Opinion
18-CV-12214 (ALC) (OTW)
05-24-2021
KIERAN KELLY, Plaintiff, v. TANVIR CHOUDHRI M.D., et al., Defendants.
To the Honorable ANDREW L. CARTER, United States District Judge:
REPORT AND RECOMMENDATION
ONA T. WANG, United States Magistrate Judge:
I. Introduction
Pro se Plaintiff Kieran Kelly brought this action against Defendants Tanvir Choudhri, MD and Mount Sinai Health Systems, Inc. for medical malpractice. Because Plaintiff has failed to comply with the Court's orders, I recommend that the above-entitled action be dismissed with prejudice for failure to prosecute under Federal Rule of Civil Procedure (“Rule”) 41(b).
II. Background
A. Multiple Counsel Have Withdrawn Their Representation of Plaintiff
In December 2018, Plaintiff filed this action pro se alleging Defendants negligently performed brain and spine surgeries on him, which resulted in cerebrospinal fluid leakage.(ECF 1; see also ECF 45 (amended complaint), ECF 52). In May 2019, before the initial case management conference, Plaintiff retained counsel, and Aubrey L. Harper, Jr. entered a notice of appearance on behalf of Plaintiff. (ECF 19). James Delbert Payne, who apparently was not associated with Harper, also requested admission pro hac vice, but never formally entered an appearance on behalf of Plaintiff. (ECF 20).
See also infra § III.B (describing previous suit, filed by Plaintiff pro se, regarding the same events in question that was dismissed without prejudice for failure to prosecute under Rule 41(b)).
Two days later, both Harper and Payne moved to withdraw from the action. (ECF 25, 26). I converted the June 4, 2019 initial case management conference to a hearing to discuss the pending motions to withdraw. Both Harper and Payne stated that they never developed an attorney-client relationship with Plaintiff and their “representation” was limited to procedural information on filing the complaint. (ECF 27; ECF 52 (Tr.)). Payne further stated that “there existed fundamental irreconcilable sort of differences” that prevented him from continuing with the case. (ECF 52 at 11). At the conference, Plaintiff stated that he wished to proceed pro se. (ECF 39). I granted the motions to withdraw in July 2019 and directed Plaintiff to the Southern District's Pro Se Office and the New York Legal Assistance Group. (ECF 39).
On August 5, 2019, I entered a discovery schedule and entered a discovery deadline of May 22, 2020. (ECF 47). I held a status conference on November 5, 2019, but Plaintiff failed to appear. (ECF 51). Plaintiff wrote and apologized for missing the conference, stating that his understanding from opposing counsel was that his appearance was not required. (ECF 55 at 3). Plaintiff also requested pro bono counsel, which the Court denied because Plaintiff had not made a showing that pro bono counsel was necessary at the time. (ECF 56). The Court further directed the parties to meet and confer regarding discovery. (ECF 56).
In December 2019, Norman Steiner and Robert Tolchin entered appearances on behalf of Plaintiff. (ECF 59, 61). For the next ten months, the parties engaged in fact discovery (albeit slowly), which included the exchange of medical records. I further extended discovery until December 11, 2020. (ECF 81).
In October 2020, Tolchin and Steiner moved to withdraw. (ECF 82, 84). The reasons for the withdrawal were filed ex parte. (ECF 85). Without disclosing their specific reasons for withdrawal, there are significant challenges for Plaintiff's theory of the case to proceed. (ECF 95). On November 4, 2020, I granted counsel's withdrawal on the grounds of irreconcilable differences. (ECF 89).
B. Two Warnings of Dismissal for Failure to Prosecute; Plaintiff's Failure to Engage in Discovery
In the same order granting counsel's withdrawal, I reiterated the previous-ordered discovery end date of December 11, 2020; there would be no further extensions to the fact discovery schedule. (ECF 89). The Court warned Plaintiff that “failure to cooperate in discovery may also result in a recommendation that the action be dismissed for failure to prosecute.” (ECF 89 (emphasis added)). I further directed parties to file a joint status letter on December 1, 2020. (ECF 89).
The one exception was that Dr. Choudhri's deposition could occur on December 18, 2020, a date jointly proposed by the parties.
In the same order, I warned that if Plaintiff failed to update the Clerk of Court with an address for service it may also result in a recommendation that the case be dismissed for failure to prosecute. (ECF 89).
On December 1, 2020, Defendants wrote that despite efforts to meet and confer with Plaintiff regarding submitting a joint letter, Plaintiff had not responded. (ECF 91). Defendants indicated that on November 10, 2020 they proposed 10:00 am, Eastern time, on December 4, 2020 for Plaintiff's deposition and that Plaintiff agreed to the date on November 18, 2020. (ECF 91).
On the agreed-upon deposition date, December 4, Defendants wrote that two hours before Plaintiff's deposition was supposed to start, Plaintiff emailed that “he was very ill and did not believe he would be able to participate in the questioning.” (ECF 92). Defendants requested an extension of the discovery schedule to accommodate Plaintiff's delayed deposition. (ECF 92).
On December 7, 2020, I directed that the parties submit a joint discovery status letter on December 14, 2020, and again warned Plaintiff that “failure to participate in discovery may result in a recommendation of dismissal for failure to prosecute.” (ECF 93 (emphasis added)). I also stated that the Defendants may request that the Court apportion costs pursuant to Rule 30(d)(2) by submitting a pre-motion conference letter in accordance with the Court's Individual Practices by December 14, 2020. (ECF 93).
On December 14, 2020, in response to the Court's December 7, 2020 order, the parties wrote that they had rescheduled Plaintiff's deposition to December 11, 2020, but after approximately three hours of questioning “Mr. Kelly indicated that he was very tired . . . and he said on multiple occasions that the lateness of the hour and lack of sleep was impacting his memory and ability to give accurate testimony.” (ECF 95). Defendants also argued that a good portion of the time was “taken up with Mr. Kelly's colloquy and non-responsive narratives.”(ECF 97 at 2; see, e.g., ECF 98-2 at 91-101). The parties agreed that Plaintiff would appear for his continued deposition on December 15, 2020. (ECF 96).
The Court has reviewed the portions of the deposition transcript and finds that Plaintiff was combative and rambling. Further, Plaintiff insulted opposing counsel as well as Dr. Choudhri. (ECF 97 at 2). This included personally attacking the character of opposing counsel. See ECF 98-4 at 40; infra n.8.
On December 15, 2020, the Court so-ordered Plaintiff's continued deposition for that day. (ECF 96). The Court further ordered that it “may apportion costs under Federal Rule of Civil Procedure 30(d)(2) for any person who impedes, delays, or frustrates the fair examination of any deponent.” (ECF 96).
On January 6, 2021, the Defendants sought a pre-motion conference to file a motion for costs and for dismissal of the action for failure to prosecute. (ECF 97). Defendants represented that at the continued deposition on December 15, 2020, the third attempt to depose Plaintiff, Plaintiff again requested an adjournment due to the late hour and lack of sleep. Plaintiff testified on the record that his fatigue impacted his ability to give testimony and refused to answer questions relevant to the lawsuit, including his compensation and medical history. (ECF 97 at 2, 3). Defendants stated that they “have been ready to proceed with the plaintiff's deposition on three occasions, and Mr. Kelly has intentionally thwarted the process each time.” (ECF 97).
E.g., ECF 98-2 at 34-36, 50 (instances of Plaintiff providing non-responsive answers). For instance, when asked if Plaintiff purchased medication on the street during his time in Ireland, Plaintiff failed to provide a yes or no answer, but instead provided a non-responsive narrative. See id. at 34-36.
C. Plaintiff Again Fails to Appear for a Scheduled Court Conference
On January 7, 2021, I held a status conference. This conference was first scheduled on October 15, 2020 when Plaintiff was still represented by counsel. (ECF 81). The Court further issued a reminder on November 4, 2020 that the parties were directed to appear on January 7, 2021. (ECF 89). This order was served on Plaintiff by mail, email, and WhatsApp messaging on November 5, 2020. (ECF 90).
Despite notice, Plaintiff did not appear at the conference. (ECF 100 (Tr.)). This was the second time in this case that Plaintiff failed to appear for a conference. See ECF 51. Defendants also attempted to call Plaintiff from the conference at +62-813-1668-1688 (an Indonesian number provided by Plaintiff), but the call resulted in an automated message, indicating that the number was not in service. (ECF 100 at 6). On the record, Defendants made additional representations about their experience litigating with Plaintiff: they stated that Plaintiff was often “not responsive, ” responding to emails ‘infrequently or intermittently.” (ECF 100 at 4). Defendants further represented that during Plaintiff's deposition he “continued to use profanity” and to “attack [the] character” of Defendants' counsel. (ECF 100 at 9). Additionally, at the deposition, Plaintiff testified that “he wasn't seeking any monetary damages and all he wanted was an apology from [Dr.] Choudhri.” (ECF 100 at 10).
Defendants served Plaintiff a copy of the transcript by email and FedEx to the address on the docket. (ECF 99, 102).
Counsel stated, “Often [Plaintiff] is not responsive. He indicates, when we can't reach him, that the problem is Indonesia, Wi-Fi, various issues. He prefers to use WhatsApp, which, of course, is more complicated to a law firm. We do send him e-mails. He gets them every once in a while, he says, and he responds to hem infrequently or intermittently.” (ECF 100 at 4).
E.g., ECF 98-4 at 40 (“Unbelievable, you [referring to counsel] are unbelievable. I don't know how you can sleep at night, you know that.... I took a couple of meds trying to kill myself because of your f***ed up c**t of a client.”)
See ECF 98-1 at 75 (“I'm not looking for money off Dr. Choudhri. I just want an apology.”).
D. Order to Show Cause & Third Warning of Dismissal for Failure to Prosecute
On April 19, 2021, after continued silence by Plaintiff, the Court issued an Order to Show Cause directing Plaintiff to respond by May 3, 2021 to Defendants' January 6, 2021 letter motion seeking costs and dismissal of the action. (ECF 103). The Court again warned that “[f]ailure to respond may result in a recommendation that the action be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41(b) and that the requested costs be awarded to Defendants.” (ECF 103 (emphasis added)). Plaintiff did not respond by May 3, 2021, and there has been no response since then.
III. Analysis
A. Applicable Law
Courts have the power, under Rule 41, to dismiss a case for failure to comply with court orders, treating such noncompliance as a failure to prosecute. See Simmons v. Abuzzo, 49 F.3d 83, 87 (2d Cir. 1995). “Courts have repeatedly found that dismissal of an action is warranted when a litigant . . . fails to comply with legitimate court directives.” Robinson v. Sposato, No. 13-CV-3334 (JFB) (WBW), 2014 WL 1699001, at *1 (E.D.N.Y. Apr. 24, 2014) (quotations omitted). In considering whether to dismiss an action, courts in this district consider five factors:
1) the duration of plaintiff's failures or non-compliance; 2) whether plaintiff had notice that such conduct would result in dismissal; 3) whether prejudice to the defendant is likely to result; 4) whether the court balanced its interest in managing its docket against plaintiff's interest in receiving an opportunity to be heard; and 5) whether the court adequately considered the efficacy of a sanction less draconian than dismissal.Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000). No one factor is dispositive in making this determination. Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009). “Dismissal of a pro se litigant's action may be appropriate ‘so long as a warning has been given that non-compliance can result in dismissal.'” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (quoting Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994)).
B. Application
Considering the Baffa factors, Plaintiff's action merits dismissal with prejudice because of his failures to respond to Court orders and to cooperate in discovery, including failing repeatedly to appear for his deposition.
Considering the first, second, and fourth factors, Plaintiff has repeatedly flouted Court orders. As an initial matter, this action was previously filed in this District under the number 18-CV-1054 and was assigned to the Hon. Jesse M. Furman. Judge Furman dismissed the action without prejudice under Rule 41(b). See Kelly v. Choudhri, No. 18-CV-1054 (JMF), ECF 23 (S.D.N.Y. Oct. 4, 2018). In that action, Plaintiff failed to attend the initial pretrial conference and failed to respond to an order to show cause regarding his failure to attend the conference. See id. After that dismissal, Plaintiff refiled his claims in this action. Here, Plaintiff has repeated the same failures to attend conferences and respond to court orders. Those failures are not for lack of notice, and this Court has provided three warnings to Plaintiff that the action may be dismissed for failure to prosecute. (ECF 89, 93, and 103).
Further, Plaintiff has not updated the docket with a current address, which is an independent reason to dismiss the case. See Laney v. Ramirez, No. 10-CV-9083 (JGK), 2011 WL 6594491, at *1 (S.D.N.Y. Dec. 22, 2011) (“[A] case cannot proceed without a current address for the plaintiff and the failure to maintain such an address with the Court is a ground for failure to prosecute.”). Plaintiff's last known address is abroad.
Considering prejudice to the Defendants, the prejudice has been high. The underlying events took place in 2014, and seven years later, the Defendants are still litigating those events, without much to show for their efforts because of Plaintiff's failure to move his case forward. The Court has also had the benefit of reviewing Plaintiff's prior counsel's reasons for withdrawal and concludes there is no feasible way that this case can be litigated on its merits without severe prejudice to Defendants. (ECF 85).
Further, Plaintiff's failure to appear for properly noticed depositions - causing repeated adjournments - would be independent grounds for dismissal under Rule 41(b) (and Rule 37).
See, e.g., Manigaulte v. C.W. Post of Long Island University, 533 Fed.Appx. 4, 6-7 (2d Cir. 2013) (affirming dismissal because pro se plaintiff refusal to sit for a deposition); Zouarhi v. Colin Service Systems, Inc., 223 F.R.D. 315, 316 (S.D.N.Y. 2004) (dismissing action for plaintiff's failure to appear for his deposition).
Plaintiff's actions have made it impossible for the case to be prosecuted. Even though Plaintiff “appeared” via videoconference for his deposition, his obstructive behavior amounts to failure to proceed with the deposition and, thus, failure to prosecute the action. See, e.g., Watkins v. Matarazzo, No. 13-CV-2477 (LGS) (SN), 2015 WL 13745762, at *4 (Sept. 22, 2015 S.D.N.Y.), report and recommendation adopted, 2016 WL 3351079 (Jun. 14, 2016) (dismissing action because of plaintiff's obstructive behavior at his deposition, which included speaking over opposing counsel, refusing to answer questions, and forcing rescheduled depositions). On Plaintiff's request, Defendants rescheduled the Plaintiff's deposition three times. Each time, Plaintiff indicated that he was too tired to accurately testify. When Plaintiff did testify, he provided non-responsive narratives. I warned Plaintiff that “failure to participate in discovery may result in a recommendation of dismissal for failure to prosecute.” (ECF 93, 96). This “delay here has functioned as a complete block to moving this litigation forward, despite the efforts of defendants and the Court to do so.” Kent v. Scamardella, No. 07-CV-0844 (SHS), 2007 WL 3085438, at *2 (S.D.N.Y. Oct. 18, 2007).
The Court has considered the efficacy of a sanction less draconian than dismissal, and given that this action has already been dismissed once without prejudice, Plaintiff's continued obstructive behavior (notwithstanding a prior dismissal), and Plaintiff's counsel's reasons for withdrawal, the Court concludes that dismissal with prejudice, although more severe, is appropriate here.
IV. Conclusion
For the reasons stated above, I recommend that the action be dismissed with prejudice for failure to prosecute under Rule 41(b).
The Court will address Defendants' request for costs in a separate order.
V. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Andrew L. Carter, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Carter. If Plaintiff wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, he should request copies from Defendants. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (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. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Defendants are directed to email a copy of this Report and Recommendation to the pro se Plaintiff and file proof of service within three days.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se Plaintiff.