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MaCaluso v. Keyspan Energy

April 3, 2007

ANDREA MACALUSO, PLAINTIFF,
v.
KEYSPAN ENERGY AND ITS SUBSIDIARIES, AND EDWARD VANGULDEN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



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

ORDER

Before the court are two applications. The first is a motion by the defendants for sanctions pursuant to Rule 37, seeking a recommendation of dismissal of the complaint. Docket Entry [40]*fn1 . The second is an application from plaintiff's counsel, docketed as a "Motion for Recusal and Related Relief," and captioned as an "Affirmation/Memorandum of Plaintiff's Counsel in Support of Application for Relief from Prior Orders, Recusal Due to Conflict of Interest and Appearance of Impropriety." DE [59]. For the reasons set forth herein, the defendants' Rule 37 motion is denied to the extent that it seeks dismissal as a sanction for discovery abuses, but is granted to the extent that monetary sanctions in the form of attorneys' fees and costs, to be paid by plaintiff's counsel, Ruth Pollack, and not by the plaintiff herself, are awarded. Plaintiff's counsel's application is denied in its entirety.

Ms. Pollack is ordered to serve a copy of this Order on her client, Andrea Macaluso, no later than April 6, 2007, with proof of service to be filed with the court by ECF on the date of service. This case is deemed trial ready.

BACKGROUND

Both the motion and the application by plaintiff's counsel, Ruth Pollack*fn2 , must be viewed in the context of a detailed history of the course of discovery in this litigation, so that the remarkable failure of Ms. Pollack to comply with orders of this court or to prosecute this action in a timely manner can be fully understood. The action was commenced in February 2005, asserting claims of sexual harassment and wrongful termination against defendants KeySpan Energy and Edward Van Gulden. The plaintiff, Andrea Macaluso, has been represented from the outset by Ruth M. Pollack, and the defendants by John F. Hastings, Phillip R. Scott, and Shanell Parrish-Brown, in-house lawyers for defendant KeySpan, as well as by James Ryan, who entered an appearance on August 8, 2006, and other lawyers from Mr. Ryan's law firm, Cullen and Dykman, LLP, including Thomas B. Wassel.

1. The Discovery Process, and Plaintiff's Repeated Failure to Comply with the Court's Orders and Deadlines Regarding Discovery

On May 26, 2005, the undersigned So Ordered the parties' proposed joint discovery plan, which, inter alia, established February 15, 2006 as the discovery deadline, allowing the parties nine months in which to complete discovery. On June 16, 2005, the defendants docketed their Rule 26(a)(1) disclosure, incorrectly described in the docket as Requests to Admit. DE [9]. The defendants served their First Set of Interrogatories and First Request for Production of Documents on August 30, 2005. See DE [10]; DE [40-2, ¶4 & Ex. C]. In October 2005, the defendants served a notice for the deposition of the plaintiff, but did not conduct the deposition at that time because they had not received responses to their outstanding discovery demands. In fact, the defendants assert, and the plaintiff does not deny, full responses to those demands were not forthcoming until September 2006, more than a year after they were served. See DE [43-1, ¶17].

The court did not hear anything from the parties until February14, 2006,*fn3 one day before the discovery deadline was set to expire, when the defendants filed a letter motion seeking a sixty day extension of time to complete discovery, based on the plaintiff's failure to respond to the defendants' discovery demands. DE [10]. In their letter, the defendants reported that there was an ongoing arbitration regarding this matter. On February 16, the undersigned scheduled a conference for February 21, 2006. On February 17, two days after the discovery deadline had passed, the plaintiff filed a cross motion for an extension of time to complete discovery "due to arbitration delay." DE [11]. She stated that the parties had been in two arbitrations, but that discovery should now proceed and asked for a "reasonable enlargement." Neither party had previously contacted the court to inform the undersigned that the matter was in arbitration or to seek a stay of discovery. The conference took place on February 21, and Ms. Pollack, along with defense counsel - Shanell Parrish-Brown and John Hastings- attended. The undersigned extended the discovery deadline by more than four months, to June 30, 2006 and adjourned the pretrial conference from March 16 to July 11, 2006. DE [12].

On May 30, 2006, more than three months after the conference and one month prior to the extended discovery deadline of June 30, the defendants made a motion to compel, asserting that the plaintiff still had not responded to the discovery demands served in August 2005, nor had a deposition of the plaintiff been scheduled despite notice having been served on her. DE [13]. Defense counsel stated that, despite voice mail and email messages to Ms. Pollack in April, they had not heard back from her at that time. They also reported that an arbitration decision issued on May 4, 2006 had reinstated Macaluso's position at KeySpan but denied her back pay for the 19 months she had been out of the job. Defense counsel further reported conversations with Ms. Pollack during the week of May 15, in which they requested that Macaluso be produced for her deposition by June 8. Ms. Pollack, they reported, told them that the discovery responses would be faxed to them by May 19, but they were not sent. At some point, Ms. Pollack told Mr. Hastings that she was picking a jury on May 22 and that the discovery responses would be delayed. On May 23, Mr. Hastings stated, Ms. Pollack told him that she was busy with a trial and would not give him a date by which the outstanding discovery responses would be produced, nor a date for Macaluso's deposition. Thus, the defendants asked the court to compel discovery responses by June 8, 2006 and asked further that the plaintiff's deposition be held on June 15, 2006.

The court cannot report Ms. Pollack's version of the facts as set forth by Mr. Hastings in his May 30 letter motion, because that motion was unopposed by the plaintiff. On June 13, two weeks after the letter motion was docketed, the undersigned granted it, both on the merits and as unopposed. DE [14]. The order directed the plaintiff to produce the discovery responses, which were by then more than eight months late, by June 21, 2006 and to appear for a deposition by July 7, 2006. The July 11, 2006 pretrial conference was converted to a status conference. As of the filing of the defendants' letter on May 30, with one month remaining until the discovery deadline expired and with the arbitrations concluded, the plaintiff had apparently failed to serve any discovery demands of her own.

On July 7, Ms. Macaluso appeared for her deposition, apparently having produced some of the discovery responses ordered by the court, but, according to the defendants, not a complete response. The parties agreed to have a second day of deposition. DE [16, p.2]. A status conference was held on July 11, 2006, attended by Ms. Pollack and Mr. Hastings. The plaintiff was ordered yet again to produce all outstanding discovery responses, this time by July 31, 2006, and all depositions were ordered to be completed by August 31, 2006. DE [15]. At the conference, Ms. Pollack confirmed that although the discovery deadline had passed on June 30, she had not yet served any of the plaintiff's discovery demands. On July 11, the discovery deadline having been again extended, the defendants served their Second Request for Production of Documents. See DE [43-1, ¶10].

On August 2, 2006, the defendants filed a letter motion, informing the court that the plaintiff had again failed to produce her responses to the outstanding discovery requests, two of which had been served nearly a year earlier, despite the repeated orders of the court that she do so. DE [16]. The defendants sought a default judgment*fn4 pursuant to Rule 37. On Monday, August 7, the plaintiff filed a motion for an extension of time to respond to the Rule 37 motion, stating that she had been engaged in court-directed depositions in Albany, and could not "compile a cogent response to the unnecessary application of the defendants (Doc.16) within the days [sic] of Local Rule 37.3(1)." She asked that she be given until Friday, August 11 to respond and to "seek dates for all parties' depositions." DE [17]. Her response, she stated, would be a "more detailed and appropriate response to lay the issues to rest."

On August 8, a Tuesday, the undersigned granted the plaintiff's motion for an extension of time, directing that opposition to the defendants' motion must be filed no later than close of business on Friday, August 11, 2006. It was not. Instead, it was filed at 10:42 p.m. on that date, with an explanation by Ms. Pollack that it had been filed "slightly after close of business" due to an ECF issue. DE [19]. Given that "close of business" is commonly understood to mean 5:00 p.m., a filing at 10:42 p.m. can hardly be described as being "slightly after close of business." Two days later, the defendants filed another document, described in the docket as a "motion to dismiss." DE [20].

On August 15, the undersigned issued an order (DE [21]) addressing Docket Entries [16] (the defendants' motion for a default judgment), [19] (Macaluso's late-filed response to that motion), and [20] ( the defendants' second filing, docketed as a motion to dismiss). The court noted, first, that the ECF issue referenced by Ms. Pollack as a reason for her late filing had, according to the Clerk's Office, been resolved at approximately 4:45 p.m. on August 11 and that Ms. Pollack was well aware that her ECF account was functional at that time.*fn5 The court thus found Ms. Pollack's explanation for filing her papers more than five hours late to be disingenuous at best. The submission also violated the Local and Individual Rules, inasmuch as it was four pages in length. For these reasons, the opposition was rejected and the court announced its intention to treat the Rule 37 motion as unopposed. The court also noted that the second "motion to dismiss" was not a motion at all, but a reply that was incorrectly docketed.

The August 15 order recounted the plaintiff's repeated failures to comply with previous orders, but concluded that the plaintiff would be given a final opportunity to prosecute her case. She was ordered to fully respond to the both the first and second document demands no later than August 25, 2006 and to appear for the completion of her deposition no later than September 7, 2006. The defendants' Rule 37 motion (DE [16]) was denied, but the undersigned warned the plaintiff that if she failed to comply with the orders, I would recommend to District Judge Spatt that the case be dismissed for the plaintiff's failure to comply with court orders and failure to prosecute.

On Friday, August 18, 2006, the defendants filed a motion seeking an extension of time to complete discovery and asking that the plaintiff be precluded from deposing the defendants and employees of KeySpan. DE [22]. The defendants reported that they had received deposition notices for defendant Edward VanGulden and non-party KeySpan employees Ms. Zazzarino, Mr. Romano and Mr. Guckenburger by fax that morning, noticing the depositions to take place between Thursday, August 24 and Wednesday, August 30. They argued that such short notice was "patently unreasonable under the circumstances," inasmuch as the plaintiff had waited until 13 days before the close of discovery to notice the depositions, despite having had 18 months, since the inception of the lawsuit, in which to do so. The defendants also stated that both attorney and witness vacations would be impacted. They recounted plaintiff's failures to comply with discovery demands and the court's orders, and asked that she be precluded from deposing the defendants at all. In seeking yet another extension of the discovery deadline, they noted that on August 16 the plaintiff had served documents on them in response to the first demand for documents, but that the production had included no indication of what specific demands the documents corresponded to, and they awaited her further court-ordered production on August 25 to clarify the earlier production. That production never occurred.

The court waited until Tuesday, August 22 for a response from the plaintiff and then, because of the proximity of the dates, issued an order vacating the deposition notices, reiterating the plaintiff's court-ordered production as set forth in the August 15 order, and staying discovery other than plaintiff's court-ordered responses. The plaintiff's opposition to the August 18 motion was not late; the court simply had to take immediate action. The order did not preclude the plaintiff's deposition of the defendants and their witnesses, but concluded that "[a]t the conference on September 12, firm deadlines will be set for the completion of discovery, including the cancelled depositions." DE [23].

The next day, August 23, the plaintiff filed an "Emergency Motion for Extension of Time to file Response to Motion of Defendants re: discovery." DE [24]. She asked for a one day extension - until August 24- to allow her to file opposition to the defendants' motion of August 18. Inasmuch as the depositions were scheduled to commence on August 24, it is unclear how Ms. Pollack thought that a response filed on that day would have been of any use in resolving the issue of whether the depositions should be cancelled. It is equally unclear why she made the motion at all, in light of the court's order of August 22. The "emergency" motion was denied as moot by electronic order docketed on August 24. The court noted that the defendants' motion had already been decided, as Ms. Pollack should have seen on the docket when she made her emergency motion, but also indicated that she would have an opportunity to present her suggestions for completing discovery at the conference on September 12.

On August 30, the defendants moved to "correct" the court's order of August 15 and to renew their earlier Rule 37 motion. DE [25]. They reported that the plaintiff had failed to comply with any of the orders directing her to complete all of her outstanding discovery obligations, including the most recent one of August 15 that required production by August 25, an order that had been reiterated in the order of August 22. They indicated their intention to raise the issue of dismissal, which the plaintiff was previously warned would be the result of her failure to comply, at the September 12 conference. They noted that pursuant to the August 15 order, the plaintiff's deposition was to take place on or before September 7, but they asked that the September 7 deadline be put off until the plaintiff fully complied with her discovery obligations. Given the proximity of the date set for plaintiff's deposition, and the imminent Labor Day weekend, the court granted the motion on September 1, removing the requirement that Macaluso's deposition be completed no later than September 7, but reiterating that all other requirements set forth in that August 15 order remained in effect.

On August 31, the defendants moved for permission to videotape the plaintiff's deposition. DE [26]. On September 5, the plaintiff opposed that motion, noting her willingness to appear for the second day of her deposition on September 7, as ordered by the court, but charging that the defendants had not consulted with her about the dates when Macaluso or Pollack would be available or about the videotaping, thus violating the meet and confer rule. DE [27]. She argued that there was no reason to videotape and that videotaped depositions are "intimidating and the camera is be [sic] unfairly used to portray the party and her counsel in a false light." She accused the defendants of engaging in "a stall tactic," and employing a "ruse to prevent us from going ahead."

Despite having been ordered to produce her full responses to the defendants' First Demand for Documents by three separate orders dated June 21, July 31, and August 25, and to respond to their Second Demands for Documents by August 25, that date passed without any responses from the plaintiff being served. Instead, on September 1, she served responses to the defendants' Second Demand for Production of Documents, and, on September 6, additional responses to the defendants' First Demand for Production of Documents, served on her on August 30, 2005, more than a year earlier. DE [43-1, ¶¶16&17].

On September 11, at 8:06 p.m., the night before the September 12, 11:30 a.m., conference that had been scheduled since August 15, Ms. Pollack electronically filed a letter motion seeking to adjourn the conference or move it to a later time, based on a conflict in the Southern District. DE [29]. Ms. Pollack stated that she had called the defense attorneys earlier that day, and they had taken "no position" on her request. She asked that the conference be rescheduled and reported that she was beginning a trial before Judge Spatt on September 18. She also stated that she had completed her discovery obligations, but that the defendants had not, and that she would have to make a motion because they ignored her meet and confer letters. No motion to compel by the plaintiff was, however, made at that time, nor at any other time.

The defendants responded to Pollack's request for an adjournment in a letter that was docketed at 10:25 a.m. on September 11, ten hours before Ms. Pollack's letter motion was filed with the court. DE [28]. The defendants stated that the conflict on which Pollack's eleventh hour request to adjourn was based had been scheduled on August 22, 2006, three weeks earlier, and after this court had scheduled the September 12 conference in this matter, but that she waited until the day before the conference to raise the issue. They took no position on the request, but did note alternate dates on which they were available. In a reply letter that is not permitted by the Local or Individual Rules, Pollack accused defense counsel Ryan, inter alia, of using "desultory remarks with aplomb" [sic]. DE [30].

The undersigned did not receive Pollack's motion to adjourn until the morning of September 12, the day of the conference. It is unclear why Ms. Pollack called the defendants early in the day on September 11, but did not file her motion with the court until after she knew chambers would be closed for the day. Moreover, Ms. Pollack did not call chambers on the morning of September 12 to inquire if the conference had, in fact, been adjourned. On September 12, the undersigned issued an order denying the untimely request to adjourn and noting Pollack's apparent assumption that her request would be granted as a matter of course, despite her failure to contact the court in a timely manner. DE [31]. Defense counsel appeared for the conference, and the court indicated "no appearance" on the civil conference sheet for the plaintiff. A new conference was scheduled for September 22, 2006, and the court noted that discovery remained stayed until that date.

On September 22, counsel for both parties appeared. At the conference, the court granted the defendants' motion to videotape Macaluso's deposition and ordered the plaintiff to appear for her continued deposition on October 4, 2006 at 9:30 a.m. DE [33]. A new discovery deadline of October 31, 2006 was set from the bench. The defendants were ordered to respond to all outstanding discovery demands (which were made in early September and were not overdue) by October 31, 2006. They were also ordered to comply with the previously served notices for deposition no later than October 31, 2006. Dates for the defendants' depositions were not set, the court leaving that to counsel.*fn6 The deadline for initiating the dispositive motion process was extended to November 10, 2006, and the plaintiff was ordered to produce, by October 3, 2006, a copy of an allegedly pornographic videotape that she claimed had been given to her by her supervisor at KeySpan. The pretrial conference was scheduled for November 16, 2006 at 10:00 a.m. The court also gave the defendants permission, to the extent that permission was required, to move to dismiss pursuant to Rule 37, based on the plaintiff's habitual failure to comply with court orders regarding discovery.

On October 4, Macaluso appeared for her continued deposition, during which Ms. Pollack objected to certain questions and directed Macaluso not to answer. As explained in a later motion from the defendants (DE [35]), Pollack objected to questions about two disciplinary actions against plaintiff, actions that are referred to as the "bagel shop incident" and the "side work incident." The first incident resulted in a five day suspension of Macaluso and the second incident resulted in her being terminated, although she was later reinstated, without back pay, as a result of an arbitration. When Macaluso was questioned about these incidents at her deposition, Pollack stated that there may have been a stipulation between Macaluso's union and KeySpan that precluded plaintiff's response and that the questions were outside the scope of the case. She also claimed that Macaluso feared that answering them would jeopardize her personal safety. According to the defendants, during the afternoon of the deposition, Macaluso became unable to continue and Pollack agreed to produce her for another day of questioning if the court agreed. DE [35, p.2].

The parties called chambers from the deposition for a ruling, and they were told to call back the next day at 1:30, to give Ms. Pollack a chance to review documents that the defendants believed would resolve the objections. The next day, October 5, before the time for the conference call, defense counsel sent Pollack an email attaching those documents -- a signed settlement agreement from the bagel shop incident and part of the transcript from the side work incident -- both allegedly illustrating that there was no basis for Pollack's objections. DE [43-11]. The parties called chambers and spoke with one of the undersigned's law clerks. Ms. Pollack told the clerk that she had not seen the defendants' email and that she did not know of a date in October when the plaintiff could be produced for the continuation of her deposition, owing to Pollack's own prior commitments, despite the court's ruling that discovery would close on October 31.

At the conference with the clerk, the parties also discussed the depositions of the defendants' witnesses. Defense counsel stated he had sent Pollack a list of dates when they were available, but had not heard back from her. She stated that she did not know if she would be able to depose the defendants' witnesses in October, despite the fact that the deadline for doing so was October 31 and no request for an extension of that date had been made. She was advised by the clerk that, given the impending and final discovery deadline, she needed to make this case a priority. Pollack agreed that she would get back to defense counsel with proposed dates for all of the remaining depositions and that she would seek a modification of the undersigned's September 22 order that established the deadlines. As discussed infra, she did not do so. Five days later, on October 10, Pollack engaged in an email exchange with defense counsel, in which she responded to Wassel's October 5 email and, for the first time, agreed to "review and respond" to the ...


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