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BETHEA v. POTTER

United States District Court, Southern District of New York


May 8, 2003

STEPHANIE BETHEA, PLAINTIFF, AGAINST JOHN E. POTTER, POSTMASTER GENERAL, DEFENDANT.

The opinion of the court was delivered by: Douglas F. Eaton, United States Magistrate Judge.

OPINION

Pro se plaintiff Stephanie Bethea brought these two lawsuits, alleging that her employer, the U.S. Postal Service, subjected her to unequal terms and conditions of employment, and retaliation, on the basis of her psychiatric disability. In a letter dated May 6, 2003, AUSA Andrew O'Toole asks me to dismiss plaintiff's lawsuits for failure to prosecute, pursuant to Rule 41 of the Federal Rules of Civil Procedure, and for failure to comply with Court orders, pursuant to Rule 37 of the Federal Rules of Civil Procedure. I grant those requests and dismiss plaintiff's complaints with prejudice.

As shown below, I have given plaintiff numerous opportunities to comply with my orders to prosecute this case, but she has failed to do so. For instance, in a Memorandum and Order dated October 7, 2002, I wrote (with my emphasis now added in italics):

First. I direct plaintiff to respond to Defendant's First Set of Interrogatories and Document Requests, and to sign the eight medical releases in the presence of a Notary Public, and to mail the answers, the responses, the responsive documents and the signed medical releases to AUSA O'Toole no later than October 30, 2002. . . . If plaintiff fails to comply with either of my directives, I will dismiss her case pursuant to Rule 41 of the Federal Rules of Civil Procedure for failure to prosecute and for failure to comply with a Court order.
In a Memorandum and Order dated December 11, 2002, I wrote:

I have received AUSA O'Toole's December 10 letter (six pages plus three exhibits). The defendant asks me to dismiss the case pursuant to Rule 41 of the Federal Rules of Civil Procedure, for plaintiff's failure to respond to Defendant's First Set of Interrogatories and Document Requests, and hence her failure to comply with my October [7], 2002 Memorandum and Order.
If Ms. Bethea wishes to respond to AUSA O'Toole's December 10 letter, then she must do so by December 20, 2002. . . .
In response to that Order, on or about December 18, Ms. Bethea wrote:

I am a lay person in need of representation from the American Postal Workers Union. I am a union member and have been for seventeen years, which entitles me to representation by the union. Attempting to process these cases are out of my ability and I respectfully am requesting assistance on my behalf. . . .
On 8/7/2002, I met with Mr. William Smith President of the A.P.W.U. I requested union representation regarding my EEO case #4A100-0043-02 filed on 2/23/2002. Mr. William Smith stated that he would give it to the union attorney Mr. Nikolaidis, for coverage.
Your honor, I am forwarding Mr. O'Toole['s] December 10 letter [] to the A.P.W.U. attorney at 275 7th Avenue . . . for coverage. I am respectfully requesting that you give Mr. Nikolaidis extended time to respond to Mr. O'Toole['s] December 10 letter. He has both cases. . . . I would appreciate if you would give Mr. Nikolaidis time to review documents, before ruling.
On January 31, 2003, I issued a Memorandum and Order that said (with my emphasis now added in italics):

3. My law clerk telephoned Mr. Nikolaidis and he told her that he does not, and will not, represent Ms. Bethea in these two lawsuits. . . .
4. Plaintiff's letter also contains her third request for appointed counsel. I have twice before denied this request, see my Orders dated April 30 and November 22, 2002. For the same reasons stated earlier, I again deny her request. I do not find her lawsuits to have any substance, and therefore I will not appoint any attorney for her. To the extent she is suggesting that I order Mr. Nikolaidis to be her lawyer, I have no jurisdiction to order him to take any case, and I will not interfere in whatever disputes she and the Union may be having about her assertion that her union membership entitles her to a free attorney to handle a lawsuit where she is the plaintiff. In short, Ms. Bethea must stop using her lack of an attorney as an excuse for not complying with her discovery obligations.
5. In the same December 18 letter, plaintiff also writes:
I again wish to renew "Strong Objections" against the defendant's application for acquisition of irrelevant/inappropriate records. Documents/Interrogatories requested for the time indicated (i.e. 1991-1996), and I.R.S. filings are themselves out of the scope, and have no bearing on the above mentioned proceeding before this court disregarded/denied.
I overrule plaintiff's objections. In my October 7 Order, I gave her a deadline of October 30 to respond to Defendant's First Set of Interrogatories and Document Requests and to provide the requested medical releases. According to AUSA O'Toole's December 10 letter, her only compliance has been to provide eight medical releases; she has provided no other documents, and she has answered none of the interrogatories. Ms. Bethea does not dispute this.
6. I will give plaintiff one last extension — until February 28, 2003 — to serve complete answers to each of the First Set of Interrogatories and to serve a copy of each document that is in her control and is described in Defendant's First Set of Document Requests. As I warned her in my October 7 Order, if she does not comply, I will dismiss these two lawsuits pursuant to Rule 41 of the Federal Rules of Civil Procedure, for failure to prosecute and for failure to comply with a Court order.
My Order also set forth a fact discovery deadline of May 30, 2003. From my review of the papers Ms. Bethea sent to Mr. O'Toole on or about March 3, 2003, it appears that plaintiff only complied with the document request asking her to provide her tax returns.

On March 29, 2003, Ms. Bethea made a fourth application for the assignment of counsel, which I denied. Included with her application were copies of 3 notarized consents for the disclosure of work records and 3 requests to subpoena over 50 people and entities.

On May 6, 2003, Mr. O'Toole wrote the following in a letter to me:

Notwithstanding the fact that this Court has expressly warned plaintiff in two separate orders that her complaints would be dismissed if she failed to provide Defendant with a response to its written discovery requests, . . . Plaintiff has never provided the Defendant with her response to the First Set of Interrogatories and Document Requests nor provided any excuse for her continued and flagrant disregard of her discovery obligations and this Court's orders.
At this time, (1) plaintiff's failure to respond to the Defendant's written discovery requests is approaching eight months, (2) [p]laintiff has received at least two warnings that any further delay in her compliance would result in dismissal of her complaints, (3) Defendant has been significantly prejudiced by plaintiff's failure to comply in that he cannot discover the names of the dozen people plaintiff claims were involved in the actions of the complaint and prepare to defend against these allegations, and (4) there is no lesser sanction that would be appropriate given plaintiff's failure to comply with this Court's prior orders. Defendant has waited to schedule plaintiff's deposition (and any other non-party depositions) until plaintiff has provided her written discovery responses. Without plaintiff's written discovery responses, Defendant would be unable to appropriately focus its deposition questions to the nature of plaintiff's claims. Under the current discovery schedule, all fact discovery must be completed by May 30, 2003.
Accordingly, Defendant respectfully renews its earlier application that the present actions be dismissed for failure to prosecute and/or for failure to comply with the Court's orders pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure.
I find that Ms. Bethea was well aware that if she did not comply with my directives, then I would dismiss both of her lawsuits. Yet, she continuously disregarded my orders and warnings. Pursuant to Rules 37 and 41, I dismiss both lawsuits, with prejudice, for plaintiff's failure to prosecute and for plaintiff's failure to comply with the Court's orders.

I direct the Clerk of the Court to close both cases, 01 Civ. 3548 (DFE) and 01 Civ. 11492 (DFE).

20030508

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