Opinion
04 Civ. 3341 (JSR)(KNF).
November 20, 2006
REPORT and RECOMMENDATION
I. INTRODUCTION
In this action, brought pro se by Marcia Rafter ("Rafter"), pursuant to 42 U.S.C. § 1983, the plaintiff seeks to recover damages for, inter alia, false arrest, malicious prosecution and defamation. Before the Court is the plaintiff's motion, made pursuant to Rules 11, 26 and 37 of the Federal Rules of Civil Procedure, to strike the defendant Kimberly Jenkins' ("Jenkins") answer to the complaint, due to Jenkins' failure to answer the plaintiff's interrogatories and to respond to the plaintiff's document requests timely.
II. BACKGROUND
Rafter alleges that, on or about December 22, 2005, she served on counsel to Jenkins interrogatories and document requests. Rafter contends that, thereafter, from January to March 2006, she requested of counsel, via facsimile, letter and telephone that responses to her discovery demands be provided. In March 2006, according to Rafter, Jenkins' counsel advised her that Jenkins would not cooperate with counsel in preparing responses to the plaintiff's discovery demands and, consequently, no responses would be forthcoming.
In May 2006, the Court had a telephonic conference with the parties to address a multiplicity of concerns that had been brought to the Court's attention via correspondence. During the conference, counsel to Jenkins revealed that Jenkins had recently remedied her failure to respond to Rafter's discovery demands by forwarding interrogatory answers and document request responses to the plaintiff. However, due to Jenkins' tardiness in fulfilling her discovery obligations, Rafter announced that she would apply to the court for an order striking Jenkins' answer to the complaint.
Jenkins does not dispute that she responded to Rafter's discovery demands tardily. She contends her tardiness was not willful conduct "but merely an oversight by [her] counsel." Moreover, according to Jenkins, Rafter has not been prejudiced by the tardy response she made to the plaintiff's discovery demands. Therefore, Jenkins maintains that the "severe sanction" Rafter seeks from the court is not warranted.
III. DISCUSSION
Fed.R.Civ.P. 11
Fed.R.Civ.P. 11, in its most pertinent part, states the following:
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(d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery requests, responses, objections and motions that are subject to the provisions of Rules 26 through 37.
A simple reading of the above-cited portion of Fed.R.Civ.P. 11 indicates that the Rule has no application to issues arising out of the pretrial discovery phase of litigation. Therefore, no basis exists upon which to grant Rafter's motion for sanctions made under this Rule. Furthermore, a motion made pursuant to Fed.R.Civ.P. 11 cannot be combined with any other motion. See Fed.R.Civ.P. 11(c)(1)(A): Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328 (2d Cir. 1995). Here, Rafter combined her Rule 11 motion with a motion for relief under Fed.R.Civ.P. 37, and 26. Rafter's improper conduct provides an additional ground for denying her application that a sanction be imposed by the court on Jenkins, pursuant to Fed.R.Civ.P. 11. Fed.R.Civ.P. 26
The plaintiff has indicated that her motion to strike Jenkins' answer is premised, in part, upon Fed.R.Civ.P. 26. However, having read Rafter's motion liberally, as the court is required to do, see Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595-596 (1972), and having interpreted it to raise the strongest arguments it suggests, see Dibbs v. Roldan, 356 F. Supp. 2d 340, 348 (S.D.N.Y. 2005) (citations omitted), the Court finds that Rafter's reliance on Fed.R.Civ.P. 26 for the relief she seeks appears to be misplaced. Fed.R.Civ.P. 37, upon which she also relies is the more appropriate vehicle to obtain the sanction the plaintiff believes is warranted for Jenkins' dilatory approach to her discovery obligations. Accordingly, that provision of the Federal Rules of Civil Procedure is addressed below. Fed.R.Civ.P. 37
Fed.R.Civ.P. 37 grants to a court broad discretionary authority to impose sanctions upon a party to a litigation that has failed to meet its discovery obligations. See Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 113 (2d Cir. 2002). Rule 37 provides that a court make such orders "as are just." The purposes of Rule 37 sanctions are threefold: (1) to prevent a party from benefitting from its own failure to meet its discovery obligations; (2) to seek compliance with a discovery order of the court; and (3) to deter a particular litigant and litigants in general from failing to comply with their discovery obligations. See Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988). Striking the answer of a defendant to a litigation, the sanction Rafter seeks through the instant motion, is a precursor event to rendering a judgment by default against that defendant. A court must be mindful that rendering a judgment by default, pursuant to Fed.R.Civ.P. 37, is a harsh sanction. It is one that should be used sparingly since it results in the termination of an action without an adjudication of the merits of the claim(s) asserted by the plaintiff.
A party upon whom interrogatories have been served has 30 days to answer the interrogatories or to lodge objections to them.See Fed.R.Civ.P. 33. A party upon whom a request for documents has been served has 30 days to make a written response.See Fed.R.Civ.P. 34. In the instant case, the plaintiff served interrogatories and a request for documents on Jenkins in December 2005. The plaintiff alleges that when answers to the interrogatories and responses to her requests for documents were not forthcoming timely, she contacted counsel to Jenkins regarding her client's failure to comply timely with her discovery obligations. The plaintiff alleges that in March 2006, counsel to Jenkins advised her that Jenkins would not cooperate with her in preparing answers to the interrogatories or responses to the plaintiff's requests for documents and, furthermore, that Jenkins would not be making any response to Rafter's discovery demands.
Counsel to Jenkins has not disputed Rafter's recollection of the information counsel provided to her in March 2006. However, in response to the instant motion, counsel to Jenkins contends that her client's failure to respond timely to Rafter's discovery demands was an oversight on counsel's part, occasioned by Rafter's service of "numerous discovery demands," which caused Jenkins' counsel to believe "that plaintiff was impermissibly serving a second set of interrogatories without Court leave." If counsel to Jenkins believed that Rafter's discovery demands were improper, counsel should have sought an order from the Court, pursuant to Fed.R.Civ.P. 26(c), relieving Jenkins of the obligation of responding to Rafter's discovery demands. Simply ignoring or not responding to the plaintiff's discovery demands for several months was inappropriate. In any event, Rafter has now received answers to her interrogatories and a response to her request for documents. In fact, Jenkins' response to Rafter's discovery demands preceded the filling of the instant motion.
Having considered all the facts and circumstances pertinent to this motion, the Court finds that the severe sanction of striking Jenkins' answer, and rendering a judgment by default against Jenkins, is not warranted in the instant case. This is so, in part, because the action has not been scheduled for trial and is not likely to be scheduled for trial for some time, and, further, the defendant has come into compliance with her discovery obligations, by responding to the plaintiff's discovery demands.
IV. RECOMMENDATION
For the reasons set forth above, the plaintiff's motion for an order striking the answer of the defendant Jenkins, and, concomitantly, entering judgment by default against her, for failing to respond to discovery demands timely, should be denied.V. 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 ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, United States District Judge, 500 Pearl Street, Room 1340, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).