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.
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 to Prosecute
Under Rule 41, a defendant may move for dismissal of an action for
plaintiff's failure to prosecute. See Fed. R. Civ. P. 41(b). In deciding
a motion to dismiss under Rule 41, "[i]t is well established that a
district court has the power to dismiss an action for failure to
prosecute and that such a dismissal will be reviewed only for abuse of
discretion." Nita v. Connecticut Dep't of Envtl. Prot., 16 F.3d 482, 485
(2d Cir. 1994) (citing Link v. Wabash Railroad Co., 370 U.S. 626, 632-33
(1962)). However, "dismissal is a `harsh remedy to be utilized only in
extreme situations.'" Romandette v. Weetabix Co., Inc., 807 F.2d 309, 312
(2d Cir. 1986) (quoting Thellmann v. Rutland Hosp., Inc., 455 F.2d 853,
855 (2d Cir. 1972) (per curiam )). Under Rule 41, five factors are used
to determine whether dismissal is warranted:
(1) the duration of the plaintiff's failures; (2)
whether plaintiff had received notice that further
delays would result in dismissal; (3) whether the
defendant is likely to be prejudiced by further
delay; (4) whether the district judge has taken care
to strike the balance between alleviating court
congestion and protecting a party's right to due
process and a fair chance to be heard, and (5)
whether the judge has adequately assessed the
efficacy of letter sanctions.
Shannon v. General Elec. Co., 186 F.3d 186, 193 (2d Cir. 1999).
2. Standard Under Rule 37 — Failure to Cooperate with Discovery
Rule 37(d) expressly provides for dismissal as a sanction where a
plaintiff fails to appear for his deposition after being served with a
proper notice. See Fed. R. Civ. P. 37(d) (cross-referencing to Rule 37
(b)(2)(C) which authorizes a court to dismiss an action or proceeding
for failure to comply with a discovery order). "The imposition of
sanctions under Rule 37 is within the discretion of the district court
and a decision to dismiss an action for failure to comply with discovery
orders will only be reversed if the decision constitutes an abuse of that
discretion." Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d
Cir. 1990) (internal quotation marks and citations omitted).
Furthermore, when dismissal is appropriate under Rule 37, a court need
not address Rule 41(b). See Salahuddin v. Harris, 782 F.2d 1127, 1133-34
(2d Cir. 1986).
As with dismissals under Rule 41, dismissal under Rule 37 is also a
harsh sanction that is to be used only in extreme situations. See Update
Art, Inc. v. Modin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988)
(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 this Rule, 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. See Simmons v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995).
3. Mitigating Circumstances
In his opposition, plaintiff attempts to justify his failure to be
deposed on the ground that such deposition was premature given
defendant's failure to file an Answer. See Amended Affirmation in
Opposition to Defendant's Motion to Dismiss ("Pl. Aff.") ¶¶ 2-9.
Although in the typical case an Answer is filed before depositions are
noticed, there is no per se rule requiring this sequence. In fact, a
party can take the deposition of any person without leave of the court
unless the deposition is noticed for a time prior to the parties' Rule 26
(f) conference. See Fed. R. Civ. P. 30(a)(2)(C) (cross-referencing to
Rule 26(d) which states that "a party may not seek discovery from any
source before the parties have conferred as required by Rule 26(f)").
Whether service of the Answer was truly a concern of plaintiff or whether
it was an after-the-fact rationalization for his failure to be deposed is
an open question. The latter seems more likely given that plaintiff never
complained of defendant's failure to file an Answer but instead filed a
motion for default judgment on May 22, 2002. See Reply Memorandum of Law
in Further Support of Defendant's Motion to Dismiss, With Prejudice,
Plaintiff's Claims, Under Rules 37 and 41, For Failure to Prosecute at
6. In any event, defendant's failure to provide plaintiff with an Answer
prior to taking plaintiff's deposition provides some justification for
plaintiff's refusal to be deposed, but not much.
Of greater weight is plaintiff's argument that the financial burden of
coming to New York, albeit the chosen forum, is formidable given
plaintiff's indigence. See Pl. Aff. ¶ 18. There is a general
presumption that a plaintiff who chooses a particular forum should be
prepared to be deposed in that forum. See Clem v. Allied Van Lines Int'l
Corp., 102 F.R.D. 938, 939 (S.D.N.Y. 1984) (stating that "this Court has
long enunciated the policy of requiring a non-resident plaintiff who
chooses this district as his forum to appear for deposition in this forum
absent compelling circumstances."). However, "there is no absolute rule
as to the location of the deposition of a nonresident plaintiff" as
"courts must strive to achieve a balance between claims of prejudice and
those of hardship." Normande v. Grippo, No. 01 Civ. 7441, 2002 WL 59427,
at *1 (S.D.N.Y. Jan. 16, 2002). Moreover, in applying this general rule
"a court may consider external constraints on the plaintiff's choice of
forum." Abdullah v. Sheridan Square Press, Inc., 154 F.R.D. 591, 593
(S.D.N.Y. 1994) (citing Ellis Air Lines v. Bellanca Aircraft Corp., 17
F.R.D. 395, 396 (D. Del. 1955) ("There is a principle that a plaintiff
having selected a particular forum for the adjudication of his case
should be prepared to answer a notice of deposition in that locality.
This principle loses some weight where the plaintiff has no choice of
forum but, as here, must bring his suit in one particular jurisdiction or
none at all.")). Accordingly, "courts have permitted nonresident
deponents to be deposed where they live, when they have been able to show
financial hardship." Normande, 2002 WL 59427, at *2.
A stay of dismissal is warranted for several reasons. First, plaintiff
has shown sufficient financial hardship to support his
claim that coming
to New York for his deposition would be very difficult. Second, plaintiff
had no choice but to bring suit in the Southern District of New York as
his claims involve the New York City Police Department. Third, plaintiff
only violated one court order, namely the endorsement on Sullivan's May
17, 200? letter directing that he be deposed on May 29, 2002. Fourth,
that endorsement did not explicitly state that the dismissal of
plaintiff's case would be with prejudice.
Accordingly, plaintiff is hereby ordered to appear for deposition, by
video conferencing, within 30 days from the date of this Order. A video
conference deposition should resolve any concerns defense counsel has
over observing plaintiff's demeanor. All documents should be pre-marked
and sent to plaintiff in advance of the deposition date. This will reduce
any difficulty in identifying documents during the deposition. The
parties are directed to contact Mr. Joel Blum of this Court's Audiovisual
Department to make arrangements for video conferencing between this
Courthouse and the federal courthouse in Boston, Massachusetts. Mr. Blum
is hereby directed to assist the parties in this effort. In addition,
plaintiff is ordered to produce his income tax returns for the 1997-2001
tax years, releases to any health care providers he saw between 1997 and
1999, and any copies of tape recordings made between himself and any
employees of defendant. Such production shall take place within ten days
from the date of this Opinion. If plaintiff complies with these
directives, the dismissal order will be vacated.
B. Plaintiff's Motion to Strike Defendant's Answer
1. Rule 6(b)
Rule 12(a) establishes the time period for filing an answer and Rule 6
(b) permits the court to grant an enlargement of time.*fn4 Fed. R. Civ.
P. 12(a); Fed. R. Civ. P. 6(b). Under Rule 6(b)(2), a defendant who
has missed a filing deadline must move to enlarge the time for filing and
must demonstrate that the failure to file was the result of "excusable
neglect." Fed. R. Civ. P. 6(b)(2); see generally Traguth v. Zuck,
710 F.2d 90, 93-94 (2d Cir. 1983). Such enlargements of time are within
the sound discretion of the court. See id.
Notwithstanding the excusable neglect requirement, "district courts
regularly exercise their discretion to deny technically valid motions for
default."*fn5 Sony Corp. v.
Elm State Elecs., Inc., 800 F.2d 317, 319 (2d
2. Rule 12(f)
Under Rule 12(f), a court may strike from any pleading an insufficient
defense or any other redundant, immaterial, impertinent, or scandalous
matter. Fed. R. Civ. P. 12(f). However, motions to strike are generally
disfavored and will be denied unless it is clear that under no
circumstances could the defense succeed. See William Z. Salcer, Panfeld,
Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984),
vacated on other grounds, 478 U.S. 1015 (1986). To this end, a
defendant's pleading must be construed liberally. See Estee Lauder, Inc.
v. Fragrance Counter, Inc., 189 F.R.D. 269, 271 (S.D.N.Y. 1999). "A
motion to strike an affirmative defense should be denied where the
defense is sufficient as a matter of law or fairly presents a question of
law or fact that the court should hear at trial." Resources Funding
Corp. v. Congrecare, Inc., No. 91 Civ. 8163, 1994 WL 24825, at *3
(S.D.N.Y. Jan. 21, 1994). Finally, to prevail on a motion to strike, the
movant must show that he will be prejudiced by inclusion of the defense.
See Metrokane, Inc. v. The Wine Enthusiast, 160 F. Supp.2d 633, 641-42
3. Defendant's Request to File a Late Answer
Plaintiff argues that defendant was required to answer the Amended
Complaint that was discussed at the January 14, 2002 conference within
ten days of that conference. See Pl. Aff. ¶ 11. Plaintiff also argues
that defendant's May 22, 2002 letter, requesting permission to file an
Answer by June 12, 2002, did not comply with the requirements under Rule
6(b). See Plaintiff's Memorandum of Law in Support of Motion to Strike
Answer at 5. Neither argument justifies striking defendant's Answer.
At the January 14 conference defendant conceded that it had not yet
filed an Answer.*fn6 See Tr. at 13. At the end of the conference,
defense counsel asked the Court whether he should file an Answer based on
the information learned at the conference. See Tr. at 17. While the Court
responded in the affirmative, no date was set for filing the Answer.
Then, in a letter dated April 12, 2002, defense counsel notified the
Court that he had not yet filed an Answer. See Ex. D to Sullivan Decl. at
4. In anticipation of yet another Amended Complaint, "[d]efendant
respectfully request[ed] 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. Then,
upon learning of plaintiff's motion for a default judgment, defense
counsel wrote the Court on May 22, 2002, requesting permission to file an
Answer on or before June 12, 2002. See Ex. F to Sullivan Decl. In that
letter, defense counsel stated that it was his understanding that
defendant was to file an Answer after plaintiff's deposition. See id.
Given that plaintiff's deposition was scheduled for May 29, 2002, I
granted defendant's request. See id.
Rule 15(a) provides that "[a] party shall plead in response to an
amended pleading within the time remaining for response to the original
pleading or within 10 days after service of the amended pleading,
whichever period may be the longer, unless the court otherwise orders."
Fed. R. Civ. P. 15(a) (emphasis added). By granting defendant's request
to file an Answer by June 12, 2002, this Court ordered otherwise. The
fact that defendant may not have complied with the technicalities of Rule
6(b) is of little import. Such non-compliance must be viewed in the
context of the changing or evolving nature of plaintiff's Amended
Complaint and the possibility of a second Amended Complaint.
Moreover, plaintiff has shown no prejudice resulting from the late
filing of defendant's Answer. Given plaintiff's repeated discovery
failures, he is hardly in a position to criticize defendant's tardiness.
In fact, plaintiff appears to have purposefully refrained from
complaining of defendant's failure to answer for a strategic reason,
namely, the filing of a motion for default judgment. The doctrine of
"unclean hands" comes to mind — a party seeking to strike an Answer
must himself be fully compliant with all previous and proper discovery
demands. Plaintiff was undeniably non-compliant without justification, at
least with respect to defendant's document request. Furthermore,
defendant's Answer, aside from denying most of plaintiff's allegations,
contain four significant affirmative defenses. It would be inappropriate
not to resolve important legal issues on the merits. For all of these
reasons, plaintiff's motion to strike defendant's Answer as untimely is
For the reasons set forth above, defendant's motion to dismiss is
granted but stayed for a period of thirty days from the date of this
Opinion. If plaintiff complies with the directives set forth herein, his
case will proceed and a conference will be held on October 18, 2002 at
4:30 p.m. At this conference, at which plaintiff will be permitted to
appear telephonically, the remaining discovery items will be discussed and
a revised Scheduling Order will be entered. The Clerk of the Court is
directed to close these motions.