Opinion
No. 03 Civ. 5688 (DLC).
October 25, 2004
MEMORANDUM OPINION ORDER
On July 28, 2004, defendants in the above-referenced employment discrimination action served a motion to dismiss pursuant to Rules 37(d) and 41(b), Fed.R.Civ.P., on plaintiff pro se John Solomon. Pursuant to Rule 37(b) (2) (B), Fed.R.Civ.P., defendants' motion seeks in the alternative to preclude the plaintiff from introducing evidence to support his purported claims. Defendants argue that plaintiff has failed to prosecute his action diligently, willfully refused to participate in the discovery process, engaged in a pattern of delay and bad faith, and prejudiced defendants' ability to prepare their defense to plaintiff's claims. An Order of August 23 required that any opposition to this motion be submitted by September 24. As of today's date, plaintiff has not opposed the motion.
Rule 37(d), Fed.R.Civ.P., provides that if a party fails to attend his own deposition, serve answers to interrogatories, or respond to requests for inspection, a court has the discretion to, among other things, refuse to allow the disobedient party to support designated claims, prohibit that party from introducing designated matters in evidence, stay the proceedings, dismiss the action, and/or render a judgment by default against the disobedient party.
Rule 41(b), Fed.R.Civ.P., permits a defendant to move for dismissal of an action when a plaintiff fails to prosecute, fails to comply with the Federal Rules of Civil Procedure, or disobeys a court order.
During a June 3, 2004 telephone conference, plaintiff was ordered to, by June 11, serve responses to document demands and answers to interrogatories first served on him in January 2004. During the June 3 conference, plaintiff was advised by the Court that failure to comply with discovery could warrant the dismissal of his complaint. On June 7, the plaintiff provided some documents in response to the document request. According to the defendants, as of today's date, plaintiff has not provided interrogatory responses and only incomplete responses to the document demands. Plaintiff has also failed to update certain responses to previous document requests or to return his executed original deposition transcript that was provided to him on June 3 with the request that it be returned within 30 days of his receipt of the document. Defendants only learned of plaintiff's current employment from deposing a witness for the plaintiff.
A district court has the inherent power to dismiss a case with prejudice for lack of prosecution pursuant to Rule 41(b), Fed.R.Civ.P. Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998). A court also has the power to dismiss a complaint for failure to comply with a court order or comply with discovery requests.See Rules 37(b) (2) and 37(d), Fed.R.Civ.P.; Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995); Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990). Dismissal, however, is a harsh remedy warranted by extreme circumstances, Martens v. Thomann, 273 F.3d 159, 179 (2d Cir. 2001), and should be used only where the party has demonstrated "willfulness, bad faith, or any fault" in the course of discovery, Bobal, 916 F.2d at 764 (citation omitted). Courts should also be more hesitant to dismiss cases brought by pro se litigants. Lucas v. Miles, 84 F.3d 523, 535 (2d Cir. 1996). Nevertheless, it is a plaintiff's obligation to move a case to trial, and his or her failure to do so in a reasonable manner may result in dismissal with prejudice. See U.S. ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 255 (2d Cir. 2004). The Second Circuit assesses dismissal for failure to prosecute or failure to comply with discovery requests and orders in light of the record as a whole and according to five factors: (1) the duration of plaintiff's failure to prosecute or comply with a court order; (2) whether plaintiff has received sufficient notice that failure to comply would result in dismissal; (3) whether defendants are likely to be prejudiced by further delay; (4) whether the district court has examined the balance between "alleviating court calendar congestion" and protecting a plaintiff's right to due process; and (5) the appropriateness of lesser sanctions. Martens, 273 F.3d at 180 (citation omitted).See also Spencer, 139 F.3d at 112-13.
While the pro se plaintiff in the instant action has failed for several months to adhere to court orders and properly participate in discovery, dismissal of the plaintiff's complaint is not warranted at this stage. Plaintiff has not had sufficient notice from the Court that his failure to comply with defendants' discovery requests would result in the dismissal of this action. Lesser sanctions are also more appropriate. Because of these less severe sanctions, defendants will not suffer additional, substantial prejudice.
It is hereby
ORDERED that plaintiff has until November 5 to execute and return his original deposition transcript that was provided to him on June 3. If plaintiff fails to return the deposition, it will be deemed binding in its present form.
IT IS FURTHER ORDERED that plaintiff has until November 5 to fully comply with defendants' discovery requests as well as update any responses or information plaintiff has previously provided to the defendants. If plaintiff fails to so comply, he will not be entitled to rely, either in summary judgment practice or at trial, on any information not already produced to the defendants that he was required to produce in response to these discovery requests.
IT IS FURTHER ORDERED that any additional failure to comply with a court order in this action will result in the dismissal of the action with prejudice.
IT IS FURTHER ORDERED that defendants' motion for summary judgment is to be submitted by November 19. Opposition is due December 17. Any reply is to be filed by January 7, 2005. A notice for pro se litigants regarding opposition to a summary judgment motion is attached.
IT IS FURTHER ORDERED that when filing any papers with the Court, the parties shall provide one courtesy copy to Chambers by sending it to this Court's Pro Se Office, Room 230, United States Courthouse, 500 Pearl Street, New York, New York 10007.
SO ORDERED.
NOTICE FOR PRO SE LITIGANTS REGARDING OPPOSITION TO A SUMMARY JUDGMENT MOTION
See McPherson v. Coombe, 174 F.3d 276 (2d Cir. 1999).
A motion for summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56(e) says:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
(Emphasis supplied.)
Pursuant to Rule 56, any fact asserted in the motion for summary judgment that is supported by evidence that would be admissible at trial will be taken as true, unless the opponent contradicts that fact with evidence that is also admissible at trial. Admissible evidence may take the form of documents or affidavits. An affidavit must be made by someone with personal knowledge of the facts described in the affidavit and the person making the affidavit must swear that its contents are true.