow the Court's orders could result in dismissal and Marquez herself acknowledged those warnings and that possibility. Even a pro se litigant may have their case dismissed where, as here, they have exhibited “sustained and willful intransigence in the face of repeated and explicit warnings from the court that the refusal to comply with court orders . . . would result in the dismissal of [the] action.” Id. Moreover, we have found that Marquez's conduct was willful, and “[s]evere sanctions are justified . . . when the failure to comply with a court order is due to willfulness or bad faith, or is otherwise culpable.” Daval Steel Prod., a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991). * * * 42

“Courts in the Second Circuit routinely refuse to issue sanctions below dismissal where parties have repeatedly failed to comply with the court's orders.” Chen v. Hunan Manor Enter., Inc., 2020 WL 4932777, at *4 (S.D.N.Y. Aug. 24, 2020); accord Cole-Hoover v. United States, 2017 WL 1425617, at *4 (W.D.N.Y. Apr. 21, 2017) (dismissal was appropriate where plaintiff had not attended court appearances, failed to file responses as directed, and failed to meet discovery obligations). Our examination of the factors relevant to this question shows that each favors the imposition of severe sanctions. Marquez has made clear that she is only willing to proceed in this litigation on her own terms. Allowing Marquez to unilaterally dictate the nature and pace of this litigation would be unfair to the defendants, as well as to the other litigants before this Court who comply with court orders. A party's compliance with discovery orders “is necessary to the integrity of our judicial process,” and “[a] party who flouts such orders does so at [her] peril.” Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 73 (2d Cir. 1988).

Accordingly, this is an “extreme situation[]” justifying resort to the rare sanction of dismissal with prejudice. Lyell Theatre, 682 F.2d at 42.

IV. CONCLUSION

For the foregoing reasons, the defendants' motion for the sanction of dismissal with prejudice (Docket # 385) should be granted.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file 43 objections or responses must be directed to Judge Carter. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). 44