Opinion
00 Civ. 6504 (LAK)
May 20, 2002
ORDER
Defendant moves to dismiss the complaint for failure to prosecute and/or for sanctions, including costs and attorneys' fees, for plaintiff's failure to attend a properly noticed deposition and a pretrial status conference.
There is little doubt that plaintiff has taken a fairly cavalier attitude toward his obligations in the prosecution of this action, particularly compliance with his discovery obligations. For example, and without attempting to be comprehensive, he arrived at his court ordered deposition on January 9, 2002, fired his court appointed pro bono counsel, and then — despite the fact that the deposition previously had been ordered to proceed — simply left without submitting to examination. Similarly, he failed to appear for examination on March 21, 2002 and for a scheduled pretrial conference March 25, 2002, despite awareness of both. He claims that this occurred because he assumed that his present counsel would reschedule those dates, but this is belied by the fact that his present counsel had not yet agreed to represent him and, by his own admission, did not agree to do so until April 11, 2002.
Plaintiff's behavior, of which the incidents related above are only a sample, has seriously delayed disposition of this case and cost his adversary time and money in view of their repeated preparation for or attendance at proceedings that did not go forward as a result of plaintiff's attitude. Nevertheless, he now is represented by counsel and promises to behave. In view of the preference for disposition on the merits, the Court is prepared to give him one final chance provided he pays reasonable compensation to the defendant for a fraction of the expense he doubtless has caused.
Accordingly, defendant's motion is granted to the extent that:
1. Plaintiff shall pay to defendant the sum of $700 in respect of expenses the Court finds that it incurred with respect to the deposition on January 9, 2002 and with respect to the deposition scheduled for March 21, 2002 and the pretrial conference scheduled for March 25, 2002, for neither of which did plaintiff appear and for both of which defendant's counsel prepared and appeared. The Court finds that the costs incurred by plaintiff's misbehavior well exceed that sum.
2. Plaintiff shall appear for deposition and submit to examination commencing at 9:30 a.m. on June 5, 2002 and continuing until completed. This date may not be changed absent the Court's written approval.
3. Despite the expiration of the discovery period, plaintiff may depose Messrs. Moskovick and Levine and Ms. Felix provided the depositions are conducted by telephone and concluded by June 15, 2002.
4. The joint pretrial order and any dispositive motions shall be filed on or before July 1, 2002.
5. Plaintiff is cautioned that the failure to comply in all respects with this and any other order of the Court, as well as the failure to comply to the extent required by law with any and all notices properly served on him by his adversary, may result in the imposition of sanctions which may include dismissal of this action and additional monetary awards.
The motion is denied in all other respects.
SO ORDERED.