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ELEY v. SPRINT PCS

December 9, 2004.

GEORGE THOMAS ELEY III, Plaintiff,
v.
SPRINT PCS, Defendant.



The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. Introduction

By notice of motion dated April 29, 2004 (Docket Item 54), defendant moves for sanctions against plaintiff resulting from plaintiff's failure to comply with my March 11, 2004 Order. That Order directed plaintiff to provide responses to defendant's interrogatories and document requests and to provide all disclosures required by Fed.R.Civ.P. 26(a) (1) by March 25, 2004. Although I agree that the imposition of sanctions is appropriate, I conclude that the ultimate sanction of dismissal is premature at this time. Instead, I impose a sanction of $500, payable to the Clerk of the Court within thirty (30) days of the date of this Order and also direct that within thirty (30) days of the date of this Order, plaintiff pay to defendant the reasonable attorney's fees that defendant incurred in making this motion, which I fix at $1,500.00. II. Facts

  Plaintiff commenced this pro se employment discrimination action on or about March 24, 2000, alleging discrimination on the basis of age, race, national origin and disability. Plaintiff also alleged that he was the victim of illegal retaliation.

  On April 22, 2002, after filing a motion to dismiss all claims other than the disability-discrimination claim, defendant served plaintiff with a Request for Production of Documents ("Request for Documents") and a Request for Answers to Interrogatories ("Interrogatories"). On that same date, defendant provided plaintiff with its initial disclosures pursuant to Rule 26(a) (1) of the Federal Rules of Civil Procedure (Certification of Colleen P. Tandy, Esq., dated April 28, 2004 ("Tandy Cert."), ¶ 5).

  Despite the fact that defendant's counsel expressly notified plaintiff that his responses to defendant's Interrogatories and Request for Documents were due on May 27, 2002, plaintiff did not serve any response at that time (Tandy Cert. ¶¶ 6-7). Consequently, on June 7, 2002, defendant's counsel wrote to plaintiff and advised him that his discovery responses were overdue. Defendant's counsel requested that plaintiff produce these responses as soon as possible and advised plaintiff that if plaintiff's responses were not received by June 19, 2002, defendant would seek intervention from the Court (Tandy Cert. ¶ 7 and Exhibit D, thereto). Plaintiff did not respond to counsel's letter, nor did he respond to the Interrogatories and Request for Documents (Tandy Cert. ¶ 8).

  Defendant's counsel wrote to me on July 18, 2002 to advise me of plaintiff's discovery default (Tandy Cert. ¶ 10 and Exhibit F thereto). In view of the then-pending motion to dismiss, I stayed all discovery pending resolution of the dispositive motion (see Order dated July 22, 2002, Docket Item 42). My Order further provided that if plaintiff's action survived the dismissal motion, time would be permitted for the parties to complete discovery.

  On July 26, 2002, I issued a Report and Recommendation recommending the dismissal of all of plaintiff's claims other than his disability-based discrimination claim (Docket Item 41). My Report and Recommendation was adopted by the Honorable Lewis A. Kaplan, United States District Judge, to whom the matter was then assigned, on August 16, 2002 (Docket Item 43). Judge Kaplan's Order adopting my Report and Recommendation terminated the stay of discovery I had previously issued.

  Defendant's counsel wrote to me on September 11, 2002 seeking a conference to consider plaintiff's failure to respond to defendant's Interrogatories and Request for Documents (Tandy Cert. ¶ 15). Accordingly, my staff attempted without success to contact plaintiff by telephone on several occasions in order to schedule a conference. When these attempts proved unsuccessful, my deputy wrote to plaintiff on November 19, 2002, stating:
I have attempted to contact you at (718) 432-4779 to schedule a conference to discuss various discovery issues raised by the defendant in this action. I have been unable to reach you and messages I have left have gone unreturned.
Mr. Eley, it is urgent that you contact me as soon as possible at the above telephone number to avoid the imposition of sanctions against you, which may include the court deeming your case abandoned and thus, the issuance of a Report & Recommendation to Judge Kaplan recommending that your case be dismissed for failure to prosecute.
(Tandy Cert. ¶ 16 and Exhibit J thereto). Plaintiff took no action in response to my deputy's November 19, 2002 letter; he did not contact my Chambers nor did he respond to defendant's discovery requests (Tandy Cert. ¶ 17).

  In early December 2002, plaintiff filed a motion with the United States Court of Appeals for the Second Circuit seeking, among other things, to appeal from Judge Kaplan's August 16, 2002 Order and to disqualify Judge Kaplan and myself. Plaintiff claimed in his motion that "Pitman and Kaplan are incompetent judges who are ignorant to the facts in this case" (Exhibit K to Tandy Cert.). Plaintiff also accused Judge Kaplan and myself of conspiring with defense counsel to deny him equal protection and due process, violating his civil rights, and violating the United States Constitution.

  The Court of Appeals dismissed plaintiff's appeal sua sponte on February 7, 2003 (Tandy Cert. ¶ 19).

  The matter was reassigned to the Honorable P. Kevin Castel, United States District Judge, on November 6, 2003 (Docket Item 49). On November 12, 2003, I issued an Order regarding the pretrial submissions, which had been due some ten months earlier. My November 12, 2003 Order stated:
Despite the fact that I previously issued a scheduling order in this matter directing that the pretrial order, and all other pretrial submissions . . . be filed by January 6, 2003, these documents have not yet been filed.
I shall give plaintiff one final opportunity to file these documents. Plaintiff is directed to file the pretrial order, and all other submissions . . . no later than December 12, 2003. Plaintiff shall serve a draft of his portion of the pretrial order on counsel for defendant no later than fifteen (15) days prior to the pretrial order's due date.
Plaintiff is warned that an unjustified failure to file the pretrial order by December 12, 2003 will result in the issuance of a report and recommendation recommending that this matter be dismissed for failure to prosecute.
(Ex. L to Tandy Cert.).
  In January 2004, plaintiff filed a motion to extend his time for filing his pretrial submissions. In that motion, plaintiff:
(a) Questioned the fairness of his having to make pretrial submissions within the time established by the Court.
(b) Claimed that the Court and his deputy, Daniel Ortiz, conspired to write him a threatening letter (the November 19, 2002 letter).
(c) Accused Judge Kaplan and myself of defying an unidentified federal court order for 9 months; and
(d) Asserted that he "filed these charges to get justice but all [he] got was judges who break the law, fixed this case, lie, and allow defendants to break the law."
(Ex. M to Tandy Cert.).

  On February 5, 2004, Your Honor referred plaintiff's motion for an enlargement of time to me and denied plaintiff's application to disqualify me (Ex. O to Tandy Cert.). On February 20, 2004, my deputy sent both sides a letter scheduling a status ...


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