The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge
Euro Brokers, Inc. ("Euro Brokers") moves for sanctions, pursuant to Rule 37(b) of the Federal Rules of Civil Procedure, against plaintiff Maritza Burgie and her counsel Ruth Pollack, Esq. (See Doc. No. 20-1, Letter from Marjorie E. Berman, dated Aug. 2, 2005.) Euro Brokers seeks dismissal of the action pursuant to Rule 37(b)(2)(c) or, alternatively, such order as the Court deems just, for plaintiff's repeated violations of Court orders and "failures to prosecute this action." (Id. at 1.) For the reasons that follow, the Court denies the motion in part and grants the motion in part. The Court orders that plaintiff's counsel be sanctioned in the amount of $4,665.00, representing a portion of the attorney's fees incurred by Euro Brokers. Plaintiff shall remit payment to Euro Brokers within twenty-one days of the date of this Opinion and Order, or April 20, 2006.
Plaintiff commenced this action on February 18, 2005, alleging that as a survivor of the September 11, 2001 attack on the World Trade Center, she suffers severe emotional and physical injuries due to her proximity to the attack. Plaintiff asserts claims for wrongful termination pursuant to the Family Medical Leave Act, 29 U.S.C. § 2617 (a), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq., against her former employer, defendant Euro Brokers, and seeks disability benefits pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., under a disability plan issued by defendant First Unum Life Insurance Company. (See Doc. No. 1, Complaint.)
A. The Orders Giving Rise to the Sanctions Motion
In its motion for sanctions, Euro Brokers identifies three Court orders with which plaintiff failed to comply:
(1) the Court's Order Governing the Initial Conference, dated May 11, 2005, (2) the Court's order of June 16, 2005, and (3) the Court's order of June 28, 2005.
1. The Court's Order Governing the Initial Conference, Dated May 11, 2005
On May 11, 2005, following the filing of the complaint, the Court issued a pretrial order, pursuant to Rules 16 and 26 of the Federal Rules of Civil Procedure, scheduling an initial conference on June 16, 2005 before the undersigned. The order, inter alia, directed that plaintiff confirm that defense counsel were aware of the initial conference, and ordered that prior to the initial conference, the parties exchange Rule 26(a)(1) mandatory disclosures and confer regarding a discovery scheduling plan and initial conference questionnaire.
By letter dated June 10, 2005, Marjorie Berman, Esq., counsel for Euro Brokers, informed the Court that she had attempted to confer with plaintiff's counsel regarding a discovery plan and mandatory disclosures, but had "been unsuccessful in making contact with her," by email and telephone. (Doc. No. 8.) Counsel for Euro Brokers also reported that plaintiff's counsel had not complied with the Court's order that plaintiff confirm defense counsel's attendance at the June 14 initial conference, and had not served an amended complaint by May 13, 2005, as ordered on an endorsed letter by Judge Charles P. Sifton on April 26, 2005. (See id.)
2. The Court's Order of June 16, 2005
On June 16, 2005, plaintiff and Euro Brokers appeared by their respective counsel for the initial scheduling conference. Defendant First Unum did not appear, despite plaintiff's counsel's representation that she had informed First Unum's counsel of the conference. At the initial conference, the Court ordered, inter alia, that the parties provide mandatory Rule 26(a) initial disclosures, and that plaintiff provide authorizations for medical, insurance and financial/employment records by June 24, 2005, and that the parties propound written discovery demands by July 5, 2005. (Minute Entry of 6/16/06.) In response to plaintiff's counsel's uncertainty as to when her client would be available to provide the disclosures and authorizations, the Court advised counsel that although the Court expected its orders to be followed, should she require more time, she should make a timely request for an extension showing why the extension was necessary.
By letter dated June 16, 2005, First Unum subsequently informed the Court that it had not been notified by plaintiff's counsel of the initial conference date and requested a telephone status conference with the Court. (Doc. No. 10, Letter from Patrick Begos, Esq.) Consequently, the Court scheduled a telephone status conference for June 28, 2005, with all counsel.
3. The Court's Order of June 28, 2005
At the June 28, 2005 conference, plaintiff's counsel advised the Court that she still had not served plaintiff's Rule 26(a) disclosures or provided authorizations for medical, insurance and financial records, notwithstanding the Court's previous orders that plaintiff do so by June 24, 2005. (See Doc. No. 20, Letter from Marjorie E. Berman, at 2; Minute Entry of 6/28/05.) The Court again reminded counsel that she should seek timely extensions of Court ordered dates, and granted plaintiff another extension -- until July 8, 2005 -- to serve Rule 26(a) disclosures and authorizations, as well as discovery demands, upon the representation of plaintiff's counsel that plaintiff and she could comply by that date. (Minute Entry of 6/28/06.)
On August 2, 2005, defendant Euro Brokers made the instant motion for sanctions, nearly one month after plaintiff again failed to meet the third Court ordered deadline of July 8, 2005 to serve Rule 26(a) disclosures and provide authorizations. Euro Brokers's application notes that plaintiff neither requested an extension of time, nor offered any explanation for the failure to comply with Court orders. It is undisputed that Euro Brokers has complied with the Court's orders, including serving Rule 26(a) disclosures and discovery demands. Euro Brokers seeks an order dismissing the action in its entirety pursuant to Fed. R. Civ. P. 37(b)(2)(C), or "such orders in regard to the failure as are just," pursuant to Fed. R. Civ. P. 37(b)(2). (Doc. No. 20-1, Letter from Marjorie E. Berman, dated Aug. 2, 2005.)
B. The Order To Show Cause Why Sanctions Should Not Be Granted
1. The Court's Order of August 2, 2005
In response to the sanctions motion by Euro Brokers, on August 2, 2005, the Court ordered plaintiff and her counsel to show cause, in writing via ECF, on or before August 10, 2005, "why defendant's request for sanctions, pursuant to Fed. R. Civ. P. 37, should not be granted for plaintiff's repeated failures to comply with court orders or timely seek extensions of time. Defendant shall file its reply, if any, on or before 8/17/05." (See Order dated Aug. 2, 2005.)
2. The Court's Order of August 5, 2005
In response to a letter dated August 2, 2005 from plaintiff's counsel, requesting that her client's time to serve initial disclosures and discovery requests be extended to August 26, 2005 (Doc. No. 21), the Court entered an order on August 5, 2005, granting plaintiff a fourth date, until August 12, 2005, by which to provide Rule 26(a) disclosures and authorizations, and to propound discovery. Plaintiff was advised that further extensions would not be granted and that if plaintiff failed to comply with the Court's extended date of August 12, the Court would recommend that plaintiff's action be dismissed, pursuant to Fed. R. Civ. P. 37 and 41(b). The Court's August 5 order also reminded plaintiff that, "as ordered on 8/2/05, she and her counsel are expected to show cause by ECF, on or before 8/10/05, why defendant Euro Brokers'[s] request for sanctions pursuant to Fed. R. Civ. P. 37 should not be granted. The plaintiff and her counsel must explain fully why they have failed to comply with this [C]ourt's orders . . . ." (Order dated Aug. 5, 2005.)
3. Plaintiff's Letter Dated August 11, 2005
On August 10, 2005, plaintiff did not respond to the Court's August 2, 2005 show cause order and did not seek an extension of the show cause deadline. By letter dated August 11, 2005, however, plaintiff's counsel claimed, among other things, that an "all day" arbitration on August 10, 2005 precluded her from speaking to her client and thus obtaining the information needed for her show cause submission, and that she could not electronically file a letter seeking an extension of time because her "email did not function." (Doc. No. 22.) Plaintiff also claimed that she could not "properly ECF [her] client's personal and confidential medical records [on August 10, 2005] but would have to deliver them to chambers to protect her privacy rights in an effort to oppose the sanctions application." (Id.) Plaintiff's counsel further represented that she was prepared to deliver plaintiff's Rule 26(a) disclosures to defendants the next day at the show cause hearing, and that plaintiff would deliver the medical authorizations to counsel's office the following Monday, August 15, 2005. (Id.)
Plaintiff's August 11, 2005 letter also asserted several grounds for denying defendant's Rule 37 motion: (1) plaintiff is disabled and needs "a reasonable amount of additional time" to meet with her attorney "when she is medically capable," and when plaintiff's husband is available to assist and transport her; (2) plaintiff's injuries are "well documented" in the medical records and her attorney "took the case just before [counsel] became partially disabled with ovarian cancer"; (3) plaintiff suffers from "Major Depression, Post Traumatic Stress Disorder, heightened fears of terrorism since the war, sleeplessness, personality changes, skin rashes, weight gain, suicidal ideations and on and on"; (4) defendant Euro Brokers refused to cooperate with plaintiff prior to the commencement of this suit; and (5) sanctions are unwarranted at this stage because the case was commenced in 2005 and was "relatively new." (Id. at 2-3.)
Plaintiff's counsel further offered to present testimony by her client at an evidentiary hearing. Plaintiff's counsel also indicated that she would "discuss a conflict of interest issue" at the next conference with the Court. (Id. at 3.) Plaintiff enclosed copies of documents relating to her disability claim, and copies of what appear to be notes from her treating psychologist, Dr. Maureen Kaley, dated between November 27, 2001 and September 2002.
4. The Show Cause Hearing
Plaintiff did not appear for testimony at the show cause hearing on August 12, 2005, because she was out of town. During the show causing hearing, the plaintiff's counsel provided Rule 26(a) disclosures to the defendants, but not the supporting documentation and the authorizations for medical, insurance, and financial/employment records that had been ordered previously. The Court, yet again, ordered plaintiff to provide documents necessary to complete plaintiff's Rule 26(a) disclosures and the authorizations by August 19, 2005, notwithstanding that they were ordered to have been provided months earlier and that multiple extensions had been granted already. (See Minute Entry order dated Aug. 15, 2005, for Show Cause Hearing Held on Aug. 12, 2005.)
At the hearing, plaintiff's counsel advised that she had not propounded discovery demands by July 8, 2005, as previously ordered by the Court after multiple extensions. The Court again ordered that plaintiff propound discovery demands, and serve responses to Euro Broker's discovery demands, by September 9, 2005. (Id.)
The Court noted at the hearing that plaintiff's August 11, 2005 letter, in response to the order to show cause: (1) did not sufficiently set forth the dates and specific measures that plaintiff and her attorney took to comply with the Court's orders; (2) did not support plaintiff's claims of mental and physical incapacity with "current medical documentation regarding plaintiff's current mental, emotional and physical condition and the effect that her condition has on her ability to prosecute her action and comply with the Court's orders and respond to defendant's discovery requests"; and (3) did not explain why she failed to seek timely extensions of her time to respond to the Court's prior discovery orders. (Id.)
After discussion with plaintiff's counsel regarding supplemental submissions in support of her showing of cause why sanctions should not be granted, the Court ordered that by August 24, 2005, plaintiff and her counsel were permitted to supplement plaintiff's showing of cause by setting forth the specific dates and measures plaintiff took to comply with the Court's orders and the reasons why plaintiff did not timely seek extensions to comply with Court orders. The Court also ordered plaintiff to provide medical documentation of her current medical and mental condition with specific information regarding how her condition had affected her ability to prosecute her claim and respond to the Court's orders (e.g., "the extent to which plaintiff is unable to travel, use the telephone or complete and gather documentation such as her UNUM disability application, authorizations and documents responsive to defendant's discovery demands"). The Court further ordered that by September 9, 2005, in reply to plaintiff's supplemental showing of cause on August 24, Euro Brokers was to advise whether, in light of plaintiff's anticipated showing, it would pursue its sanctions motion. (Id.)*fn1
5. The Court's Order of August 24, 2005
By letter dated August 23, 2005, plaintiff's counsel timely sought an extension of the August 24, 2005 deadline to supplement her showing of cause. (See Doc. No. 23, Letter from Ruth M. Pollack, dated Aug. 23, 2005.) In her request, Ms. Pollack claimed that plaintiff's psychologist, Dr. Maureen Kaley, had called on August 22, 2003 to say that she had been away on vacation and had just started to compile plaintiff's medical documentation. Ms. Pollack's letter further stated that she "reasonably require[d]" an extended deadline of September 7, 2005 to include, as part of her supplemented show cause submission, information from health care providers "due to their schedules and my vacation of August 26, 2005 through September 5, 2005." (Id.)
By order dated August 24, 2005, the Court granted plaintiff's request for an extension until September 7, 2005, thereby providing a third opportunity for plaintiff to show cause why sanctions should not be imposed. (See Order dated Aug. 24, 2005.)
6. The Court's Order of September 8, 2005
On September 8, 2005, one day after the third show cause deadline had passed, plaintiff's counsel submitted another request to extend the deadline to September 16, 2005, so that she could receive reports from plaintiff's psychiatrist and psychologist. (See Doc. No. 24, Letter from Ruth M. Pollack, dated Sept. 8, 2005.) Ms. Pollack represented that the extension was necessary because plaintiff's physicians "have been on vacation and despite my calls . . . I could not relay the requirements to them except by a facsimile," and that plaintiff's psychologist, Dr. Maureen Kaley, "will be able to prepare the documentation required by this Court within the next week, possibly sooner." (Id.)
By order dated September 8, 2005, the Court granted the plaintiff a fourth extension until September 16, 2005, and again admonished plaintiff's counsel for failing to seek a timely extension to file plaintiff's Court ordered response to the order to show cause. The Court added that "Ms. Pollack . . . should not expect nor request any further extensions of time." (See Order dated Sept. 8, 2005.) In granting the extension, the Court observed that Ms. Pollack's September 8 letter to the Court failed to set forth the frequency, specific dates and means by which she attempted to ...