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.
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 , 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
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
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
5. In the same December 18 letter, plaintiff also
I again wish to renew "Strong Objections" against
the defendant's application for acquisition of
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
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).
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