United States District Court, S.D. New York
February 7, 2005.
ALBERTO MEJIA, Plaintiff,
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
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
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
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"
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
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
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
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.
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
the action . . . or rendering a judgment by default
against the disobedient party.
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
[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
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
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.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 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
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).