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Barney v. Edison Company of New York

March 28, 2007


The opinion of the court was delivered by: Trager, J.


On February 28, 2005, defendant Consolidated Edison Company ("Con Edison") filed a motion to dismiss the above action for failure to prosecute or, in the alternative, to close plaintiff's rights to take discovery, to preclude plaintiff's economic expert from testifying and to continue with the deposition of plaintiff. Docket Entry ("DE") 83. The motion was referred to United States Magistrate Judge Steven M. Gold for a Report and Recommendation. DE 87.

On July 19, 2006, Judge Gold issued a Report and Recommendation ("Report") recommending that the motion to dismiss be granted. DE 92. In the alternative, Judge Gold recommended that plaintiff be precluded from calling her expert witness at trial and also precluded from presenting any other witness that plaintiff did not identify and produce for deposition prior to the final discovery conference held on December 20, 2002. Report at 31-32. Judge Gold further recommended, in the event his recommendation of dismissal was not adopted, that 1) defendant be allowed to depose plaintiff regarding her Social Security file, 2) discovery be otherwise closed, 3) plaintiff's attorney, Stephen Mitchell, be directed to pay forthwith double the reimbursement amount he untimely paid to defendant and 4) defendant be awarded the attorney's fees and costs it incurred making the motion to dismiss. Report at 32.

Pursuant to Fed. R. Civ. P. 72(b) and an extension of time granted by the court, plaintiff filed objections to the Report on August 7, 2006. DE 95. Defendant responded to plaintiff's objections on August 21, 2006, to which plaintiff submitted a reply on August 30, 2006. DE 96, 97.


The facts underlying defendant's motion to dismiss are laid out extensively in the Report and Recommendation, and only a brief summary is necessary here. See Report at 1-12.

Plaintiff Dorothy Barney filed her complaint on February 10, 1999, alleging that defendant Con Edison discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2e to 2000e-17, in violation of the Age Discrimination Act of 1967, 29 U.S.C. §§ 621 to 634, and in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 to 12117. Compl., DE 2; Report at 1. On January 4, 2000, Mr. Stephen T. Mitchell filed a notice of appearance of behalf of plaintiff, and a discovery deadline was set for November 15, 2000. Report at 2.

The discovery deadline was altered numerous times. Report at 31; see DE 29, 30-34, 36, 49. Plaintiff's counsel was "granted dozens of extensions and adjournments" and consistently failed to complete discovery in a timely manner. Report at 15-16. Despite sanctions, threats of preclusion and warnings of dismissal, plaintiff's counsel failed to produce documents, failed to appear for depositions, cancelled depositions and consistently tried to reschedule depositions at the last minute.*fn1

Report at 15, 19-20. Ultimately, plaintiff's counsel was warned that plaintiff's case was on the verge of dismissal for failure to prosecute. See Tr. of Apr. 11, 2003 Hearing, DE 68, at 32.

On June 17, 2003, a status conference was held regarding the outstanding discovery in this case, and plaintiff's counsel was given a final opportunity to provide outstanding discovery. DE 73. Three main issues were raised at this conference that are particularly relevant to the current motion. First, plaintiff was ordered to produce the first names of the clients for whom her expert, Dr. Tinari, had testified in previous litigations.

Tr. of June 17, 2003, DE 78, at 14-15. If Dr. Tinari did not have the names, plaintiff was instructed to go to the court records in order to obtain them. Id. Second, defendant was directed to send plaintiff blank authorization forms in order to acquire plaintiff's tax returns from the IRS. Id. at 16-17. Plaintiff was to sign these authorizations and send them back to defendant. Id. Third, it was directed that plaintiff could only proceed with discovery if (1) plaintiff complied with the order regarding the first names in Dr. Tinari's expert report; (2) plaintiff provided defendant with authorizations from the IRS; and (3) all outstanding documents were turned over. Id. at 23. On December 20, 2004, more than a year and a half later, a status conference was held before Magistrate Judge Gold to see what progress had occurred. DE 82.

As of the status conference on December 20, 2004, these discovery issues remained largely unsettled. Minute Entry dated Dec. 21, 2004. First, with regard to plaintiff's expert report, plaintiff's counsel failed to provide the first names of the clients that the expert had testified on behalf of in previous litigations despite the court order to do so. Tr. of Dec. 20, 2004 Conference, DE 81, at 5. Second, with regard to plaintiff's tax forms, the parties were still arguing over whether the opposing side had fulfilled its end of the bargain regarding the authorization forms.*fn2 Id. at 4-5. Given the fact that plaintiff had still not provided defendant with adequate discovery, Judge Gold allowed defendant to submit formal motion papers to dismiss the case for failure to prosecute. Id. at 7. The motion to dismiss was referred to Judge Gold for a Report and Recommendation on May 9, 2005. DE 87. Subsequently, Judge Gold recommended that the case be dismissed. Report at 1.

Standard of Review

Pursuant to 28 U.S.C. ยง 636(b)(1), a district court reviews de novo those portions of the report and recommendation to which a party raises specific objections. However, "where objections are 'merely perfunctory responses,' argued in an attempt to 'engage the district court in a rehashing of the same arguments set forth in the original petition,' reviewing courts should review a report and recommendation for clear error." Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (quoting Vega v. Artuz, No. 97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002)). Plaintiff's objections here are not specific and are an attempt to rehash the same arguments she used to oppose the original motion. As such, the Report should be reviewed for clear error. However, even if the lower de novo standard were used, plaintiff's objections would fail. That said, because the ...

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