directing plaintiff to appear at a deposition on a date certain.
Plaintiff admits that he twice failed to appear for his deposition. He states, however, that he was in "fear of being deposed without an attorney, without those documents which [he] believed were necessary to attend the deposition." He further states that his failure to appear was not the result of any "intentional disregard for [his] obligations," but because he was not "entirely familiar with the consequences of failing to appear for a deposition" and that he has now been advised by attorneys whom he consulted that he must appear. Affidavit of Bernardo J. Mercado dated October 3, 1997, PP 3-5.
Fed. R. Civ. P. 37(d) provides that if a party fails to appear for a properly noticed deposition, the court "on motion may make such orders in regard to the failure as are just," including orders dismissing the action or imposing any of the other sanctions listed in paragraphs (A), (B) and (C) of Fed. R. Civ. P. 37(b)(2). "Dismissal with prejudice is a harsh remedy to be used only in extreme situations..., and then only when a court finds willfulness, bad faith, or any fault on the part of the prospective deponent." Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir. 1994)(quoting Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990)), cert. denied, 499 U.S. 943, 113 L. Ed. 2d 459, 111 S. Ct. 1404 (1991). Although this sanction may be imposed even on pro se litigants, see 29 F.3d at 50, the Second Circuit has cautioned district courts to exercise particular restraint when considering the imposition of sanctions on pro se litigants. Baker v. Ace Advertisers' Svc., Inc., 153 F.R.D. 38, 40 (S.D.N.Y. 1992). Dismissal is appropriate only if alternative, less drastic sanctions are inappropriate, see, e.g., John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 845 F.2d 1172, 1176 (2d Cir. 1988); Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930 (2d Cir. 1988), and the court has warned the pro se litigant that this sanction might result from continued misconduct. See, e.g., Valentine v. Museum of Modern Art, 29 F.3d at 49; Bobal v. Rensselaer Polytechnic Institute, 916 F.2d at 764.
Plaintiff's justification for his misconduct herein is not particularly credible, given his prosecution of his case to this point, which has shown knowledge of legal procedures, and given defendant's warning to him after his first failure to appear. Even taking plaintiff at his word, it is irrelevant whether he was "extremely familiar" with the consequences of failing to appear if he knew he was required to do so. On the other hand, his misconduct was not so extreme as to warrant dismissal, and there are clearly less drastic measures to rectify the situation. Defendant asks that, if this court elects not to dismiss this case, plaintiff should at least be ordered to appear for his deposition on a date certain, and plaintiff has indicated his intention to do so.
Defendant also requests that plaintiff be ordered to pay expenses caused by the failure. Fed. R. Civ. P. 37(d) provides that "the court shall require the party failing to act . . . to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." However, defendant herein has not met its burden of documenting the sum requested. Defendant has not supplied any time records which are a prerequisite to recovering attorney's fees in this circuit, see, e.g., New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983), nor any evidence to substantiate its attorney's claim that her time should be charged at $ 150 per hour. See Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997) (citing Blanchard v. Bergeron, 489 U.S. 87, 94, 103 L. Ed. 2d 67, 109 S. Ct. 939 (1989)); Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983)); Envirosource, Inc. v. Horsehead Resource Dev. Co., 981 F. Supp. 876, 1998 U.S. Dist. LEXIS 11, No. 95 Civ. 5106 (TPG) (SEG), slip op. at 9 (S.D.N.Y. Jan 5, 1998). Defendant does enclose invoices from the court reporter who was paid $ 65 on each occasion. Affidavit of Elizabeth G. Ellis P 15.
Plaintiff is hereby ORDERED to schedule his deposition with defendant to take place prior to January 20, 1998. Plaintiff is further ORDERED to pay defendant by January 30, 1998 the $ 130 in expenses occasioned by his failure to appear at the depositions.
Plaintiff is warned that, if he fails to appear at his deposition on the agreed-upon date, his case will be dismissed and defendant will be awarded the entirety of its expenses incurred.
Dated: New York, New York
January 8, 1998
SHARON E. GRUBIN
United States Magistrate Judge