United States District Court, Southern District of New York
July 7, 2003
ELIEZER WAHHAB, AND AMEHRA BROWN, PLAINTIFFS, -AGAINST- THE CITY OF NEW YORK, SAMUEL RUSHING, N.Y. POLICE OFFICER, SHIELD #6377, THE GALLERY AT FULTON ST., LLC, TOP POTATO PLUS CORP., THEODORE PRIFTAKIS, INDIVIDUALLY AND AS OWNER/MANAGER OF TOP POTATO PLUS CORP., CANNADY SECURITY CO., HENRY CANNADY, INDIVIDUALLY AND AS OWNER OF CANNADY SECURITY CO., JOVAN ROUSE, SECURITY GUARD, AND JOHN DOES 1 THROUGH 5, SECURITY GUARDS, DEFENDANTS
The opinion of the court was delivered by: Constance Motley, Senior District Judge
MEMORANDOM OPINION AND ORDER
Plaintiffs move the court for sanctions against defendants Henry Cannady ("Cannady") and Jovan Rouse ("Rouse") (collectively "defendants") for their repeated failure to appear for scheduled depositions. In particular, plaintiffs move the court to "strike their answer, order them [ Page 2]
to compensate plaintiffs for all costs associated with the cancelled depositions, and make such other dispositions as may be appropriate." Pl's Br. at 3. For the reasons set forth below, plaintiff's motion to strike the answers of defendants Cannady and Rouse is hereby DENIED. Plaintiffs' request for a hearing on the motion for costs is GRANTED.
Plaintiffs in this case have alleged in their complaint that defendant Jovan Rouse, who was formerly employed as a security guard with Cannady Security Services, Inc., and other defendants participated in an unlawful detention of and physical assault upon plaintiff Eliezer Wahhab, resulting in severe physical injury to him. Plaintiffs have further alleged that defendant Henry Cannady, President of Cannady Security Services, Inc., was at all relevant times Rouse's employer. Accordingly, plaintiffs claim that Cannady bears liability for the unlawful acts allegedly committed by Rouse.
The record indicates that plaintiffs dutifully scheduled depositions with defendants' counsel and served a notice of deposition on all defendants, calling for Rouse to be deposed on February 25, 2003 and for Cannady to be deposed on February 26, 2003. Cannady's deposition was subsequently rescheduled for February 25, 2003. Neither Cannady nor Rouse appeared for their depositions. A second set of depositions was noticed on April 9, 2003. These depositions were to be held on April 22, 2003 and April 24, 2003. Again, Cannady and Rouse failed to appear.
Counsel for Cannady and Rouse subsequently scheduled a third set of depositions, to take place on June 19, 2003. On June 18, counsel for Cannady and Rouse informed plaintiffs that Cannady would not attend his deposition; accordingly, the deposition was cancelled. On July 10, 2003, the court approved the substitution of counsel for defendants Cannday and Rouse. Plaintiffs contend that defendants' counsel withdrew because of Cannady and Rouse's failure to cooperate. PL's Reply Mem. at 5.
Rule 37(b)(2) of the Federal Rules of Civil Procedure provides that "[i]f a party . . . fails to obey an order to provide or permit discovery," the court may impose various sanctions listed in subsections (A), (B), and (C) of that section. Subsection (C) authorizes the court to enter an order "striking out pleadings or parts thereof, or staying further proceedings . . . or dismissing the action . . . or rendering a judgment by default against the disobedient party." Fed.R.Civ.P. Rule 37(b)(2)(C).
Furthermore, Rule 37(d) provides that if a party fails to appear for a deposition after being served with proper notice, "the court . . . may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule." Fed.R.Civ.P. Rule 37(d). [ Page 3]
On December 10, 2002, the court issued an order establishing a pretrial and trial schedule for this matter. On March 14, 2003, the court issued an order granting plaintiffs' request for an extension of the discovery deadline, establishing April 30, 2003 as the new deadline for the conclusion of all discovery. Defendants' failure to appear for depositions scheduled in good faith by their previous counsel and counsel for plaintiffs has not merely frustrated the parties' attempts to move this case along toward the court's consideration of dispositive motions and/or trial. Indeed, by failing to appear for depositions, defendants have effectively flouted an order of this court.
In the instant case, defendants Cannady and Rouse have failed to comply with the discovery order entered by the court on December 10, 2002. Newly substituted counsel for Cannady and Rouse submits that neither of his clients willfully avoided appearing for a deposition. Mr. Rouse contends that he did not fully understand that it was his obligation to appear for deposition before trial. See Rouse Aff. ¶ 6. He claims that he was under the impression that Cannady Security Services, Inc. was obligated to defend this matter. Id. at 7. He claims that he thought that — notwithstanding the fact that he was named in this case and was served with a notice of deposition — he "had nothing to do with the case because [he] was no longer employed by [Cannady Security Services]." Id. Similarly, Cannady now pleads ignorance, claiming that he did not understand that he "personally had to appear for an examination before trial when it was scheduled." Cannady Aff. ¶ 7.
Plaintiffs dispute these contentions, noting that defendants have been willfully uncooperative throughout the discovery process in this case. Plaintiffs note that defendant's counsel undertook to inform Cannady and Rouse of the possible consequences of their failure to appear for scheduled depositions. Indeed, counsel for Cannady and Rouse went so far as to schedule a deposition date, June 19, 2003, at his firm's offices and at his firm's expense. See PL's Reply at 5. Plaintiffs believe that Cannady and Rouse's former counsel ultimately withdrew as counsel because of their clients' failure to cooperate. Id. In short, plaintiffs are having none of defendants' shenanigans; they believe that striking defendants' answers is warranted and appropriate.
Pursuant to Rule 37, plaintiffs now move the court to strike defendants' answers. In addition, plaintiffs move the court to order Cannady and Rouse to compensate plaintiffs for costs associated with the cancelled depositions. "Although entry of a default judgment is an extreme measure, discovery orders are meant to be followed. `A party who flouts such orders does so at his peril.'" MCI Worldcom Communications, Inc. v. Gamma Communications Group, Inc., 204 F.R.D. 259, 261 (S.D.N.Y. 2001) (quoting Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 853 (2d Cir. 1995)). While the court will not countenance further dilatory tactics, it acknowledges that striking defendants' answers is an extreme sanction. Defendants have pledged to cooperate in this matter; the court wishes to give them one more chance to do so. Accordingly, defendants Cannady and Rouse are ORDERED to appear for deposition within twenty-one (21) days of the date of this memorandum opinion and order. If they again fail to appear to be deposed within that period of time, the court will enter a default judgment against [ Page 4]
Plaintiffs' request for a hearing on their motion for defendants to compensate them for all costs associated with the canceled depositions is GRANTED. The court shall hold a hearing on the motion for costs at the pretrial conference scheduled to take place on September 8, 2003. The parties are further ORDERED to promptly inform the court of the date of depositions in this matter. At that time, and in response to the City's request dated July 3, 2003, the court will set a briefing schedule for motions for summary judgment.
SO ORDERED. [ Page 1]
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