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Cross v. Village of Cooperstown

November 2, 2007


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



Plaintiff filed a complaint on May 6, 2004, against Defendants Village of Cooperstown ("Village"), County of Otsego, and Codes Officer David West, alleging a number of claims arising from Plaintiff's December 2000 arrest for local building-code violations. See Complaint Attachment ("Compl. Attach.") at ¶¶ 5-10. Currently before the Court are Defendants' motions to dismiss Plaintiff's action pursuant to Rules 16(f), 37(b)(2)(C), and 37(d) of the Federal Rules of Civil Procedure. Also before the Court is Plaintiff's motion to sanction Defendant Village of Cooperstown.


Plaintiff was charged on or about December 19, 2000, with building-code violations and willful non-compliance with remedial orders concerning property located in the Village of Cooperstown, New York. See id. at ¶¶ 5-6. On May 9, 2001, the criminal charges against Plaintiff were dismissed. See id. at ¶¶ 9-10. He then filed a civil complaint in Otsego County Supreme Court on August 6, 2002, against the same parties named as defendants in the present matter. See Affidavit of Gabrielle Hope ("Hope Aff."), sworn to December 23, 2004, at Exhibit "A." All claims against Defendants in the New York Supreme Court proceedings are identical to those at issue in this case, save for the addition of a due process claim against Defendant Village alleging that its attorneys lied about their receipt of Plaintiff's Notice of Claim. See id. Specifically, Plaintiff asserted that Defendants "and neighbors conspired to bring the said charges as a punitive and vindictive reaction to plaintiff who refused to accept responsibility for a property which he did not own." See Compl. Attach. at ¶¶ 5-6; Hope Aff. at Exhibit "C." The state-court complaint was ultimately dismissed on May 18, 2004, because Plaintiff failed to comply with discovery requests, attend a court-ordered deposition, and respond to a demand for a bill of particulars. See Hope Aff. at Exhibit "C."

After Plaintiff filed this action on May 6, 2004, he properly served Defendants with a copy of the summons and complaint. See Return of Service dated September 9, 2004. However, Defendant Village failed to answer, and the Clerk of Court entered a notice of default against it on November 17, 2004. See Entry of Default dated November 17, 2004. Magistrate Judge Lowe subsequently granted Defendant Village's motion to vacate the entry of default pursuant to Rule 55(c), holding that the default was not willful and that permitting Defendant Village to file an answer would not prejudice Plaintiff because discovery had not yet begun. See Order Vacating Entry of Default dated March 14, 2005. Plaintiff did not respond to Defendant Village's Motion to Vacate the Entry of Default within the appropriate time frame. Only later, on April 19, 2005, did Plaintiff request an extension to appeal the order due to illness, which Magistrate Judge Lowe granted. See Letter Request and Order dated April 19, 2005.

This was not the first time Plaintiff had complained about an illness. He was scheduled to be deposed at the Konstanty Law Office on December 16, 2004. See Letter from James Konstanty dated January 20, 2005. In lieu of attendance, Plaintiff mailed a letter, which the Court received on December 16, 2004, requesting a ninety-day stay in the proceedings due to illness. See Letter Request and Order dated December 16, 2004. Magistrate Judge Lowe granted his request pending a valid physician's report, but he lifted the stay on January 24, 2005, after Plaintiff failed to produce adequate proof of his inability to proceed. See Letter Request and Order dated December 16, 2004; Order dated January 6, 2005; Letter from James Konstanty and Order dated January 24, 2005.

On March 14, 2005, Magistrate Judge Lowe scheduled a pretrial telephone conference for April 5, 2005. See Order dated March 14, 2005. However, on the date of the conference, Plaintiff could not be reached at the phone number he had listed. See Affidavit of James Cunningham ("Cunningham Aff."), sworn to June 30, 2005, at ¶ 5. Plaintiff did not attempt to contact Defendants or Magistrate Judge Lowe's chambers to request an adjournment of the conference. See Order dated April 6, 2005. As a result, Magistrate Judge Lowe issued an Order placing Plaintiff on notice that, if he failed to comply with discovery requests and deadlines set forth in the Uniform Pretrial Scheduling Order, the Court would consider a motion for sanctions, including the striking of pleadings or dismissal of the complaint. See id. Again, on May 27, 2005, Magistrate Judge Lowe issued an Order setting a telephone conference for June 7, 2005. See Order dated May 27, 2005. Plaintiff failed to appear for that conference and could not be reached by telephone. See Cunningham Aff. at ¶ 7. Magistrate Judge Lowe then ordered Plaintiff's deposition to go forward on June 22, 2005, at the United States Courthouse in Syracuse, which Plaintiff also failed to attend. See Deposition of Larry Cross dated June 22, 2005, at 3.

Plaintiff requested a 120-day stay on October 19, 2005, asserting as before that his medical condition prevented his participation in this matter. See Plaintiff's Motion dated October 19, 2005, at ¶ 2. The Court denied his request but granted him one extra week to respond to the pending motions to dismiss. See Order dated October 25, 2005. Following the Court's October 25, 2005 Order, Plaintiff requested an extension of time due to illness in a variety of forms on November 1, November 9, and November 14, 2005. See Plaintiff's Motion dated November 1, 2005, at ¶¶ 2, 4, 8; Appeal of Magistrate Judge's Decision at ¶¶ 2-5; Plaintiff's Motion dated November 14, 2005, at ¶¶ 1, 8, 9. In response to these requests, on November 16, 2005, the Court ordered Plaintiff to provide an affidavit from his treating physician detailing why he could not proceed with his case. See Order dated November 16, 2005. Despite the fact that Plaintiff failed to submit a physician's affidavit or any other proof that he could not continue the action, the Court granted Plaintiff "one last extension of time" until December 23, 2005, to permit him to respond to Defendants' motions to dismiss. See Order dated December 6, 2005.


A. Defendants' motions to dismiss under Rules 16(f), 37(b)(2), and 37(d)

Under Rule 37(b)(2), the district court may impose sanctions on a party who fails "to obey an order to provide or permit discovery." Fed. R. Civ. P. 37(b)(2). Similarly, Rule 37(d) permits the court to sanction a party who fails to appear at a deposition; and Rule 16(f) permits the court to sanction a party for failure to attend a scheduling or pretrial conference. See Fed. R. Civ. P. 37(d); Fed. R. Civ. P. 16(f). These rules provide for a wide array of sanctions, including dismissal of the plaintiff's action. See Fed. R. Civ. P. 37(b)(2)(C). The standard for imposing the sanction of dismissal, which affords the district court broad discretion in making its determination, see Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976), is the same under Rules 16(f), 37(b)(2)(C), and 37(d). See Fed. R. Civ. P. 16(f) advisory committee notes; Debo v. Thompson, No. 9:05-CV-573, 2007 WL 2667982, *3 (N.D.N.Y. Sept. 6, 2007). In the present case, Rule 16(f) applies to Plaintiff's failure to appear at two pretrial telephone conferences; Rule 37(b)(2)(C) applies to Plaintiff's failure to attend the court-ordered deposition; and Rule 37(d) applies to Plaintiff's failure to attend the December 4, 2004 deposition at the Konstanty Law Office.

Since dismissal of a plaintiff's complaint is the most severe sanction available, the district court should impose this sanction only in extreme situations. See Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990) (citation omitted). Therefore, when considering dismissal - especially involving a pro se plaintiff - the court must ensure that (1) the plaintiff's non-compliance rose to the level of "'willfulness, bad faith, or [his own] fault,'" Nat'l Hockey League, 427 U.S. at 640 (quotation omitted); (2) less drastic alternatives to dismissal were not available or were ...

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