Opinion
1:19-cv-10578 (AJN) (SDA)
07-23-2021
Ashu Shukla, Plaintiff, v. Deloitte Consulting LLP, Defendant.
ORDER AND REPORT AND RECOMMENDATION
STEWART D. AARON, United States Magistrate Judge
Pending before the Court are: (1) Plaintiff's “Motion to Compel Deloitte Consulting LLP to [T]ake [D]epositions of [P]laintiff's [E]x-girlfriend Dr. Niti Aggarwal, M.D., ” filed July 14, 2021 (Pl.'s 7/14/21 Mot. to Compel, ECF No. 300); (2) Plaintiff's “Motion to Vacate Order on Motion for Reconsideration, ” filed July 17, 2021 (Pl.'s 7/17/21 Mot. to Vacate, ECF No. 310); and (3) Defendant's letter, dated July 19, 2021, requesting that I recommend the dismissal of this lawsuit as a sanction for Plaintiff's “repeated, flagrant violation of Court Orders[, ] . . . obstructionist conduct and unjustifiable filings.” (Def.'s 7/19/21 Ltr., ECF No. 313, at 1.)
For the reasons provided below, I hereby ORDER that Plaintiff's 7/14/21 Motion to Compel and 7/17/21 Motion to Vacate are DENIED. In addition, as further discussed below, in view of Plaintiff's flagrant, longstanding and ongoing refusal to abide by the Court's Orders and contumacious behavior throughout the discovery process, I respectfully RECOMMEND that Plaintiff's case be DISMISSED WITH PREJUDICE pursuant to Rules 37(b) and/or 41(b) of the Federal Rules of Civil Procedure.
BACKGROUND
The Court assumes familiarity with the facts and procedural history of this case and highlights below only the background relevant to the issues presently before the Court.
Plaintiff filed this action in New York State Court on February 1, 2019; Defendant removed it to this Court on November 14, 2019. (See Not. of Removal, ECF No. 1.) Cumulatively, between the state court proceedings and those in this Court, Plaintiff has filed or sought leave to file at least eight different versions of his Complaint and has served on Defendant at least eight sets of requests for documents, totaling at least 290 discrete document requests. (See id.; Pl.'s Mot. for Leave to Amend, ECF No. 92; Pl.'s 4/13/21 Ltr., ECF No. 245.)
In the State Court proceeding, Plaintiff filed an original Complaint and First and Second Amended Complaints and sought leave to file a Third Amended Complaint. (See Not. of Removal, ECF No. 1.) In this proceeding, Plaintiff filed additional First, Second and Third Amended Complaints and sought leave to file a Fourth Amended Complaint. (See Pl.'s Mot. for Leave to Amend, ECF No. 92.)
Since October 2020, Plaintiff has filed at least twenty motions to “reconsider, ” to “vacate, ” to “reopen, ” or to “set aside” various of the Court's Orders-including at least ten such motions in the last two months, and including at least eight such motions challenging rulings that in turn had denied a prior motion to reconsider, vacate, or reopen. The Court previously has denied eighteen of these twenty motions; a nineteenth is denied herein, and the twentieth remains sub judice before District Judge Alison J. Nathan.
(See ECF Nos. 111, 125, 146, 149, 157, 159, 209, 214, 224, 226, 252, 270, 279, 281, 285, 289, 299, 303, 307, 310.) Plaintiff also has filed three interlocutory appeals with the Second Circuit (ECF Nos. 206, 219, 241); while these remain pending, the Court presumes that they ultimately will be denied as procedurally improper. The Second Circuit has “jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.” See 28 U.S.C. § 1291. In addition, the Circuit “may hear appeals of interlocutory orders certified by the district court, subject to the collateral order doctrine, or pertaining to injunctions that affect the substance of the plaintiff's basic claim.” Jackson v. New York, 289 Fed.Appx. 434, 435-36 (2d Cir. 2008) (citations omitted). “Where these exceptions do not apply, [the Second Circuit is] without jurisdiction to review non-final decisions of a district court.” Id. at 436.
On June 14, 2021, having overseen a final round of document discovery during which Plaintiff repeatedly violated Court Orders and engaged in gamesmanship with Defendant, and having determined that document discovery was nearly complete, the Court ordered that the parties promptly commence depositions, with Plaintiff's deposition to be held within thirty days thereafter. (SDA 6/14/21 Order, ECF No. 268, ¶¶ 1-4, 6.) In light of Plaintiff's contumacious behavior, the Court noted that “Plaintiff has been warned on multiple occasions that sanctions may be imposed upon him for failure to abide by Court Orders, ” and cautioned that if Plaintiff “continue[d] to violate Court Orders . . ., sanctions shall be imposed.” (Id. ¶ 8 (emphases in original).)
Also on June 14, 2021, Judge Nathan filed an Order overruling Plaintiff's objections to one of my discovery Orders, in which she too underscored to Plaintiff his obligation to abide by the Orders of this Court and the consequences he would face if he continued not to do so. See Shukla v. Deloitte Consulting LLP, No. 19-CV-10578 (AJN), 2021 WL 2418841, at *5 (S.D.N.Y. June 14, 2021) (“The Plaintiff is warned that a continued failure to comply with orders of the court could lead to the dismissal of his case.” (internal quotation marks, alterations and citation omitted)). In addition, under the heading “Warning Regarding the Plaintiff's Filings”-and after the observation that, “[o]ver the course of this litigation, [Plaintiff] has filed motions, objections, and letters with the Court that are excessive, unnecessary, or otherwise inappropriate”-Judge Nathan provided a set of “rules” that Plaintiff “must abide by” on a “going forward” basis. Id. at *4-5. These included, among other things, that “Plaintiff may only challenge the rulings in this Court through the following methods: (1) a motion for reconsideration or (2) an objection (for Judge Aaron's orders) or (3) an appeal to the Second Circuit (for [Judge Nathan's] appealable orders).” Id. at *4.
By letter dated June 21, 2021, Defendant requested an extension to July 30, 2021 of its time to depose Plaintiff and proposed that the deposition occur on July 23, 27 and/or 28, 2021. (Def.'s 6/21/21 Ltr., ECF No. 274.) On June 22, 2021, via memo endorsement of Defendant's 6/21/21 letter, the Court solicited a response to that letter from Plaintiff, providing that, if Plaintiff failed to respond by June 25, 2021, or if he responded without proposing alternate deposition dates, then “the Court intends to Order Plaintiff to appear for deposition for up to seven hours on July 23, 27 and/or 28.” (SDA 6/22/21 Order, ECF No. 275.)
The Court subsequently entered an amended version of this 6/22/21 Order, which corrected a scrivener's error in the original that had made ambiguous Plaintiff's precise deadline to respond to Defendant's 6/21/21 Letter. (See SDA 6/26/21 Am. & Supp. Order, ECF No. 286.) By any reading of the original 6/22/21 Order, however, Plaintiff failed to timely respond; indeed, to date, he has not done so.
Plaintiff never provided any substantive response to Defendant's 6/21/21 letter. On June 26, 2021, the Court ordered Plaintiff to appear for a remote deposition for up to seven hours on July 23, 27 and/or 28. (SDA 6/26/21 Order, ECF No. 286.) In that Order, the Court noted that, “[i]f Plaintiff fails to make himself available for, and/or refuses to proceed with, his deposition on the dates above, I shall recommend that this case be dismissed, for failure to obey discovery orders pursuant to Federal Rule of Civil Procedure 37(b) and/or failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).” (Id. at 2-3.)
Rather, in a text-only response to the Court's 6/22/21 Order filed later that same day, Plaintiff declared that “the Magistrate Judge does not have the authority to order depositions, ” that Plaintiff “will not partake in [the] Magistrate Judge's abuse of discretion, ” and that Plaintiff “ha[d] already disqualified the Magistrate Judge from this case.” (Pl.'s 6/22/21 Ltr., ECF No. 276 (see docket text).)
On June 29, 2021, Judge Nathan entered an Order denying various of Plaintiff's motions to vacate and to reopen. See Shukla v. Deloitte Consulting LLP, No. 19-CV-10578 (AJN), 2021 WL 2660438 (S.D.N.Y. June 29, 2021). In that Order, Judge Nathan reiterated the six rules she had provided in her June 14 Order, and closed with the following bolded and underlined warning: “ Plaintiff must comply with court orders, including the above instructions regarding his filings and Judge Aaron's discovery orders, or he will be subject to sanctions, which could include dismissal of his case pursuant to Fed.R.Civ.P. 41(b) .” Id. at *3 (emphases in original).
On July 9, 2021, by memo endorsement to a letter from Defendant requesting that Plaintiff confirm whether he intended to appear for his court-ordered deposition, the Court ordered Plaintiff to confirm by no later than July 16, 2021 whether he would appear for his remote deposition on July 28, 2021. (SDA 7/9/21 Order, ECF No. 294.) The Court cautioned Plaintiff that, if he failed to so confirm by July 16, 2021, the Court “w[ould] recommend that this case be dismissed, for failure to obey discovery orders pursuant to Federal Rule of Civil Procedure 37(b) and/or failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).” (Id. at 4.)
Later that same day, Plaintiff moved to vacate the Court's 7/9/21 Memo Endorsement. (Pl.'s 7/9/21 Mot. to Vacate, ECF No. 295 (see docket text).) Judge Nathan denied this motion on July 13, 2021; Plaintiff moved for reconsideration of that denial later that same day; Judge Nathan denied that motion for reconsideration two days later. (AJN 7/13/21 Order, ECF No. 298; Pl.'s 7/13/21 Mot. for Rec., ECF No. 299; AJN 7/15/21 Order, ECF No. 306.) Meanwhile, on July 14, 2021, Plaintiff moved for reconsideration of the Court's 7/9/21 Memo Endorsement. (Pl.'s 7/14/21 Mot. for Rec., ECF No. 303.) The Undersigned denied that motion in the early morning of July 16, 2021, again reiterating that “ Plaintiff is admonished to carefully heed my Orders, as well as the Orders entered by Judge Nathan, or . . . he will be subject to sanctions, which could include dismissal of his case. ” (SDA 7/16/21 Order, ECF No. 309, at 1 (emphases in original).) Plaintiff moved to vacate that order the following day, and that motion to vacate is denied herein. (Pl.'s 7/17/21 Mot. to Vacate, ECF No. 310.)
Notwithstanding the Court's repeated warnings of the probable consequences, Plaintiff failed to confirm by July 16, 2021 that he would appear for his July 28 deposition. Indeed, to date, he has yet to provide any substantive response to the Court's repeated directives that he do so.
LEGAL STANDARDS
I. Federal Rule Of Civil Procedure 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) provides that “[i]f a party . . . fails to obey an order to provide or permit discovery, ” a court may impose sanctions up to and including “dismissing the action or proceeding in whole or in part.” Fed.R.Civ.P. 37(b)(2)(A). Although a harsh penalty, dismissal under Rule 37 is an appropriate 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); see also Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988) (observing that although dismissal “should be imposed only in rare situations, ” it is “necessary to achieve the purpose of Rule 37 as a credible deterrent rather than a paper tiger” (internal quotation marks and citation omitted)); Lewis v. Marlow, No. 17-CV-08101 (KMK), 2021 WL 2269553, at *4 (S.D.N.Y. June 3, 2021) (“Where, as here, a party ‘prevent[s] disclosure of facts essential to an adjudication on the merits' by disobeying a court's discovery orders, ‘severe sanctions are appropriate.'” (citing Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991))).
Courts often consider four factors in determining whether to dismiss an action 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 no one factor is dispositive. S. New Eng. Tel. Co. v. Glob. NAPS Inc., 624 F.3d 123, 144 (2d Cir. 2010).
II. Federal Rule Of Civil Procedure 41
Rule 41(b) grants the court discretion to dismiss a case if a plaintiff fails to prosecute or fails to comply with a court order. Fed.R.Civ.P. 41(b). A court considering a Rule 41(b) dismissal must weigh five factors, none of which is dispositive:
(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,
(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) (citation omitted). 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. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982). However, dismissal under Rule 41(b) is “a harsh remedy to be utilized only in extreme situations.” Harding v. Fed. Rsrv. Bank of N.Y., 707 F.2d 46, 50 (2d Cir. 1983) (quoting Theilmann v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972) (per curiam)).
DISCUSSION
I. Plaintiff's Motion To Compel Is Denied.
Plaintiff's 7/14/21 Motion to Compel seeks to have the Court order Defendant to depose Plaintiff's purported former girlfriend, Dr. Niti Aggarwal. Plaintiff cites no basis or authority for a Court to require that one litigant depose a witness of the other litigant's choosing, and the Court is aware of none. Cf. Fed.R.Civ.P. 30(b) (providing notice obligations of “[a] party who wants to depose a person”; saying nothing about a party who wants its adversary to depose a person (emphasis added)). Accordingly, this motion is DENIED.
II. Plaintiff's Motion To Vacate Is Denied.
Plaintiff's 7/17/21 Motion to Vacate seeks to have the Undersigned withdraw the Order I entered on July 16, 2021 (ECF No. 309), which denied the Motion for Reconsideration that Plaintiff filed on July 15, 2021 (ECF No. 303). The only basis Plaintiff provides for the relief he seeks is that he intended that his 7/15/21 Motion for Reconsideration be considered by Judge Nathan, rather than by me. (See 7/17/21 Mot. to Vacate at 1.)
This motion is denied as well, for at least two reasons. First, the motion violates Judge Nathan's crystal-clear, repeated directive to Plaintiff that his only permissible means of challenging an Order of mine in this action are “(1) a motion for reconsideration or (2) an objection.” Shukla, 2021 WL 2418841, at *4; Shukla, 2021 WL 2660438, at *1. A “Motion to Vacate” is neither of these. Second, Plaintiff's complaint that Judge Nathan, not I, should have considered his July 15 Motion for Reconsideration is baseless. If Plaintiff wished for Judge Nathan to review the various discovery orders of mine that his 7/15/21 Motion for Reconsideration challenges, then he should have filed an objection to those orders, as Judge Nathan spelled out in her June 14 Order. Shukla, 2021 WL 2418841, at *4. Instead, he filed a motion for reconsideration, which, as its very title makes explicit, is a vehicle for asking a jurist to consider anew a ruling that he or she previously made. See, e.g., Miles v. Valle, No. 97-CV-00741 (GLS) (DRH), 2007 WL 3353112, at *1 (N.D.N.Y. Nov. 8, 2007) (advising pro se litigant that “a motion for reconsideration is considered by the same judge that issued the order under reconsideration”). Because Plaintiff's 7/17/21 Motion to Vacate provides no valid basis for vacatur of my 7/16/21 Order, that motion is DENIED.
In the alternative, even if I were to construe Plaintiff's 7/17/21 Motion to Vacate as a Motion for Reconsideration, cf. Jefferson v. Taft Fridays 50, No. 18-CV-01578 (AT) (RWL), 2018 WL 2939034, at *2 (S.D.N.Y. Mar. 14, 2018) (ruling that motion challenging Magistrate Judge's discovery order was “better construed as a motion to reconsider . . . rather than a motion to vacate” because the challenged order was non-final), then I would deny it for failure to “identif[y] an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks and citation omitted); see also Shukla, 2021 WL 2418841, at *4 (quoting Kolel Beth Yechiel Mechil of Tartikov, Inc., 729 F.3d at 104.).
III. Recommendation To Dismiss This Lawsuit.
Defendant's 7/19/21 Letter to the Undersigned asks the Court to dismiss this lawsuit. (See 7/19/21 Ltr. at 8.) After documenting Plaintiff's serial noncompliance with the Court's Orders and brazen flouting of the Court's authority, Defendant concludes the letter with the assertion that “[i]t is impossible for defendant to litigate this case when plaintiff refuses to abide by the Court's Orders, and instead takes every opportunity to re-litigate previous decisions by the Court.” (Id. at 5.)
The Court agrees. Plaintiff's conduct warrants dismissal with prejudice, under Rule 37(b) and/or Rule 41(b) of the Federal Rules of Civil Procedure.
Each of the four factors to be considered under Rule 37(b) weighs in favor of dismissal. First, Plaintiff's willfulness in refusing to comply with the Court's discovery orders has been flagrant and explicit. (See, e.g., Pl.'s 6/22/21 Ltr., ECF No. 276 (see docket text) (“[T]he Magistrate Judge does not have the authority to order depositions.... [T]he plaintiff will not partake in Magistrate Judge's abuse of discretion or any other biased decsisions [sic].”); Pl.'s 7/9/21 Mot. to Vacate, ECF No. 295 (see docket text) (“Biased court orders on this issue are no longer welcome.”).) Second, the Court finds that Plaintiff's “deliberate and persistent noncompliance render[s] lesser sanctions inappropriate.” Embuscado v. DC Comics, 347 Fed.Appx. 700, 701 (2d Cir. 2009); see also, e.g., Lewis, 2021 WL 2269553, at *6 (“In view of Plaintiff's clear and consistent refusal to obey the Court's discovery orders, as well as the contempt with which [he] has flouted those orders, the Court finds that any sanction short of dismissal would fail to serve the purposes of Rule 37 sanctions.”). Third, Plaintiff has been in noncompliance with one or more discovery orders since, at latest, April 12, 2021 (see Def.'s 4/12/21 Ltr., ECF No. 243), including Orders requiring nothing more labor-intensive than the proposal of potential deposition dates or confirmation of the intent to appear at a deposition. See, e.g., Embuscado, 347 Fed.Appx. at 701 (affirming Rule 37 dismissal of action brought by pro se plaintiff who, “over a period of three months, . . . violated a series of court orders”). Finally, Plaintiff has been warned repeatedly, since no later than February 11, 2021, that his continued violation of the Court's discovery orders “could result in the imposition of sanctions up to and including dismissal.” (See SDA 2/11/21 Order, ECF No. 208.) More recently, I specifically warned him that his violation of my 7/9/21 Order in particular will result in a recommendation of dismissal (see SDA 7/9/21 Order), and Judge Nathan warned him, the day before his deadline to confirm his deposition availability, that his “[f]ailure to comply with discovery obligations “ would be “highly likely to result in dismissal of his case under Federal Rules of Civil Procedure 37.” (See AJN 7/15/21 Order, ECF No. 306 (emphasis added).)
The Second Circuit has underscored “the importance [it] place[s] on a party's compliance with discovery orders, ” and that “[a] party who flouts such orders does so at his peril.” Update Art, Inc., 843 F.2d at 73. While dismissal is a “harsh remedy” that “should be imposed only in rare situations, ” id. at 71, Plaintiff's persistent, willful noncompliance with the Court's directives and refusal to accept the Court's authority make this “a case in which the exceptional sanction of dismissal under Rule 37 is warranted.” Lewis, 2021 WL 2269553, at *5 (dismissing lawsuit brought by pro se plaintiff in light of her “persistent and defiant refusal to comply with the Court's discovery orders, ” “willing[ness] to harass her adversaries [and] insult the Court and its staff, ” and “numerous meritless filings”).
Similarly, each of the five factors to be considered under Rule 41(b) weighs in favor of dismissal for failure to prosecute. The first factor (duration of noncompliance), second factor (whether plaintiff received notice of the possibility of dismissal), and fifth factor (inadequacy of lesser sanctions) are discussed above. As for the third factor (prejudice to defendant of further delay), any significant delay in this action will likely invite a raft of filings from Plaintiff, necessitating Defendant's response and further driving up the presumably substantial legal fees this lawsuit has already entailed. (Cf. Def.'s 6/2/21 Ltr., ECF No. 258, at 1 (complaining of how Plaintiff's noncompliance, “bad faith tactics and [] baseless attacks” have “resulted in wasting defendant's resources and driving up costs in the case”).) Finally, balancing “the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard” comes out strongly in favor of dismissal. Baptiste, 768 F.3d at 216. Plaintiff's prolific, voluminous, highly redundant filings have been clogging the Court's docket for months, while affording Plaintiff more than adequate opportunity to be heard.
Simply put, Plaintiff brought this case, but he is refusing to sit for his deposition. He is wasting Defendant's and the Court's time and limited resources, while openly flouting the Court's authority to move the case forward. These circumstances warrant dismissal under Rule 41. See Henry v. Prishtina Constr. Designs, Inc., No. 17-CV-05041 (ILG) (RER), 2018 WL 5984866, at *3 (E.D.N.Y. Oct. 22, 2018) (dismissing under Rule 41(b) the lawsuit brought by pro se plaintiff who failed to appear for his deposition and a subsequent conference despite warnings from the Court that his continued failure to appear could result in dismissal), report and recommendation adopted, 2018 WL 5983378 (E.D.N.Y. Nov. 14, 2018).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiff's motions to compel and to vacate are DENIED. In addition, I respectfully recommend to Judge Nathan that this lawsuit be DISMISSED WITH PREJUDICE.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO 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 shall have fourteen (14) days (including weekends and holidays) from service of this Order and Report and Recommendation to file written objections to that portion of this document that recommends dismissal of this action with prejudice. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Nathan.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).