United States District Court, S.D. New York
December 9, 2004.
GEORGE THOMAS ELEY III, Plaintiff,
SPRINT PCS, Defendant.
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 conference
for March 11, 2004 (Tandy Cert. ¶ 27 and Ex. P thereto).
Plaintiff faxed me a letter on March 9, 2004 stating that he
would not be attending the conference. Among other things, this
Pitman know[s] the status of this case! Why do[es he]
need a conference?
. . . .
While deeming my case abandon[ed] Pitman ignored a
mandated order by the high court for 9 months. By
ignoring this high court order, clearly shows Pitman
has no respect for the court of law and he is above
. . . .
I believe Pitman is bias and prejudice against me.
Because of his prejudice, he has failed to appoint
counsel in this case, which allowed him to take
advantage of me.
. . . .
I will be calling for a criminal and civil rights
violation investigation in this case, because I
believe Pitman is incompetent and unfit to hold
office. One day he is going to be found out for his
Remember, the word "anyone" in civil rights and
criminal statues [sic] include federal judges who are more guilty than an ordinary citizens when that judge
violates a sacred trust to uphold and protect the
laws and Constitution of the United States and then
misuses the judicial offices and court to subvert
(Ex. Q to Tandy Cert.).
The conference took place as scheduled on March 11, 2004; it
was attended only by counsel for defendant. After hearing from
counsel, I issued an Order that provided:
A status conference in this matter was scheduled for
March 11, 2004. Although notice was sent to both
sides, only counsel for defendant appeared. Prior to
the conference, plaintiff had advised me that he did
not intend to appear at the conference. Obviously, no
litigant, either plaintiff or defendant, can
unilaterally cancel a conference or other proceeding
scheduled by the Court.
Since plaintiff was provided with notice of the
conference, but declined to appear, the conference
proceeded in his absence. For the reasons stated on
the record during the course of the conference, and
in an effort to insure that every reasonable step is
taken to adjudicate this matter on the merits and not
on the basis of a procedural default, it is hereby
1. No later than March 25, 2004, plaintiff is
directed to respond to the interrogatories and
document requests served by defendant in or about
April, 2002. Since the time for filing objections to
these discovery requests is long past, plaintiff must
serve full and complete answers.
2. Plaintiff is to make all disclosures required by
Rule 26 (a) (1) of the Federal Rules of Civil
Procedure no later than March 25, 2004.
. . . .
Plaintiff is warned that an unjustified failure to
comply with any of the deadlines or other
requirements set herein may result in the imposition
of sanctions which may include the dismissal of the
single claim remaining in this action. (Ex. R to Tandy Cert.). A copy of this Order was
mailed to plaintiff; it has not been returned as
Plaintiff did not comply with the March 11, 2004 Order. He has
not responded to the Interrogatories and Request for Document
served by defendant in 2002 and has failed to make his Rule 26
(a) (1) disclosures (Tandy Cert. ¶ 32). He has not explained his
failure to make discovery to my Chambers, nor has he offered any
response to defendant (Tandy Cert. ¶ 33).
Defendant served the pending motion on or about April 29, 2004
and filed it on May 17, 2004. Plaintiff did not timely file any
opposition and, therefore, I issued an Order on June 21, 2004
which provided, in pertinent part:
In order to avoid resolving [defendant's] motion by
default, plaintiff is granted until June 30, 2004 to
respond to the motion filed by defendants on May 20,
2004. Unless plaintiff responds to the motion by June
30, 2004 or seeks a further extension of time by June
30, 2004, I shall consider the motion fully submitted
on that date and ripe for decision.
(Docket Item 56).
Plaintiff did not respond to my June 21, 2004 Order in any way.
I issued a second Order on October 1, 2004 which provided:
Defendant has moved to dismiss the complaint in this
matter pursuant to Fed.R.Civ.P. 37 as a sanction for
plaintiff's alleged failure to comply with discovery
orders. Despite the fact that defendant's motion was
filed on May 20, 2004, plaintiff has still not served
In light of plaintiff's pro se status and in an
effort to maximize the likelihood that the pending
motion will be resolved on the merits, I shall give plaintiff a final opportunity to submit opposition.
Plaintiff's time to respond to the pending motion to
dismiss is extended to November 1, 2004. IF
PLAINTIFF DOES NOT SERVE AND FILE HIS OPPOSITION TO
THE PENDING MOTION ON OR BEFORE NOVEMBER 1, 2004, I
SHALL TREAT THE MOTION AS FULLY SUBMITTED AT THAT
TIME AND GRANT THE MOTION ON DEFAULT.
(Docket Item 58 (bold in original)).
Plaintiff has not responded to my October 1, 2004 Order in any
Although I believe that a sanction is appropriate, I decline to
impose the ultimate sanction of a default judgment sought by
defendant. As noted by the Honorable David N. Hurd, then
Magistrate Judge, now United States District Judge, in Fritter
v. Dafina, Inc., 176 F.R.D. 60, 63 (N.D.N.Y. 1997):
The Court may render a default judgment against a
party who has failed to fully comply with a discovery
order of the court. Fed.R.Civ.P. 37(b) (2) (C). Such
a sanction is an extreme measure appropriate only in
extreme circumstances. See Bambu Sales Inc. v.
Ozak Trading Inc., 58 F.3d 849, 853 (2d Cir. 1995);
Woodstock Ventures LC v. Perry, 164 F.R.D. 321, 322
(N.D.N.Y. 1996) (citing Jones v. Niagara Frontier
Transp. Auth., 836 F.2d 731, 734 (2d Cir. 1987)).
Consequently, the Second Circuit limits default
judgments to circumstances "involving willfulness,
bad faith, or any fault on the part of the
disobedient party." Altschuler v. Samsonite Corp.,
109 F.R.D. 353, 356 (E.D.N.Y. 1986) (citing Societe
Internationale Pour Participations Industrielles Et
Commerciales, S.A. v. Rogers, 357 U.S. 197, 212,
78 S.Ct. 1087, 1095-96, 2 L.Ed.2d 1255 (1958)); see
Jones, 836 F.2d at 734. In addition, though, the
Second Circuit has held default judgment appropriate
where there has been a total dereliction of
professional responsibility, evincing circumstances
of gross negligence. Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp.,
602 F.2d 1062, 1065-66 (2d Cir. 1979).
See also Nat'l Communications Ass'n v. Am. Tel. & Tel. Co.,
92 Civ. 1735 (LAP), 1998 WL 118174 at *3 (S.D.N.Y. Mar. 16,
1998); Sullivan v. City of New York, 94 Civ. 1643 (FB), 1997 WL
642321 at *2 (E.D.N.Y. Sept. 3, 1997); Jeanette Coquette Co. v.
Hartford Fire Ins. Co., 93 Civ. 4417 (DAB), 1997 WL 527874 at
*1-*2 (S.D.N.Y. Aug. 22, 1997); Edwards v. Am. Airlines, Inc.,
95 Civ. 5356 (SAS), 1996 WL 432472 at *2-*3 (S.D.N.Y. Aug. 1,
1996); Starbrite Waterproofing Co. v. AIM Const. & Contracting
Corp., 164 F.R.D. 378, 381-82 (S.D.N.Y. 1996).
Courts have considered five factors in assessing whether
dismissal is appropriate as a sanction for a party's failure to
comply with a discovery order: "the duration of the plaintiff's
failures, whether plaintiff has received notice of the potential
sanctions, the prejudice to the defendant arising from the
plaintiff's actions, due process considerations, and the efficacy
of lesser sanctions." 2 Michael C. Silberberg & Edward M. Spiro,
Civil Practice in the Southern District of New York § 26.11 at
26-34 (2d ed. 2002). See also Spencer v. Doe, 139 F.3d 107,
113 (2d Cir. 1998) (articulating the fourth factor as requiring a
"balancing of the court's interest in managing its docket with
the plaintiff's interest in receiving a fair chance to be
heard"); see generally Bambu Sales, Inc. v. Ozak Trading,
Inc., 58 F.3d 849, 852-53 (2d Cir. 1995)
In this case, almost all the factors weigh against plaintiff.
First, plaintiff is more than two years in default in responding to the discovery requests, and has been in violation
of my March 11, 2004 Order for more than eight months. Since
plaintiff is proceeding pro se, plaintiff himself is
responsible for the default. Second, my March 11, 2004 Order
provided clear and unequivocal warning that dismissal was a
possible sanction. Third, defendant has suffered substantial
prejudice because it has received no discovery from plaintiff
concerning plaintiff's disability-discrimination claim. And,
fourth, despite the fact that plaintiff has been given two
extensions of time to respond to the pending motion and explain
why dismissal is inappropriate, he has failed to make any
The single factor that weighs against dismissal is the efficacy
of lesser sanctions. This is defendant's first motion for
discovery sanctions, and the efficacy of lesser sanctions is
therefore unknown. Although plaintiff's record in this case gives
little cause for hope, I am reluctant to impose the most drastic
sanction without first attempting to bring about compliance
through a lesser sanction. As the Court of Appeals has repeatedly
noted, dismissal for failure to comply with a court order "is a
harsh remedy and is appropriate only in extreme situations. . . .
[D]istrict courts should be especially hesitant to dismiss for
procedural deficiencies where, as here, the failure is by a pro
se litigant." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
See also Spencer v. Doe, supra, 139 F.3d at 112; Simmons
v. Abruzzo, 49 F.3d 83, 88 (2d Cir. 1995); Minnette v. Time
Warner, 997 F.2d 1023, 1027 (2d Cir. 1993); Solomon v. Beachlane Mgmt., 03 Civ. 5688 (DLC), 2004 WL 2403950 at *1-*2
(S.D.N.Y. Oct. 26, 2004). Thus, I conclude that a monetary
sanction is more appropriate at this time. However, plaintiff
must be aware that a continued unjustified failure to comply with
the Court's Orders and/or plaintiff's discovery obligations will
result in the dismissal of his sole remaining claim.
Within thirty (30) days of the date of this Order, plaintiff is
directed to (1) pay the sum of $500 to the Clerk of the Court as
a sanction for his failure to comply with my prior Order; (2)
produce to defendant all disclosures required by Fed.R.Civ.P.
26(a)(1); and (3) respond fully to defendants' outstanding
Interrogatories and Request for Documents; since the time for
asserting objections has long since passed, no objections these
discovery requests may be asserted.
In addition, since no mitigating factors are present here,
defendant is entitled to the reasonable attorney's fees it
incurred in making the present motion. Fed.R.Civ.P. 37(a) (4)
(A). I fix these fees at $1,500.00 and also order plaintiff to
pay this sum to defendant within thirty (30) days of the date of
Plaintiff is warned that this is the last time I shall afford
him the opportunity to comply with his discovery obligations. If
plaintiff fails to comply with this Order without justification, I shall issue a Report and Recommendation
recommending the dismissal of this action.
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