The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
In the above-referenced action, the defendant has requested, pursuant
to Fed.R.Civ.P. 37(d), that the plaintiff's complaint be dismissed as
a sanction for her failure to comply with her disclosure obligations, as
ordered by the Court, and her failure to attend her own deposition. The
plaintiff opposes the motion; it is addressed below.
Chantal Z. Bourdeau ("Bourdeau") commenced this action pro se
alleging that her former employer, defendant Housing Works, Inc. ("HWI"),
discriminated against her in violation of federal and state law. During
the pendency of the action, HWI requested that Bourdeau disclose
documents to it in advance of the date upon which Bourdeau was scheduled
to be deposed. Bourdeau objected to the defendant's request, in large
measure, because she found the request to be overly broad and determined
that compliance with the request would impose an undue burden on her. Bourdeau visited the office of counsel to HWI and brought
with her a quantity of documents responsive to the defendant's document
disclosure request. However, Bourdeau declined to disclose a number of
the documents to the defendant's counsel because she wanted to consult
with the Court to determine whether she was obligated to disclose that
material.
The parties' dispute concerning the defendant's document disclosure
request was presented to the Court via correspondence. Thereafter, on
February 5, 2004, a telephonic conference was held with Bourdeau and
counsel to the defendant. As a result of the discussion had during the
conference, the Court ordered the plaintiff to provide all documents
responsive to the defendant's document discovery demand to a messenger
the defendant agreed to send to Bourdeau's home on February 6, 2004, to
retrieve the documents. It was contemplated that after receiving the
materials and reviewing same, the defendant would be prepared to proceed
to Bourdeau's deposition which had previously been scheduled and
adjourned to February 13, 2004.
On February 6, 2004, Bourdeau failed to surrender all of the documents
she possessed that were responsive to the defendant's document discovery
demand to the defendant's messenger as the Court had ordered her to do on
February 5, 2004. HWI urged the Court to sanction plaintiff for her
misconduct, as provided for in Fed.R.Civ.P. 37(d), by dismissing the
action and requiring the plaintiff to pay the reasonable costs incurred
by the defendant as a result of the plaintiff's failure to abide by the
Court's February 5, 2004 Order.
The Court waited a reasonable time to permit Bourdeau to submit a
written response to the defendant's request that sanctions be imposed
upon her for failing to abide by the February 5, 2004 Order of the Court. The plaintiff did not submit any response
to the defendant's demand for sanctions.
On February 13, 2004, counsel to the defendant advised the Court, in a
writing, that the plaintiff had failed to attend at the place and time
fixed for her deposition. The defendant renewed its request that the
plaintiff be sanctioned, pursuant to Fed.R.Civ.P. 37(d), by, among
other things, having her complaint dismissed. Previously, on January 23,
2004, in a memorandum endorsement enlarging the time for the parties to
complete their pretrial discovery activities, the Court reminded all
parties of the provisions of Fed.R.Civ.P. 37(d) that address the
possible consequences that may befall a party that fails to attend the
party's own deposition or fails to serve responses to discovery
demands.*fn1
On February 17, 2004, the Court directed Bourdeau to submit, on or
before February 25, 2004, any response she deemed appropriate to the
defendant's request that sanctions be imposed upon her for failing to:
(1) comply with the Court's Order of February 5, 2004, and (2) attend her
deposition.
In a writing dated February 25, 2004, Bourdeau advised the Court that
she did not comply with the Court's Order dated February 5, 2004, because
she was unable to assemble all of the documents she possessed that were
responsive to the defendant's document discovery demand timely. Bourdeau
also advised the Court that she had perceived that she was being followed
by persons unknown to her and, because she was fearful for her life and
that of her child with whom she resides, she absented herself from work and "sought refuge at
my relatives for several days" and, consequently, did not appear for her
deposition.
Fed.R.Civ.P. 37 authorizes a court to dismiss an action for, among
other reasons, a party's failure to: (a) "obey an order to provide or
permit discovery" or (b) "appear before the officer who is to take the
deposition, after being served with proper notice." Fed.R.Civ.P.
37(b)(2)(C); 37(d). In the instant case, Bourdeau has conceded that she
failed to comply with an order of the Court that she disclose to the
defendant all documents she possessed that were responsive to the
defendant's outstanding document discovery demand. She has also conceded
that she failed to appear on the date and at the time for her scheduled
deposition. Bourdeau was aware, at least from January 2004, of the
materials sought by the defendant through its request for documents; yet
she failed to compile them so that they might be disclosed to the
defendant prior to her deposition in February 2004. In January 2004, the
Court directed the parties to conduct Bourdeau's deposition before the
close of discovery on February 20, 2004. During the telephonic conference
with the parties on February 5, 2004, Bourdeau never suggested to the
Court that she was apprehensive about leaving her home to attend a
deposition because strangers were following her or for any other reason.
Her report of such apprehension now, is suspect.
Dismissal of an action, with prejudice, for failing to participate
appropriately in the discovery process is an extreme remedy. It should be
imposed only in those situations when a court finds that a party has
acted willfully or in bad faith in failing to comply with the party's
discovery obligations. See Valentine v. Museum of Modern Art,
29 F.3d 47, 49 (2d Cir. 1994). The plaintiff's status as a pro
se litigant is no bar to the sanction of dismissal, so long as the
court has previously made the pro se litigant ...