Opinion
95 Civ. 5948 (HB)
February 12, 2001
MEMORANDUM OPINION ORDER
Plaintiff brings this action for personal injuries that she alleges were the result of breast implants manufactured by Baxter Healthcare ("Baxter"). Defendant has moved to dismiss this action pursuant to F.R.C.P. 16(f), 37(b)(2)(C) and 41(b) for failure to prosecute, failure to comply with this Court's Pre-Trial Scheduling Order, or, in the alternative, to compel discovery and to award sanctions. For the following reasons, defendant's motion to dismiss is granted.
Plaintiff's case has been pending since 1995. On August 23, 2000, I held a scheduling conference to discuss the case and signed a Pre-Trial Scheduling Order. The Order set forth a discovery deadline of December 15, 2000 and a deadline for dispositive motions of January 12, 2001. At the conference, defendant gave plaintiffs counsel blank authorization forms for the plaintiff to sign, and I requested that the plaintiffs attorney return the signed forms to the defendant in a timely manner. However, despite my Order and words of caution at the pre-trial conference, no authorizations, or discovery of any sort, have been forthcoming from the plaintiff. The result has been that this case, now over five years old, has been stopped dead in its tracks, defendant having no ability to move forward in investigating any of the plaintiff's claims.
This standstill is clearly not the result of ignorance on the part of the plaintiff. To the contrary, plaintiff has been informed on a myriad of occasions of her obligations if she is interested in continuing this suit. To be specific, Baxter has made repeated requests of plaintiffs counsel both by phone and by letter. King Aff ¶ 2, 8-11. Plaintiff's counsel admits that plaintiff has been kept duly informed of the deadline, however reports that plaintiff has failed to comply with her own counsel's requests. Counsel states that he sent the blank authorizations to the plaintiff on August 23, 2000 and again on October 13, 200 but to no avail. Counsel also states that he informed plaintiff that other discovery information was needed and called plaintiff to reiterate the importance of complying with these discovery requests on September 29, 2000. On November 15, 2000, as a result of plaintiffs non-compliance, counsel for plaintiff sent a letter to the Court requesting to be relieved as counsel, which I denied. From these facts, I am forced to conclude that plaintiff's failure in this regard has been willful and without any justification.
There are several remedies in the Federal Rules for a plaintiff's failure to comply with discovery. F.R.C.P. 16(f) provides, "If a party or party's attorney fails to obey a scheduling or pretrial order, . . . the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D)." Rule 37 provides various sanctions for failing to obey an order to provide discovery including "an order dismissing the action." Where, as here, plaintiff has wilfully failed to provide even a shred of discovery and has failed to even attempt to provide any justification for this failure, dismissal under F.R.C.P. 37 is appropriate. See El-Yafi v. 360 East 72nd Owners Corp., 164 F.R.D. 12, 17 (S.D.N.Y. 1995) ("Although entry of a default judgment for violation of a discovery order is an extreme sanction, it has long been recognized as appropriate where the failure is willful and the discovery sought is material to the adverse party."). "The sanction of dismissal is appropriate when a party's failure to comply with a discovery order is due to `willfulness, bad faith or any fault." Quiles v. Beth Israel Medical Ctr., 168 F.R.D. 15, 18 (S.D.N.Y. 1996) (dismissing a pro se plaintiffs claim when she had ignored a specific discovery order on seven occasions). Here, plaintiff has effectively thwarted any progress in this action for over five months and has given no indication that she wishes to pursue the action further. I therefore have little choice but to grant the defendant's motion and dismiss the action.
CONCLUSION
For the reasons stated above, defendant's motion to dismiss this action pursuant to FRCP 37 is granted. To the extent that defendant moved for an award of monetary sanctions, this request is denied. The clerk of court is instructed to close the case.