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MEJIA v. STONECREST MANAGEMENT

February 7, 2005.

ALBERTO MEJIA, Plaintiff,
v.
STONECREST MANAGEMENT, INC., Defendant.



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

REPORT and RECOMMENDATION

TO THE HONORABLE GERARD E. LYNCH, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Stonecrest Management, Inc. ("Stonecrest") has requested, pursuant to Rule 37(b) of the Federal Rules of Civil Procedure, that the court strike the pleadings of the plaintiff, Alberto Mejia ("Mejia"), and direct that a judgment by default be entered in Stonecrest's favor due to Mejia's failure to respond to Stonecrest's discovery demands as he has been directed to do through various orders of the Court. Stonecrest also requests that the Court award it the attorney's fees and costs it has incurred in making the instant application. For his part, Mejia opposes Stonecrest's application. That application is addressed below.

  II. BACKGROUND

  Mejia, who is representing himself, commenced this action in October 2002, by filing a complaint with the Clerk of Court. Mejia alleged that his former employer, Stonecrest, violated Title VII of the Civil Rights Act of 1964 by discriminating against him in the terms and conditions of his employment because of Mejia's national origin. Among other things, Mejia Page 2 alleged that supervisory personnel employed by Stonecrest advised him that he was not considered the equivalent of his co-workers because Mejia was an "immigrant." In addition, Mejia alleged that he was not provided with the full range of equipment needed to perform his assigned tasks because of his national origin. Mejia maintains that while the defendant hand-delivered paychecks to its employees, Mejia's paychecks were never distributed in this manner. Instead, according to Mejia, he was required to retrieve his paycheck from a table in an area where "garbage and mops" were located.

  In October 2002, Mejia made an application for the court to appoint counsel to represent him. That application was denied by your Honor in November 2002. Thereafter, Mejia retained counsel to represent him.

  In January 2004, Stonecrest served Mejia with a notice of deposition, its first set of interrogatories and its first demand for production and inspection. Mejia did not respond to the discovery demands that had been made by Stonecrest. Stonecrest wrote to Mejia's counsel in February 2004, in an effort to obtain a response to its outstanding discovery demands. When no response from Mejia's counsel was received, Stonecrest contacted the Court to alert it of the problem it had encountered and to request that an informal conference be convened pursuant to Local Civil Rule 37.2 of this court. In response to Stonecrest's request, the Court scheduled a conference for March 11, 2004. However, prior to that date, Mejia's counsel advised the Court that the attorney-client relationship that had been developed with the plaintiff had deteriorated. Mejia's counsel explained that the plaintiff had demanded that he be provided with all the records generated by counsel in connection with the instant action, so that Mejia might obtain new counsel. Mejia's attorney asked the Court to relieve him of the obligation of continuing to Page 3 represent Mejia. That application was entertained and granted during the conference held on March 11, 2004.

  The Court scheduled a pretrial conference for March 30, 2004. Mejia was directed to attend the conference and was advised that his failure to comply with any order of the Court, including the order directing him to attend the March 30, 2004 conference, might result in a report and recommendation to your Honor that the instant action be terminated.

  At the March 30, 2004 conference, the Court directed Stonecrest to provide Mejia with additional copies of its outstanding discovery demands. The Court informed Mejia that he would have to represent himself until such time as he obtained new counsel. Mejia was advised that the Pro Se Office for this judicial district was available to him, should he need procedural assistance.*fn1

  In May 2004, the Court held a status conference with the parties. At that conference, the Court was advised that Mejia had not responded to Stonecrest's first set of interrogatories or to its demand for production and inspection. In addition, the Court was informed that Mejia had not satisfied the initial disclosure obligations that are set forth in Fed.R.Civ.P. 26(a)(1). As a consequence of learning these facts, the Court directed Mejia to respond to the defendant's discovery demands and to make the disclosures required by Fed.R.Civ.P. 26(a)(1) to the defendant by May 28, 2004.

  On June 1, 2004, the Court received a written request from Mejia that was dated May 26, 2004. The request was for an enlargement of the time for Mejia to respond to the defendant's Page 4 discovery demands. The Court granted Mejia's application and extended to June 10, 2004, the time by which Mejia had to: (a) respond to the defendant's outstanding discovery demands; and (b) provide the defendant with the information required to be divulged by Mejia, pursuant to Fed.R.Civ.P. 26(a)(1). Mejia failed to make any disclosures to the defendant on or before June 10, 2004. Therefore, on June 17, 2004, during a telephonic status conference, Mejia was directed by the Court to comply with his disclosure obligations by July 13, 2004. At that time, Mejia was also reminded that a failure on his part to comply with an order of the Court might result in the imposition of a sanction including dismissal of the action. The Court's oral directive to Mejia on June 17, 2004, was memorialized in a written order dated June 18, 2004. Mejia failed to comply with the Court's directive. As a result, the defendant made the instant application.

  Mejia made a written response to the defendant's application. In that writing, Mejia recounted the events and circumstances which prompted him to initiate the instant action. In addition, he urged that the Court "not close this case" because, among other things, Mejia is "a hardworking person and a trustworthy and educated person." Absent from Mejia's writing was any explanation for his failure to abide by the orders of the Court that directed him to provide Stonecrest with: (i) responses ...


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