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United States District Court, S.D. New York

May 4, 2004.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



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 aware of the prospect of the sanction of dismissal available under Fed.R.Civ.P. 37 for failing to meet the party's discovery obligations.

  In the instant case, the Court finds that Bourdeau's failure to disclose materials in her possession that were responsive to the defendant's request for documents was willful since she had an adequate amount of time to assemble the materials and to provide them to the defendant. In addition, the reason proffered by Bourdeau for her failure to attend her own deposition, her fear that she was being followed by strangers, is not adequate to excuse her failure to attend her deposition. Under the circumstances, the sanction of dismissal sought by the defendant appears reasonable and appropriate.


  For the reasons set forth above, the plaintiff's complaint should be dismissed, with prejudice, because of her failure to meet her discovery obligations including attending her own deposition.


  Pursuant to 28 U.S.C. ยง 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, New York, New York 10007 and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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