Opinion
97 Civ. 3918 (LTS) (HBP)
February 4, 2002
OPINION AND ORDER
The Court has received Magistrate Judge Pitman's Reportand Recommendation (the "Report") which recommends that the Court grant defendants' motion for sanctions against plaintiff-intervenor Natalie Jenkins. There have been no objections made to the Report.
Judge Pitman issued the within Report and Recommendation because 28 U.S.C. § 636(b)(1)(A) excepts class certification issues from the non-dispositive matters over which a Magistrate Judge can exercise plenary jurisdiction. Under 28 U.S.C. § 636(b)(1)(A), a Magistrate Judge does not have the authority to issue an order concerning "maintenance of a class action." See Langley v. Coughlin, 715 F. Supp. 522, 529 (S.D.N.Y. 1989) (appropriate for magistrate judge to issue report and recommendation addressing modification of class configuration); cf. Santelices v. Cable Wiring S. Fla. Cable Contractors, Inc., No. 98-C7489, 2001 U.S. Dist. LEXIS 6787, at *6 (S.D. Fla. Mar. 7, 2001) (notification of class action to potential opt-in plaintiff not considered to qualify as "maintenance" within the statute). Fed.R.Civ.P. 72(b) requires a Magistrate Judge to issue a report and recommendation for dispositive motions, whereas Fed.R.Civ.P. 72(a) authorizes the Magistrate Judge to enter orders in nondispositive matters. The present motion concerns a nondispositive matter. Given the tension between 28 U.S.C. § 636(b)(1)(A) and Rule 72(b), it appears that Judge Pitman's approach was appropriate. Regardless. the Court's standard of standard of review is the same for an unopposed report and recommendation and a nondispositive matter referred to a Magistrate Judge. "A judge may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A).) As no opposition was interposed here. review for clear error is appropriate under the statute and the rule.
In reviewing a report and recommendation, the Court "may accept, reject, or modify, in whole or in part. the findings or recommendations made by the magistrate." 28 U.S.C.A. § 636(b)(1)(C) (West 2001). The Court reviews the magistrate's findings under the "clearly erroneous or contrary to law" standard when no objections have been made by either party. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (court is required to conduct review de novo only to portions of the magistrate's recommendation to enforce summonses to which a party has objected); St. Louis v. McClellan, No. 91-C4343, 1993 U.S. Dist. LEXIS 8850, at *3 (S.D.N.Y. June 30, 1993) aff'd.22 F.3d 1090 (2d Cir. 1994) (court adopts portions of report that are not "clearly erroneous").
Magistrate Judge Pitman's well-reasoned and thoughtful opinion appropriately resolves this discovery-related matter. The Court has carefully reviewed the Report and has determined that there is no clear error. The Court adopts the Report and Recommendation for the reasons stated therein. Accordingly, defendants' application for sanctions is granted to the extent of striking Ms. Jenkins as a named plaintiff but permitting her to continue to participate in this action as an unnamed class member.
TO THE HONORABLE LAURA TAYLOR SWAIN, United States District Judge,
I. Introduction
At a conference held in this matter on November 21, 2000, defendants moved orally for sanctions against plaintiff-intervenor Natalie Jenkins pursuant to Fed.R.Civ.P. 37(b) based on Ms. Jenkins's failure to comply with my Order directing that she submit to a psychiatric examination by defendants' expert. For the reasons set forth below. I respectfully recommend that the motion be granted to the extent of striking Ms. Jenkins as a class representative but permitting her to remain in this action as a class member.
Since class certification issues are excepted from the non-dispositive matters over which a Magistrate Judge can exercise plenary jurisdiction, 28 U.S.C. § 636(b)(1)(A). I believe that defendants' application is properly addressed by a report and recommendation.
II. Facts
This is a certified class action in which plaintiffs challenge the sufficiency of the procedures used by the New York City Housing Authority ("Housing Authority") to terminate the tenancies of individuals with mental disabilities. Plaintiffs claim that the Housing Authority's procedures fail to accommodate the needs and safeguard the rights of mentally disabled tenants and. thereby, violate the Due Process Clause of the Fourteenth Amendment, Title 2 of the Americans With Disabilities Act. 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. the Fair Housing Amendments Act, 42 U.S.C. § 3601 et seq. and 42 U.S.C. § 1983. Plaintiffs seek injunctive and declaratory relief and damages.
On or about April 10, 2000, I First discussed with counsel the procedures to be used for the conduct of mental examinations of the named plaintiffs pursuant to Fed.R.Civ.P. 35. At that time I directed that all requests for Rule 35 examinations be initiated by formal notice and that all such examinations be tape recorded to ensure that they were conducted appropriately. No objections to this Order were filed.
Plaintiff Natalie Jenkins' Rule 35 examination was initially noticed for July 25, 2000. The examination was scheduled to be conducted at Ms. Jenkins' apartment with her counsel present. That examination could not proceed, however, because Ms. Jenkins fled from her apartment at the time of the examination in an apparent attempt to avoid the examination.
As a result of Ms. Jenkins' conduct. I issued an Order on August 18, 2000 directing that Ms. Jenkins appear for a mental examination at a time and date to be mutually agreed upon by counsel, defendants' expert and Ms. Jenkins. I declined to impose sanctions at that time because there was substantial evidence in the record that Ms. Jenkins suffers from a mental disturbance and no evidence that her failure to appear for her examination was volitional. No objections to this Order were filed.
Ms. Jenkins' examination was rescheduled for September 5, 2000. At that time, defendants' expert, along with Ms. Jenkins' counsel, attempted to enter Ms. Jenkins' apartment to conduct the examination. Although she was in the apartment. Ms. Jenkins refused to admit anyone to her apartment.
Counsel initially raised the issue of Ms. Jenkins' failure to submit to a Rule 35 examination in correspondence that resulted in a discovery conference on November 21, 2000. After hearing from counsel at that conference. I directed that both sides submit letter briefs addressing the appropriate resolution of the dispute.
III. Analysis
There can be no dispute in this Circuit that "discovery orders are meant to be followed [and that 'a] Party who flouts such orders does so at his peril" Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995). (quoting Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 73 (2d Cir. 1988)). See also New Pacific Overseas Group (USA) Inc. v. Excal Int'l Dev. Corp., No. 99 Civ. 2436 (DLC). No. 99 Civ. 3581 (DLC), 2000 WL 97358 at *4 (S.D.N.Y. Jan. 27, 2000).
Plaintiffs' principal argument in opposition to an award of sanctions is that a Rule 35 examination is inappropriate in this matter. The time for such an argument, however, has passed. "The propriety of the discovery sought is not in issue at the time sanctions are being imposed under Rule 37(b). That question will have been decided when the court ordered the discovery." 8A Charles Wright, Arthur Miller Richard Marcus, Federal Practice Procedure, § 2289 at 670-71 (2d ed. 1994), (citing, inter alia Interstate Cigar Co. v. Consolidated Cigar Co., 317 F.2d 744, 746 (2d Cir. 1963); Independent Productions Corp. v. Loew's Inc., 30 F.R.D. 377, 380 (S.D.N.Y. 1962)). Since plaintiffs never challenged my Order directing that Ms. Jenkins appear for a Rule 35 examination, they cannot do so now.
As a secondary argument, plaintiffs contend that sanctions are inappropriate because Ms. Jenkins' conduct was not willful. In support of their argument, plaintiffs cite, among other things. defendants' expert report which concludes that Ms. Jenkins is incompetent and "might" require institutionalization:
I have taken the opportunity to review materials pertaining to [Ms. Jenkins], including her tenant file, social services division file, and administrative/legal file. These records indicate that Ms. Jenkins has a long history of being reclusive and going to great lengths to avoid contact with her neighbors and others; accordingly, very little is known about her . . .
The only meaningful information regarding [Ms. Jenkins'] condition is provided by a psychiatric report, dated January 26, 1998, submitted by a psychiatric consultant to the New York City Department of Social Services. The psychiatrist, Howard S. Forster, M.D., who actually did examine Ms. Jenkins after police forced entry into the apartment, noted that she was very paranoid, evasive and pervasively distrustful. Her hostile aloofness interfered with his ability to complete the psychiatric examination in many respects. Nonetheless. Dr. Foster concluded that she was suffering from a chronic paranoid psychosis. probably Paranoid Schizophrenia. I would disagree with his diagnosis of a psychotic condition; the findings are more suggestive of a non-psychotic condition; the findings are more suggestive of a non-psychotic personality disorder. i.e., Paranoid Personality Disorder.
* * *
As a result of her paranoid condition, Ms. Jenkins would never have self-identified as someone with a mental disability requiring any accommodation. Like'.vise, she would avoid the eviction proceedings and fail to collaborate or communicate with her own lawyers in this lawsuit. Accordingly, Ms. Jenkins appears to be incompetent.
[T]he question remains whether, in view of her pervasive paranoid symptomatology. her needs and the safety of those around her might be better addressed by placement in a mental health facility, where treatment, monitoring and timely intervention could be provided for her.
(Exhibit C to the Letter of Elizabeth Benjamin, Esq. dated November 28, 2000). Although defendants challenge the adequacy' of plaintiffs' showing of impairment. the fact that defendants' own expert. on the limited information available to him, has concluded that Ms. Jenkins' is impaired is persuasive. Therefore, I conclude that Ms. Jenkins' failure to comply with my Order was not intentional.
Nevertheless, that conclusion does not end the matter. The fact remains that defendants have been deprived of discovery to which they are entitled. and some remedial action is appropriate. Given Ms. Jenkins' prior history of resisting examination by defendants' expert and her mental state, a further Order directing that she submit to a Rule 35 examination would, in all probability, accomplish nothing. In addition. given the fact that Ms. Jenkins is a resident of public housing and has been represented in this matter by the Legal Aid Society, it appears that she would not be able to pay any meaningful monetary sanction. Finally, the total dismissal of Ms. Jenkins' claim would be unduly harsh because it appears that the violation was not willful and dismissal would, effectively. disentitle her from seeking to vindicate claimed federal rights on the basis of what appears to be a serious mental condition.Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986) (drastic, case dispositive sanctions are ordinarily not imposed in the absence of "'willfulness, bad faith or any fault.'"). See also Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990).
Under Rule 37(b)(2). the Court is authorized to punish a failure to comply with a discovery Order with any sanction that is "just." See generally Volkart Bros. v. M/V "Palm Trader", 130 F.R.D. 285, 290 n. 10 (S.D.N.Y. 1990) ("Rule 37 contemplates flexible application tailored to the particular circumstances of each case."). The posture of this action as a certified class action permits the imposition of a sanction which, I believe, fits the facts of this case, namely. striking Ms. Jenkins as a class representative but permitting her to continue as an unnamed class member. This sanction is appropriate for several reasons.
First, this relief will remedy the consequences of Ms. Jenkins' failure to comply with my discovery Order. Defendants will not be forced to litigate against a party who has improperly failed to provide discovery.
Second, this relief does not disentitle Ms. Jenkins from judicial relief due to what appears to be non-volitional conduct. Rather, if the action succeeds, she will receive the same benefits that other class members receive.
Third, this relief will ensure that the claims and defenses asserted by the class representatives are typical and that the class representatives are appropriate. As a result of her failure to comply with my discovery Order. Ms. Jenkins is subject to being cross-examined on the reasons for her recalcitrance and is also subject to the fact-finder's drawing an adverse inference from her failure to submit to discovery. Striking her as a class representative eliminates these issues. Norman v. Arcs Equities Corp., 72 F.R.D. 502, 506 (S.D.N.Y. 1976) ("One who will not comply wholeheartedly and fully with the discovery requirements of modern federal practice, is not to be regarded by this Court as one to whom the important fiduciary obligation of acting as a class representative should be entrusted."); Darvin v. International Harvester Co., 610 F. Supp. 255, 257 (S.D.N.Y. 1985) ("[P]laintiff's failure to fully comply with reasonable discovery requests . . . indicate that he is not suitable to fulfill the fiduciary obligations of a class representative."). See also Hochberg v. Howlett, No. 92 Civ. 1822 (RPP), 1994 WL 9677 at *2 (S.D.N.Y. Jan. 10, 1994).
Finally, striking Ms. Jenkins as a class representative will have no adverse effect on the action itself. There are currently eleven (11) named class representatives, and plaintiffs make no argument that there is something unique about Ms. Jenkins as a class representative. Since there is no reason to believe that the remaining class representatives are unable to represent the class. striking Ms. Jenkins as a class representative will not leave the class unrepresented or leave the action at a dead end.
Indeed, if there was something unique about Ms. Jenkins' claim, she would probably be an inappropriate class representative on the ground that her claim was atypical.
IV. Conclusion
Accordingly, for all the forgoing reasons. I respectfully' recommend that defendants' application for sanctions be granted to the extent of striking Ms. Jenkins as a named plaintiff but permitting her to continue to participate in this action as an unnamed class member.
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of this Report to file written objections. See also Fed.R.Civ.P. 6(a) and 6(e). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, United States District Judge, 40 Centre Street, Room 426, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO OBJECT WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Am, 474 U.S. 140 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); 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. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Dated: New York, New York March 28, 2001
SO ORDERED
_______________________________ HENRY PITMAN United States Magistrate Judge