Opinion
No. 02 CV 8993 (LAK).
September 6, 2005
Dear Judge Kaplan:
We represent the Doe Plaintiffs in the above-captioned matter. We write to request that the Court reconsider its decision to dismiss the claims of Doe Plaintiffs 73, 551, 614, and 700 for their failure to respond to Lateko Bank's Interrogatory No. 23 within two weeks of the Court's August 1, 2005 Order.
On August 18, 2005, the Court endorsed Lateko Bank's letter requesting that several Doe Plaintiffs be dismissed for their failure to respond to Lateko Bank's Interrogatory No. 23 by August 15, 2005. Included among the dismissed Plaintiffs were Doe Plaintiffs 73, 551, 614, and 700. The Plaintiffs respectfully submit that dismissal is a harsh remedy as to these Doe Plaintiffs for the reasons set forth below.
First, dismissal is an unduly harsh remedy with respect to Jane Doe 73 and John Doe 614 because both individuals provided responses to Interrogatory No. 23 within a few days of the Court's deadline. Indeed, Jane Doe 73's response was produced to Lateko Bank on August 16, 2005 and John Doe 614's response was produced on August 18, 2005. See Exhibits A and B (Does 73 614's Responses to Int. 23 Propounded by Lateko Bank). Lateko Bank cannot seriously claim to have been prejudiced by such a short delay in producing responses to a single interrogatory. Nor can Lateko Bank seriously claim that the responses provided by Doe Plaintiffs 73 and 614 resulted in an unfair surprise, since these Doe Plaintiffs provided an answer that merely confirmed what was already known about them — i.e., "I state that I am not bringing this action on behalf of anyone else." See id.
Second, dismissal is a particularly harsh remedy with respect to John Doe 551 and John Doe 700 because extenuating circumstances prevented both of these individuals from meeting the August 15th deadline. Specifically, Plaintiffs' Counsel have been advised that John Doe 551, William Mitchell, has been told by his physician that he only has sixty (60) days to live because he is in the final stages of a Hepatitis C infection. We also have been advised that the disease robs Mr. Mitchell of oxygen and his brain deteriorates incrementally each day. Consequently, Mr. Mitchell forgets easily and has to struggle at times to keep up with everyday affairs.See Exhibit C (August 23, 2005 E-mail from Paul Mitchell). Mr. Mitchell's brother, Paul Mitchell (Doe Plaintiff 550), however, has informed Plaintiffs' Counsel that William has executed his response to Interrogatory No. 23, that he has mailed it to Paul, and that, once Paul receives the response, he will fax it to Plaintiffs' Counsel for production.
Similarly, John Doe 700, Jeffrey Saltzman, suffers from several debilitating ailments. His various health concerns prevented him from timely attending to Lateko Bank's interrogatory, but he did execute a response on August 19, 2005, which was produced to Lateko Bank on August 23, 2005. A copy of a letter he sent last week describing his condition is attached as Exhibit D.
For all of the forgoing reasons, Plaintiffs' respectfully request that the Court reconsider its August 22, 2005 endorsement dismissing the claims of Doe Plaintiffs 73, 614, 551, and 700.
Thank you for your time and consideration.
SO ORDERED.