United States District Court, Northern District of New York
July 3, 2001
DONNA JEANNE MOSS, PLAINTIFF,
ENLARGED CITY SCHOOL DISTRICT OF THE CITY OF AMSTERDAM, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge
MEMORANDUM — DECISION AND ORDER
Presently before the Court are Plaintiff's objections to, and appeals
of, decisions and orders of United States Magistrate Judge Ralph W. Smith
dated December 20, 2000 (Docket No. 329), April 3, 2001 (Docket No.
339), April 19, 2001 (Docket No. 364), and April 24, 2001 (Docket No.
367), Plaintiff's motion for summary judgment (Docket No. 343) and a
cross-motion for sanctions by the defendants from the Greater Amsterdam
School District (Docket No. 383). The Court will address these matters
A. Discovery Orders
The standard to be used by a district court in reviewing a magistrate
judge's determination of a non-dispositive issue is the "clearly
erroneous or contrary to law" standard, while dispositive matters are
reviewed "de novo." See Fed.R.Civ.P. 72; 28 U.S.C. § 636(b)(1)(A);
Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522
, 525 (2d Cir.
1990); Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp.2d 70, 74
(N.D.N.Y. 2000); Hasbrouck v. America Hous. Servs., Inc., 190 F.R.D. 42,
44 (N.D.N.Y. 1999).
Pretrial discovery matters are generally considered non-dispositive and
are therefore subject to the clearly erroneous or contrary to law
standard. See Thomas E. Hoar, 900 F.2d at 525; Hasbrouck, 190 F.R.D. at
44 (citing Doe v. Marsh, 899 F. Supp. 933, 934 (N.D.N.Y. 1995)).
Moreover, magistrate judges are given broad discretion with respect to
pre-trial discovery issues and "reversal is warranted only when that
discretion is abused." Tompkins, 92 F. Supp.2d at 74 (citing Abrams v.
General Elec. Co., No. 95-CV-1734, 1997 WL 458446, at *1 (N.D.N.Y. Aug.
"A magistrate judge's finding is clearly erroneous when it is against
the clear weight of the evidence or when the court has `the definite and
firm conviction that a mistake has been committed.'" White Mop Wringer
Co. of Canada Ltd. v. BT Capital Partners, Inc., No. 95-CV-565, 1997 WL
222380, at *2 (N.D.N.Y. April 29, 1997) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)); see also Tompkins,
92 F. Supp.2d at 74. Moreover, that "reasonable minds may differ on the
wisdom of granting [a party's] motion" does not mean that the decision is
clearly erroneous or contrary to law. Pemrick v. Stracher, No.
9-CV-849, 1992 WL 697636, at *1 (N.D.N.Y. March 27, 1992).
1. December 20, 2000 Order
Pursuant to a previous order issued by Judge Smith, Plaintiff is
precluded from serving any further interrogatories or document demands
upon Defendants. After being denied, on several occasions, permission to
file additional discovery requests, Plaintiff sought leave of the Court
to serve defendant Cotugno with in excess of 500 requests for admission.
The decision whether to allow such discovery under these circumstances is
well within Magistrate Judge Smith's broad discretion. Judge Smith's
decision to deny Plaintiff's request based on his determination that the
requests for admission were thinly veiled interrogatories designed to
avoid the effect of his previous orders was not an abuse of that
2. April 3, 2001 Decision
During the April 3, 2001 deposition of Dr. Nellie Bush, a non-party
witness, United States Magistrate Judge David R. Homer was called upon by
the parties to decide whether Plaintiff should have been precluded from
seeking information or testimony concerning certain events that occurred
after the termination of her employment. Again, the decision whether to
allow these questions is well within the broad discretion of the
magistrate judge. Upon a review of the record, the Court finds that
Judge Homer did not abuse that discretion in these circumstances in
determining that the information sought by Plaintiff was not relevant.
3. April 19, 2001 Order
By an order of April 5, 2000, Magistrate Judge Smith ordered defendant
Cotugno to respond to outstanding interrogatories no later than May 12,
2000. Mr. Cotugno's former attorneys served the ordered responses in a
timely manner on May 10, 2000. However, Plaintiff maintained that the
answers were incomplete and evasive and, on July 31, 2000, demanded a
supplemental response from defendant Cotugno's present counsel, who took
over the case in July 2000.
Following additional correspondence between the parties, a supplemental
response to the interrogatories was served on November 15, 2000.
On October 27, 2000, prior to the filing of the supplemental response,
Plaintiff made a motion to strike defendant Cotugno's answer to the
amended complaint and enter a default judgment against him as sanctions
for his alleged violation of Judge Smith's discovery order. By an order
dated April 19, 2001, Magistrate Judge Smith denied that motion.
Again, Magistrate Judge Smith's determination as to whether or not to
impose discovery sanctions under these circumstances was well within his
broad discretion. Upon a review of the record, it is the Court's
determination that his decision was not an abuse of that discretion.
B. April 24, 2001 Order
On April 20, 2001, Plaintiff filed a motion for summary judgment. At
an April 24, 2001 Status Conference with the Magistrate Judge, Defendants
requested that the summary judgment motion be continued in order to
depose Plaintiff and her witnesses before responding. The Magistrate
Judge granted their request and issued an order extending Defendants'
response time to July 31, 2001 and Plaintiff's reply time to August 31,
2001. In an order dated May 11, 2001, this Court held that Defendants'
request was actually an opposition to summary judgment under Rule 56(f)
and ordered Defendants to submit papers in compliance with that rule.
Those papers are now before the Court along with Plaintiff's reply.
Rule 56(f) states:
Should it appear from the affidavits of a party
opposing the motion that the party cannot for reasons
stated present by affidavit facts essential to justify
the party's opposition, the court may refuse the
application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other
order as is just.
Fed.R.Civ.P. 56(f). The Second Circuit has held that a court may grant a
continuance for further discovery only when the requirements of Rule
56(f) have been met. See Ruotolo v. Department of Justice, Tax Div.,
53 F.3d 4, 11 (2d Cir. 1995).
A party opposing summary judgment pursuant to Rule 56(f) is required to
"file an affidavit explaining `(1) the information sought and how it is
to be obtained; (2) how a genuine issue of material fact will be raised
by that information; (3) what efforts the affiant
has made to obtain the
information; and (4) why these efforts were unsuccessful.'" Id. (quoting
Sage Realty Corp. v. Insurance Co. of N. Am., 34 F.3d 124
, 128 (2d Cir.
In this case, Defendants have submitted detailed affidavits describing
the information that they intend to obtain from the various depositions
and how it will raise a genuine issue of fact. Plaintiff seeks relief
under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981,
1983, and 1985 for discrimination against her on the basis of her gender
and the fact that she is married to an African-American as well as acts
of retaliation against her resulting from her raising issues concerning
the treatment of minority co-workers.
Defendants' affidavits make it clear that they must have an opportunity
to depose Plaintiff and her witnesses before they will be able to oppose
Plaintiff's motion for summary judgment.
Moreover, Defendants' affidavits describe their diligent attempts to
depose Plaintiff which have been stalled in one way or another by
Plaintiff, as evidenced by the voluminous correspondence in the record.
It is the Court's conclusion that Defendants cannot be held responsible
for the delays in the discovery process in this case. Accordingly,
Defendants have satisfied Rule 56(f) and Plaintiff's motion for summary
judgment is denied without prejudice to refile once Defendants have had
an opportunity to complete additional discovery.*fn1 Moreover, Judge
Smith's Order requiring the deposition of Plaintiff will stand and the
deposition will proceed as scheduled.*fn2
Accordingly, it is hereby
ORDERED that Plaintiff's objection/appeal of Magistrate Judge Smith's
December 20, 2000 order is DENIED;
ORDERED that Plaintiff's appeal of Magistrate Judge Homer's oral
decision of April 3, 2001 is DENIED;
ORDERED that Plaintiff's objection/appeal of Magistrate Judge Smith's
April 24, 2001 order is DENIED;
ORDERED that Plaintiff's objection/ appeal of Magistrate Judge Smith's
April 19, 2001 order is DENIED;
ORDERED that Plaintiff's motion for summary judgment is DENIED without
prejudice to refile;
ORDERED that the cross-motion for sanctions by the defendants from the
Greater Amsterdam School District is DENIED;
ORDERED that Plaintiff's request for an adjournment of her deposition
ORDERED that Defendants' separate requests for attorneys' fees are
DENIED; and it is further FURTHER ORDERED that the Clerk of the Court
serve a copy of this Order on all parties by regular mail.
IT IS SO ORDERED.