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September 23, 2002


The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge


Plaintiff Kieran Connell, proceeding pro Se, served the defendant City of New York with a second Amended Complaint on May 26, 2001,*fn1 alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12001 et seq. ("ADA"). On July 9, 2001, defendants*fn2 moved to dismiss the Amended Complaint and on January 8, 2002, defendants' motion was granted in part and plaintiff's Title VII claims and ADA discrimination claims were dismissed. See Connell v. City of New York, No. 00 Civ. 6306, 2002 WL 22033, at *3-4 (Jan. 8, 2002). The only surviving claim is plaintiff's ADA retaliation claim against the City of New York.*fn3 See id. at *4.

Defendant now moves to dismiss the action pursuant to Rules 37 and 41 for failure to comply with the rules of discovery and failure to prosecute. Plaintiff, in turn, has moved to strike defendant's Answer as untimely under Rules 12(f), 6(b)(1), 6(b)(2) and 15(a). For the following reasons, defendant's motion is granted and This case is dismissed. Such dismissal will be stayed, however, for a period of thirty days from the date of this Opinion to afford plaintiff one final opportunity to cure his non-compliance. Plaintiff's motion to strike defendant's Answer is denied.


At an initial conference held on January 14, 2002, this Court set a discovery deadline of May 17, 2002. See Transcript of January 14, 2002 Conference ("Tr."), Ex. A to the Declaration of Donald C. Sullivan, Assistant Corporation Counsel, in Support of Defendant's Motion to Dismiss Pursuant to Federal Rules 37 and 41 ("Sullivan Decl."), at 15. At this conference, details of plaintiff's ADA retaliation claim were fleshed out to give defendant a better understanding of plaintiff's grievances including the protected activity and the alleged retaliatory acts. See Tr. at 4-12. Defendant informed the Court that it had not yet filed an Answer and sought direction regarding the same. See id. at 17 (Mr. Sullivan: I am confused as to how to answer the complaint because so much of it has been dismissed. Do you want me to file a formal answer, I assume, and [sic] based on the information I received this afternoon? The Court: Yes, that's fine. Okay.). The case was referred to Magistrate Judge Frank Maas for settlement. See id. at 16.

Judge Maas scheduled a settlement conference for April 12, 2002. See March 8, 2002 Letter from Donald Sullivan to Kieran Connell, Ex. B to Sullivan Decl. Hoping to take plaintiff's deposition before the settlement conference, the City served plaintiff with discovery requests on March 8, 2002, and noticed plaintiff's deposition for April 9, 2002. See id. The settlement conference did not go forward on April 12, 2002, but was adjourned to April 24, 2002. See April 8, 2002 Letter from Donald Sullivan to Judge Maas, Ex. C to Sullivan Decl. On April 8, 2002, plaintiff advised defendant that he would be unable to be deposed in New York City prior to April 24, 2002. See Sullivan Decl. ¶ 8. The settlement conference was again adjourned to the afternoon of May 17, 2002, and plaintiff's deposition was re-scheduled for that morning. See id. ¶ 12. Because plaintiff was not deposed by May 17, the settlement conference was once again adjourned to May 29, 2002. See Sullivan Decl. ¶¶ 22-23.

In response to a letter dated April 8, 2002 from Kieran Connell to this Court requesting that his deposition be conducted telephonically or in writing due to financial constraints, Sullivan wrote the Court explaining why such request should be denied. See April 12, 2002 Letter from Donald Sullivan, Ex. D to Sullivan Decl. (stating that a telephonic deposition would prevent defense counsel from observing plaintiff's demeanor and would encumber the production of documents during the deposition) In this letter, Sullivan also informed the Court that plaintiff verbally raised the issue of amending his complaint once again. See id. at 4. With regard to the filing of an Answer, Sullivan wrote: "I note that defendant has not yet filed an Answer to the Amended Complaint, as it was restated by plaintiff at the January 14, 2002 conference. Defendant respectfully requests guidance from the Court as to whether defendant should file an Answer at this time, or wait for a determination on plaintiff's anticipated request for further amendment." Id. at 4-5.

Sullivan wrote the Court again on May 17, 2002, requesting that the Court order plaintiff be deposed on May 29, 2002. See Ex. E to Sullivan Decl. The Court endorsed this letter on May 20, 2002, ordering that plaintiff appear at the Office of Corporation Counsel for deposition on May 29, 2002. See id. Plaintiff was also directed to respond to all outstanding discovery requests by that date. See id. Finally, the endorsement informed the parties that "Failure to appear may result in dismissal of [plaintiff's] case." Id. Sullivan wrote the Court again on May 22, 2002, requesting permission to file an Answer on or before June 12, 2002, two weeks after plaintiff's court-ordered deposition. See Ex. F to Sullivan Decl. This request was granted on May 23, 2002 by way of letter endorsement. See id.

On the morning of May 29, 2002, plaintiff called Sullivan and told him he would not be attending his deposition. See Sullivan Decl. ¶ 22. No explanation for this cancellation has been provided. The settlement conference before Judge Maas was held nonetheless, with plaintiff participating by telephone. See id. ¶ 23. Apparently, the issue of the timing of the Answer was raised by one of the parties as "Judge Maas explained that typically an Answer is filed before a deposition, but that there is no per se rule requiring that sequence." Id. Judge Maas instructed plaintiff to call Sullivan to schedule his deposition. See id. Defendant filed its Answer on June 12, 2002.

In a last ditch effort, Sullivan wrote plaintiff on June 2, 2002, noticing plaintiff's deposition for June 7, 2002. See Ex. G to Sullivan Decl. On June 5, 2002, plaintiff advised Sullivan, by facsimile and voicemail message, that he could not attend the June 7 date because he had "No $." Ex. F to Sullivan Decl. In his facsimile transmission, plaintiff noted that he was prepared to have his case thrown out by this Court. See id.

Plaintiff has yet to appear for his deposition. In addition, plaintiff has yet to respond to defendant's discovery requests. Presumably, the more important items requested include: plaintiff's income tax returns; releases to his former medical care professionals; and copies of tape recordings between plaintiff and some of defendant's employees. See Sullivan Decl. at ¶ 28.


A. Defendant's Motion to Dismiss

1. Standard Under Rule 41 — Failure ...

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