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United States District Court, S.D. New York

February 7, 2005.


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




  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.


  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 to its discovery demands; and (ii) those materials that Mejia was obligated to disclose to Stonecrest pursuant to Fed.R.Civ.P. 26(a).


  Rule 37 of the Federal Rules of Civil Procedure provides, in its most pertinent part:

  If a party fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just and, among others, the following: . . . [a]n order striking out pleadings or parts thereof, or dismissing Page 5 the action . . . or rendering a judgment by default against the disobedient party.

 Fed.R.Civ.P. 37(b)(2)(C).

  The imposition of sanctions, under Fed.R.Civ.P. 37, is a matter left to a trial court's discretion. See Trustees of Tapers' Ins., Annuity and Pension Funds v. Albee Drywall Partitions Corp., No. 91 Civ. 1014, 1996 WL 294306, at *4 (S.D.N.Y. June 3, 1996). Sanctions such as striking an answer, dismissing an action or entering a default judgment are drastic measures. See Luft v. Crown Publishers, Inc., 906 F.2d 862, 865 (2d Cir. 1990); Baba v. Japan Travel Bureau Int'l, Inc., 165 F.R.D. 398, 402 (S.D.N.Y. 1996). The purpose of such sanctions is to penalize the offending party for its misconduct and to deter other litigants from engaging in similar behavior. Baba, 165 F.R.D. at 402 (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S. Ct. 2778 [1976][per curiam]). Dismissing an action, striking pleadings or entering a default are sanctions that are typically not imposed under Fed.R.Civ.P. 37 unless a court finds that the party refusing to comply with its discovery obligations has acted willfully or in bad faith or is otherwise culpable. See Luft, supra, 906 F.2d at 865; Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986). A party's failure to comply with discovery orders is considered willful when a court's orders have been clear, when the party refusing discovery has understood them and when the party's noncompliance is not due to factors beyond his or her control. See Baba, 165 F.R.D. at 402-03.

  Mejia has been given multiple opportunities to comply with Stonecrest's discovery demands. However, he has failed to avail himself of these opportunities. As noted above, on several occasions, the Court has given Mejia a date certain by which he was to respond to Page 6 Stonecrest's discovery demands and fulfill the disclosure obligation imposed upon him by Fed.R.Civ.P. 26(a). Moreover, although there is no requirement of a formal warning before serious sanctions may be imposed by a court, under Fed.R. Civ. P. 37, see Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1366 (2d Cir. 1991), Mejia has been advised by the Court on several occasions of the potential consequences of failing to comply with an order of a court, including the prospect of having his complaint dismissed.

  While Mejia opposes the defendant's application for sanctions under Fed.R.Civ.P. 37, he has failed to provide the Court any explanation for his repeated failure to comply with the Court's clear and unambiguous directives and respond to the defendant's discovery demands. In particular, Mejia has not shown that factors beyond his control have prevented him from complying with his disclosure obligations. Under the circumstances, the Court finds that Mejia's failure to provide discovery to the defendant was willful. Such willful conduct warrants a severe sanction.

  The Court is mindful that dismissal is "a harsh remedy." Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990). However, given that plaintiff: (a) has failed to comply with the Court's discovery orders repeatedly; (b) has acted willfully, that is, not because of any identified factors beyond his control; and (c) has had ample notice that non-compliance with the Court's orders could result in dismissal of his complaint, the Court finds that dismissal of Mejia's complaint, with prejudice, is appropriate in this case.

  Fees and Costs

  Stonecrest has requested that it be awarded the attorney's fees and costs it incurred in making the instant application to the Court based on the plaintiff's failure to comply with court Page 7 orders directing him to respond to the defendant's discovery demands. Fed.R.Civ.P. 37(b)(2)(E) permits a court to direct the party failing to obey an order to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was either substantially justified or that circumstances make an award of expenses unjust.

  In the case at bar, the docket sheet maintained by the Clerk of Court indicates that Mejia made an application to proceed in forma pauperis that was granted. Thus, he demonstrated to the court previously that he was without sufficient funds to pay the requisite filing fee to commence this action. This suggests to the Court that Mejia's financial circumstances are such that saddling him with the obligation of paying the attorney's fees and costs Stonecrest incurred in bringing the instant application would place an economic hardship on him that would not be just. Therefore, that branch of the defendant's application, seeking fees and costs, should not be acted upon favorably.


  For the reasons set forth above, this action should be dismissed with prejudice. However, the defendant's request to recoup from the plaintiff the attorney's fees and costs it incurred in bringing the instant application should be denied.


  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 Gerard E. Lynch, 40 Centre Street, Room 803, New York, New York, 10007, and to the chambers of the Page 8 undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Lynch. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn 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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