The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
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
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
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
(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
(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 ...