The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge
Defendant City of New York moves this court for an order pursuant to 28 U.S.C. § 1927 and Rules 37(c)(1), (b)(2)(B) and (b)(2)(C) of the Federal Rules of Civil Procedure dismissing plaintiff's action in its entirety, or in the alternative, precluding plaintiff from asserting those claims for damages for which disclosure has been inadequate, and for monetary sanctions including attorneys' fees. Defendant further notes that plaintiff's complaint does not and cannot plead a denial of access to the courts claim, and that plaintiff has neither quantified her claim nor provided any discovery regarding the claim. (See docket no. 62, City's Motion to Dismiss and for Sanctions, dated June 13, 2007 ("City's Motion"), at 1.) On June 29, 2007, plaintiff filed a Response in Opposition (see doc. no. 66, Plaintiff's Letter in Opposition, dated June 29, 2007 ("Pl.'s Opp.")), and, with the court's permission, the City replied on July 11, 2007 (see doc. no. 69, Reply filed by defendant, dated July 11, 2007).
For the reasons set forth herein, the court hereby denies the City's motion to dismiss this action and to impose monetary sanctions, including attorneys' fees. Instead, the court orders that plaintiff may not introduce, nor may her expert(s) rely upon, any evidence regarding her damages calculations and any additional evidence which has not already been produced in support of her damages claims. Finally, the court also respectfully recommends that the district court dismiss plaintiff's denial of access to the courts claim.
Plaintiff in this action, Carolyn Lopez, individually and as administrator of the estate of her son, Carlos Lopez, seeks damages pursuant to 42 U.S.C. § 1983 and the common law claims of negligence and respondeat superior for the alleged wrongful death of her son. (See doc. no. 1, Verified Complaint, dated August 1, 2005, at Counts I-VII.) Plaintiff alleges that on the afternoon of May 1, 2003, New York City police officers, after hearing gunshots, misidentified Carlos Lopez as the shooter of victim James Hodges, shot Lopez without probable cause, and thereafter refused to provide Lopez with emergency medical treatment before he died of his wounds. (Id. at ¶¶ 1-2.) Plaintiff further alleges that, "as a result of his wrongful death, Carlos Lopez was caused to leave behind a son who is without parental guidance . . . ." (Id. at ¶ 4.)
Pursuant to an initial conference held on December 20, 2005, the parties exchanged mandatory disclosures as required by Rule 26(a) of the Federal Rules of Civil Procedure. (See Minute Entry, dated 12/20/05.) In plaintiff's initial disclosures, dated January 9, 2005, plaintiff stated that she seeks damages on behalf of her son, Carlos Lopez, for wrongful death, conscious pain and suffering, fear of impending death, loss of earnings, loss of enjoyment of life, violation of civil rights, punitive damages and funeral expenses. (Doc. no. 43, Exh. A, Plaintiff's Initial Disclosures at 2.) As to herself, plaintiff seeks damages for denial of access to the courts, loss of support, loss of services, grief, sorrow, anxiety, loss of companionship and loss of enjoyment of life. (See id.) In her Rule 26(a) disclosures, plaintiff further seeks damages on behalf of herself for loss of parental guidance (see id.), and the court questions whether such a claim more appropriately belongs to the estate of Carlos Lopez. No damages claims were listed on behalf of Carlos Lopez's alleged son, Carlos Lopez, Jr., who is not a plaintiff in this action. (See id.) Plaintiff has failed to provide calculations, the method of calculation or precise numbers for any of the damages claims, as required by Rule 26(a)(1)(C), despite this court's orders that she do so.
Thereafter, defendant embarked upon a more than two year effort to discover the bases for plaintiff's damages claims. On January 23, 2006, defendant served its First Set of Interrogatories and Document Requests. (See doc. no. 45, Exh. B, the City's First Set of Interrogatories and Request for Production of Documents.) Interrogatories numbers 4 and 5, as well as Document Requests numbers 1, 13, 17, 21, 22 and 25, sought information and documents relating to plaintiff's damages claims:
Interrogatory 4: Identify all economic injuries claimed by plaintiff on her own behalf, or on behalf of the decedent or his estate, as a result of the [May 1, 2003 shooting], including but not limited to, expenditures for medical, psychiatric, or psychological treatment; lost income; property damage; and attorneys fees. Identify the specific amounts claimed for each injury.
Interrog. 5: Identify all of plaintiff's and decedent's employers for the past ten (10) years, including the name, telephone number and address of each employer and the dates of each employment.
Document Request 1: Produce all documents identified in the proceeding Interrogatories.
Doc. Request 13: Produce all documentation of damages that plaintiff alleges stem from the [May 1, 2003 shooting], including but not limited to, expenditures for medical, psychiatric, or psychological treatment; lost income; property damage; and attorneys fees. Documentation includes, but is not limited to, paid and unpaid bills, original purchase receipts, cancelled checks, charge slips, appraisals, and warranties.
Doc. Request 17: If the plaintiff is claiming lost income in this action, produce plaintiff's federal and state income tax returns since the [May 1, 2003] shooting and for the five years prior to the incident.
Doc. Request 21: Complete and provide the annexed blank authorizations for release of employment records for each of plaintiff's employers for the past ten (10) years.
Doc. Request 22: Complete and provide the annexed blank authorization for the unemployment records, if any, of plaintiff.
Doc. Request 25: Complete and provide the annexed blank authorization for plaintiff's Medicare and/or Medicaid records. (See id.)
On April 4, 2006, plaintiff responded in part to defendant's Interrogatories, but the record is unclear as to whether or how plaintiff responded to defendant's Document Requests. (See doc. no. 45, Exh. C.) In response to Interrogatory Number 4, plaintiff stated that she sustained the following special damages (but does not delineate whether she sustained the damages in her personal capacity or as administratrix of Carlos Lopez's estate):
A. Loss of support from the decedent, estimated at an amount in excess of . . . . $2,000,000.00
B. Funeral, burial and related expenses, estimated at an amount in excess of . . . . $7,500.00
C. Parental guidance . . . . $2,000,000.00
D. Conscious pain and suffering . . . . $2,000,000.00
E. Civil Rights violation . . . . $2,000,000.00
F. Attorneys' fees . . . . to be determined following the trial in this matter.
That plaintiff may seek to prove further and/or additional specific damages and losses. (Id.) In response to Interrogatory Number 5 seeking the decedent's and plaintiff's employment information, plaintiff stated: "Plaintiff is in the process of attempting to locate information relating to this request and will provide upon receipt." (Id.)
On August 10, 2006, defendant moved to compel plaintiff to respond to its Interrogatories and Document Requests, including all discovery demands for plaintiff's damages calculations and documents relied upon in support. (See doc. no. 36, City's First Motion to Compel, dated 8/10/06.) The court granted defendant's motion on August 18, 2006, and ordered plaintiff to respond to defendant's discovery demands by August 22, 2006. The court further cautioned plaintiff that, "should she fail to comply with this order, she may be subject to sanctions, including but not limited to a recommendation that the case be dismissed." (see order dated 8/18/06.)
On November 27, 2006, defendant again moved to compel plaintiff to respond to its Interrogatories and Document Requests. (Doc. no. 43, City's Second Motion to Compel, dated 11/27/06.) Defendant argued that plaintiff's Rule 26(a) Initial Disclosures were inadequate by, inter alia, failing "to specify or provide a computation of damages, including pecuniary damages as required by 26(a)(1)(C)." (Id. at 1.) Defendant also argued that plaintiff's responses to defendant's Interrogatories, including Interrogatories Numbers 4 and 5, were insufficient, and that defendant was "being severely prejudiced by plaintiff's continued delay." (Id. at 3.) Once again, the court agreed and, on November 28, 2006, ordered plaintiff to respond to defendant's discovery demands. (See order dated 11/28/06.)
Nevertheless, on January 4, 2007, January 10, 2007, January 11, 2007, February 15, 2007, March 6, 2007 and April 13, 2007, defendant was again forced to request from plaintiff evidence in support of her damages claims. (City's Motion at 2, Exhs. C, D and E; Order dated 4/13/07.) Accordingly, at a status conference held on April 13, 2007, the court ordered:
Defendant shall notify plaintiff by 4/17/07, of the outstanding discovery it seeks regarding plaintiff's damages claims and her calculation of damages. Plaintiff shall respond fully by 4/30/07, or face defendant['s] motion to preclude. (Order dated 4/13/07, emphasis added.)
Defendant duly notified plaintiff of all outstanding discovery on April 17, 2007. (See City's Motion, Exh. A, Letter from defendant, dated 4/17/07.) Defendant stated that, first, "plaintiff has failed to provide calculations of damages and evidence in support of several damage claims, as required by Fed. R. Civ. P. 26(a)(1)(C), including: loss of support; loss of services; loss of parental guidance; lost earnings; and denial of access to the Courts." (Id., Exh. A at 1.) Second, defendant again requested that plaintiff respond to Interrogatories Numbers 4 and 5, and Document Requests Numbers 1, 13, 17, 21, 22, and 25. (Id.) Third, defendant noted that plaintiff failed to respond in any way to the City's Second Set of Interrogatories and Document Requests. (Id.) Fourth, defendant stated,
[N]o documents have been produced or releases provided in support of the claims of loss of support, lost earnings, or loss of services, such as prior employment records, tax returns, or public assistance records (other than social security), either of plaintiff or the decedent. No proof of paternity for the decedent's purported child ...