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finding willfulness when a pro se plaintiff failed to appear for two depositions and "remained completely silent for almost four months afterwards"
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Case No. CV-04-608 (FB) (LB).
April 17, 2007
For the Plaintiff: PATRICIA WILSON, Pro Se, Brooklyn, NY.
For the Defendant: CLAIRE BOLAND-ARELLANO, ESQ., Assistant General Counsel, Cabrini Medical Center, New York, NY.
MEMORANDUM AND ORDER
Plaintiff Patricia Wilson ("Wilson") has brought this pro se action alleging that her former employer, defendant Cabrini Center for Nursing and Rehabilitation ("Cabrini"), discriminated against her in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. Cabrini previously moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim; the Court denied that motion. See Docket Entry No. 13 (Memorandum and Order dated June 25, 2004). Cabrini, once again, moves to dismiss, this time pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), on the ground that she willfully disobeyed a court order to appear for the continuation of her deposition. For the reasons stated below, Cabrini's motion is granted and Wilson's complaint is dismissed with prejudice.
I.
Magistrate Judge Bloom held an initial conference December 2, 2004, and a subsequent conference on January 31, 2005, during which she explained the discovery process to Wilson and set a discovery deadline for May 2, 2005; on April 15, 2005, Magistrate Judge Bloom extended that deadline to July 1, 2005.
On or about April 7, 2005, Cabrini served Wilson with a notice of deposition to be conducted on April 18, 2005. See Aff. of Claire Boland-Arellano ("Boland-Arellano Aff."), Ex. C (Notice of Deposition). By letter dated July 14, 2005, Cabrini informed Magistrate Judge Bloom that Wilson (1) did not appear for that deposition; (2) informed Cabrini's counsel by telephone that she would not appear for any deposition or provide authorization for the release of her medical records; and (3) had refused delivery of mail from Cabrini on at least three occasions. Id., Ex. D (Letter to Court dated July 14, 2005).
By order dated July 28, 2005, Magistrate Judge Bloom extended the discovery deadline to September 30, 2005, and ordered Wilson to (1) execute and return all medical authorization forms by August 12, 2005, and (2) appear for deposition on September 16, 2005; Magistrate Judge Bloom warned: "Should [Wilson] fail to timely appear for her deposition . . ., I shall consider her refusal wilful and recommend that her case . . . should be dismissed with prejudice." See Docket Entry No. 28 (Order) at 3.
On September 14, 2005, Wilson called Cabrini and said that she would be unable to attend the September 16 deposition due to a doctor's appointment; Cabrini informed Magistrate Judge Bloom of Wilson's call that same day by fax, and Magistrate Judge Bloom directed Wilson to appear as previously ordered. See Docket Entry No. 30 (Order Endorsed on Def.'s Letter).
Wilson did indeed appear for her deposition on September 16, 2005, and, for the first time, provided Cabrini with the requested medical authorizations. See Boland-Arellano Aff. ¶ 9. By order dated March 17, 2006, Magistrate Judge Bloom directed Wilson to appear on May 26, 2006 for the continuation of her deposition, again warning: "Should [Wilson] fail to timely appear for her deposition . . ., I shall consider her refusal willful and recommend that her case should be dismissed with prejudice." Docket Entry No. 33 (Order).
Wilson failed to appear on May 26, 2006, see Boland-Arellano Aff. ¶ 11; moreover, she did not call Cabrini to explain her absence or otherwise communicate with Cabrini or the Court until four months later, in response to the present motion. It was only then that she informed Cabrini and the Court that she was "very ill [on May 26, 2006,] because of the medication for [her] thyroid condition." Pl.'s Aff. in Opp'n (dated Sept. 18, 2006) at 1. In support, she submitted a doctor's note dated May 26, 2006, that states, in relevant part: "The patient was seen today and was unable to attend court. The patient was not feeling well." Ex. to Pl.'s Aff. in Opp'n (Letter of Dr. Kumar Shah).
II.
The Court may dismiss a complaint for a party's failure to comply with a discovery order. See Fed.R.Civ.P. 37(b)(2)(C). In particular, Rule 37 applies to a litigant's failure to appear for her deposition. See, e.g., Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759 (2d Cir. 1990) (affirming dismissal of action, pursuant to Fed.R.Civ.P. 37, for pro se plaintiff's refusal to appear at her deposition).In deciding whether to impose sanctions under Rule 37, the Court considers the following factors: "(1) the willfulness of the noncompliant party or the reasons for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the noncompliant party had been warned of the consequences of his noncompliance." Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002) (citing Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849 (2d Cir. 1995)). "Dismissal under [Rule 37] . . . should be imposed only in extreme circumstances" where the failure to comply is due to "willfulness, bad faith, or any fault." Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986) (internal quotation marks omitted). However, "[t]he severe sanction of dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as warning has been given that noncompliance can result in dismissal." Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir. 1994). This sanction is available even against pro se litigants because "while pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988).
Wilson has now failed to appear for two depositions: the first noticed by Cabrini on April 7, 2005, and the second ordered by Magistrate Judge Bloom on March 17, 2006. Magistrate Judge Bloom explicitly warned Wilson that she would recommend dismissal of this action if Wilson failed to appear at the May 26, 2006 deposition. Not only did Wilson fail to appear on that date, she remained completely silent for almost four months afterwards and, even then, only responded when faced with Cabrini's motion to dismiss.
Standing alone, the proffered doctor's note is insufficient to excuse her absence: Apart from a broad statement that Wilson "was not feeling well" on that day, the note does not state that she was unable to notify Cabrini of her intended absence — as she had done on September 14, 2005, with respect to the prior deposition — or that she was unable to contact Cabrini to explain her absence in the months that followed. Had Wilson submitted this note shortly after her absence, the Court might reach a different conclusion; her long period of inaction, however, demonstrates a complete disregard for the very court whose power she invokes to vindicate her rights.
In light of the foregoing history, the Court finds that Wilson's failure to comply with the Court's March 17, 2006 order was not based on any misunderstanding, but rather on her willfulness and bad faith. See McDonald, 850 F.2d at 124 (affirming dismissal pursuant to Rule 37 for pro se plaintiff's refusal to answer questions at deposition, even when reminded of obligation under court order). Given Wilson's failure to comply with similar orders in a separate action before the Court, see Wilson v. Kingsbrook Jewish Med. Ctr., No. 04 Civ. 4865 (E.D.N.Y. Mar. 6, 2006) (dismissing Wilson's complaint with prejudice pursuant to Rule 37 for failure to comply with order to appear at deposition), the Court holds that there is no less drastic sanction that would be effective in this action.
CONCLUSION
The Court grants defendant's motion and dismisses plaintiff's complaint with prejudice pursuant to Federal Rule of Civil Procedure 37(b)(2)(C).