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Burgie v. Euro Brokers

June 11, 2007


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff Maritza Burgie brings this action against defendants Euro Brokers, Inc. ("Euro Brokers") and First Unum Life Insurance Company ("First Unum") alleging that Euro Brokers terminated her employment in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §2617(a), the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §1001 et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12101, et seq., and that First Unum denied her benefits under her disability policy in violation of ERISA and the ADA and in breach of its contract with her. Now before this Court is an appeal by plaintiff's counsel Ruth Pollack, Esq ("Pollack")*fn1 from the opinion and order of Magistrate Judge Matsumoto, granting in part defendant Euro Brokers' motion for sanctions for discovery abuse pursuant to Fed. R. Civ. P. 37.*fn2 For the reasons set forth below the Magistrate Judge's opinion and order is affirmed.


Familiarity with the underlying facts of this case, as set forth in prior decisions, is presumed. Only those facts relevant to the present motion are discussed.

On February 18, 2005 plaintiff filed her complaint. Because plaintiff wished to file an amended complaint and defendants wanted more time to answer the complaint, on April 26, 2005 the parties requested, and I established, the following schedule: (1) plaintiff to serve and file her amended complaint by May 13, 2005; (2) defendant Euro Brokers to respond to the complaint by June 9, 2005; (3) plaintiff to respond to any motion filed addressed to the complaint by defendant Euro Brokers by July 18, 2005; and (4) defendant Euro Brokers to serve its reply brief by August 1, 2005. On May 11, 2005 the Magistrate Judge issued a pretrial order scheduling an initial conference on June 14, 2005.

The order directed the parties to exchange Rule 26(a)(1) mandatory disclosures and confer with each other regarding a discovery scheduling plan and initial conference questionnaire prior to the June 14, 2005 conference, and directed plaintiff's counsel to confirm that defense counsel for both Euro Brokers and First Unum were aware of the conference.

Plaintiff did not serve or file her amended complaint by the May 13, 2005 deadline. In order to comply with the April 26, 2005 order, on June 9, 2005 defendant Euro Brokers filed its answer to the original complaint. By letter dated June 10, 2005, Marjorie Berman ("Berman"), counsel for defendant Euro Brokers, informed Magistrate Judge Matsumoto that she had emailed and telephoned plaintiff's counsel in order to discuss a discovery plan and mandatory disclosures as required by the May 11, 2005 order, but had received no response. Berman also noted that plaintiff had failed to serve her amended complaint, as directed in the April 26, 2005 order, and had not confirmed defense counsel's attendance at the June 14, 2005 conference, as required by the initial conference order.

On June 14, 2005 the initial conference was held. Despite plaintiff counsel's representation that she had informed defendant First Unum's counsel of the conference, no one appeared at the conference on behalf of First Unum. At the conference, the Magistrate Judge ordered that (1) the parties complete Rule 26(a) initial disclosures, and the plaintiff provide authorizations for the release of medical, insurance, and financial records by June 24, 2005; (2) written discovery requests be served by July 5, 2005; and (3) the parties appear for a status conference on August 12, 2005. When plaintiff's counsel stated that she was not certain when the plaintiff would be able to provide the required documents. Magistrate Judge Matsumoto directed plaintiff's counsel, if plaintiff required an extension, to make a timely request, explaining why the extension was necessary.

On June 16, 2005 counsel for defendant First Unum informed the Magistrate Judge that it had not been notified of the June 14, 2005 conference by plaintiff's counsel, and requested a status conference. A telephone status conference was scheduled for June 28, 2005.

At the June 28, 2005 conference, plaintiff's counsel advised that plaintiff had not served Rule 26(a) disclosures or provided authorizations, although the June 14, 2005 order required they be served by June 24, 2005. The Magistrate Judge granted an extension, and directed plaintiff to serve the Rule 26(a) disclosures, authorizations and discovery demands on defendants by July 8, 2005.

On July 22, 2005 counsel for defendant First Unum informed the Magistrate Judge that although both defendants had served their Rule 26 disclosures, plaintiff had yet to provide defendants with its initial disclosures or authorizations, despite the July 8, 2005 deadline. Plaintiff also had not served any discovery demands, although all demands for discovery were also to have been served by July 8, 2005.

On August 2, 2005 defendant Euro Brokers moved for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, based on plaintiff's repeated failure to provide discovery as required by the Magistrate Judge's orders and plaintiff's counsel's "callous disregard for her responsibilities." In its motion Euro Brokers noted that plaintiff has failed to provide discovery in violation of the May 11, 2005, June 14, 2005 and June 28, 2005 court orders "without so much as a courtesy phone call, a request for an extension of time to comply or an explanation for the delay." The Magistrate Judge responded to this motion by directing plaintiff and her counsel to show cause by August 10, 2005 why defendant Euro Brokers' motion for sanctions should not be granted.

By letter dated August 2, 2005, plaintiff's counsel requested her client be granted an extension of time to August 26, 2005 to provide Rule 26(a) discovery, authorizations, and discovery demands. On August 5, 2005, the Magistrate Judge allowed plaintiff an extension until August 12, 2005 to submit the required papers. The Magistrate Judge stated that no further extensions would be granted and that "if [plaintiff] fails to comply fully by 8/12/05, this court will recommend that plaintiff's action be dismissed pursuant to Fed. R. Civ. P. 37 and 41(b)." The Magistrate Judge also reminded plaintiff and plaintiff's counsel that they were required to show cause by August 10, 2005 why sanctions should not be imposed against them.

Plaintiff's counsel responded by letter dated August 11, 2005 in which she explained that she did not become aware of the August 5, 2005 order until Tuesday, August 9, 2005, due to problems with her computer, and had attended an all day arbitration on August 10, 2005. Plaintiff's counsel stated that plaintiff had completed the forms requested by defendant First Unum, and that plaintiff's counsel would bring those documents as well as the Rule 26(a) disclosures to court for the August 12, 2005 conference. Plaintiff's counsel also stated that in responding to the motion for sanctions, she could not file her client's medical information on ECF because of confidentiality concerns, and that she would not have authorizations at the hearing, but should have them by Monday, August 15, 2005.

Plaintiff further argued in the August 11, 2005 letter that the motion for sanctions should be denied for a number of reasons: (1) plaintiff requires accommodation because of her disability and the fact that her husband who assists her works full time; (2) the motion for sanctions was inappropriate in light of Euro Brokers' knowledge of plaintiff's disability; (3) a hearing as to the extent of plaintiff's disability would show that sanctions are improper; (4) Euro Brokers refused to cooperate with plaintiff's counsel's efforts to reach an amicable resolution and avoid a lawsuit; (5) the case was relatively new, as it was commenced in 2005; (6) there was a conflict of interest issue that plaintiff wished to address. Attached to this letter were copies of documents relating to plaintiff's disability claim and what appeared to the Magistrate Judge to be copies of notes from plaintiff's treating psychologist dated between November 2001 and September 2002.

At the August 12, 2005 hearing the plaintiff's Rule 26(a) disclosures were provided to defendants without supporting documentation. The authorizations for the release of medical, insurance and financial records were not produced. The Magistrate Judge ordered these documents be supplied to defendants by August 19, 2005. Plaintiff's counsel advised that she had yet to serve discovery demands, and the Magistrate Judge ...

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