Opinion
02CV203.
March 1, 2004
Report Recommendation
The defendant, Grey Line Tours ("GLT") has filed a motion to dismiss the complaint in this case due to an alleged failure of the plaintiff's counsel to comply with discovery orders. In the alternative, the defendant seeks a court order awarding compelling the plaintiff to comply with discovery requests, a modification of the scheduling order, and other sanctions. (Docket No. 29).
Background
The plaintiff, Tijuana M. Scarbrough ("Scarbrough"), brings this action asserting that GLT discriminated against her because of her race. She alleges that one of her co-workers rubbed his penis on her on various occasions and that she complained to GLT about this conduct. She also alleges that her co-workers used racial slurs against her. Finally, Scarbrough asserts that she was physically threatened. (Docket No. 1, ¶ 19).
GLT cites to the plaintiff's failure to respond to a document demand and the submission of an unverified interrogatory response which prompted an initial motion to compel. That motion was eventually withdrawn after the plaintiff took steps to respond to discovery demands. The defendant also cites to the fact that the plaintiff's counsel and the plaintiff left the plaintiff's deposition before it was completed. (Docket No. 31). It appears that the plaintiff's counsel objected to the defense counsel questioning the plaintiff regarding documents without providing plaintiff's counsel a copy of the document to read along during the questioning. In this regard, the plaintiff's counsel was relying on a guideline published by Hon. Leslie Foschio with respect to depositions. That guideline, which the plaintiff's counsel asserts reflects local customary practice, requires that copies of documents presented to the witness be made available to opposing counsel so that counsel can follow along with the questioning.
The Court notes that plaintiff's counsel has failed to appear for at least one Court appearance in this case. In addition, the plaintiff has advised the Court that she has had difficulty communicating with her counsel on occasions. On October 24, 2003, the plaintiff and plaintiff's counsel, as well as defense counsel, appeared before the Court, at which time these issues were discussed. It appeared at that time that plaintiff and plaintiff's counsel had communicated.
Discussion
Defendants seek to have the complaint dismissed under Rules 37 and 41 of the Federal Rules of Civil Procedure. Rule 37(b)(2) provides that "[i]f a party or an officer, director, or managing agent of a party . . . fails to obey an order to provide or permit discovery . . . or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . . (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence." Rule 41(b) provides that a dismissal based upon a failure of a party to comply with a court order is a dismissal on the merits.
Dismissal under either Rule 37 or Rule 41 is a harsh sanction that is to be used only in extreme situations. See Connell v. City of New York, 230 F. Supp.2d 432, 435-436 (S.D.N.Y.,2002);Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988) 436 (stating that although "preclusion of evidence and dismissal of the action are harsh remedies and should be imposed only in rare situations, they are necessary to achieve the purpose of Rule 37 as a credible deterrent"). Before a court can dismiss an action under these rules, it must: (1) find willfulness, bad faith, or fault on the part of the party refusing discovery, and (2) give notice, especially to a pro se litigant, that violation of the court's order will result in dismissal of the case with prejudice. Connell, 230 F. Supp. at 435-436 citing Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995).
Under the facts and circumstances present in this case, the extreme sanction of dismissal is not warranted. Although plaintiff's counsel's conduct in this case may not have been ideal, it is not wilful and bad faith conduct which warrants dismissal. The original motion to compel was withdrawn. At the October 24, 2003 conference, the Court addressed the plaintiff's counsel's failure to appear for a previous appearance. With respect to the plaintiff's deposition, by way of a separate Decision Order the Court has directed that the plaintiff submit to a new deposition and that at the deposition defense counsel shall provide the plaintiff's counsel with copies of any documents presented to the plaintiff for questioning so that plaintiff's counsel can follow along. While not a per se rule, such a practice appears to be reasonable.
The defendants do not seek lesser sanctions. Indeed, the defendant contends that lesser sanctions would not effectuate any of the goals of Rule 37. (Docket No. 30 at page 7). This Court agrees.
Conclusion
Based on the above, it is recommended that the motion to dismiss (Docket No. 29) be denied.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties.
ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten(10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as WDNY Local Rule 72(a)(3). FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and WDNY Local Rule 72(a)(3).
Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. SeePatterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to WDNY Local Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3)may result in the District Court's refusal to consider the objection.
So ordered.