The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
For more than six months, the Defendant has been seeking from Plaintiff responses to its Demands for Interrogatories and Production of Documents. On October 5, 2007, this Court, inter alia, directed the Plaintiff to respond to Defendant's Demands by October 31, 2007. Dkt. No. 12, Text Order. We further ruled that "[i]f Plaintiff fail[ed] to respond timely, Defendant may file a Motion to Compel without further consultation with Plaintiff or the Court." Id. Apparently Plaintiff failed to abide by this Text Order because Defendant filed a Motion to Compel on November 13, 2007. Dkt. No. 13. The Return Date for this Motion is December 20, 2007.*fn2
Pursuant to this District's Local Rules, Plaintiff's opposition to this Motion was due on December 3, 2007. N.D.N.Y.L.R. 7.2. No opposition was received.
The pretrial litigation history is as follows: Defendant's First Demands for Interrogatories and Production of Documents was served on July 17, 2007. Dkt. No. 13-3, Virginia T. Shea, Esq. Decl., dated Nov. 13, 2007, at ¶ 3. On August 22, 2007, Defendant spoke with Plaintiff who represented that responses would be provided shortly. Said representations were confirmed by a follow-up letter. Id. at ¶ 4. More than a month later, on October 5, 2007, this Court convened a telephone conference and thereat ordered Plaintiff to respond to Defendant's Request no later than October 31, 2007; in the event Plaintiff failed to comply with this directive, Defendant could file a motion to compel without further consultation with Plaintiff or the Court. Id. at ¶ 7.
Based upon the above-mentioned events, this Court contemplated issuing a Report and Recommendation to the District Judge recommending that Plaintiff's claim be dismissed because it appeared that the action has not been diligently prosecuted, and also considering Plaintiff's failure to follow court orders. Realizing that there may not have been previous notice to Plaintiff that sanctions may possibly ensue, which could include dismissal, this Court issued an Order to Show
Cause, dated December 26, 2007, directing Plaintiff to show good cause why this case should not be dismissed. Dkt. No. 14. The Order to Show Cause also stated that Plaintiff shall file a written response on or before January 11, 2008, and "no explanations communicated in person, over the telephone, or by letter shall be acceptable," and failure to respond "will result in this Court recommending dismissal of this action." Id. at pp. 2-3 (emphasis in original).
On January 11, 2008, the very last day for filing its written response, G.R.J.H. Inc.'s Response was received. Dkt. No. 15, Pl.'s Response to OSC. This Response comprised a litany of excuses and importunes. The excuses include, inter alia: comprehensive Responses were delivered via Federal Express (¶¶ 1 & 2); the delay was due to Plaintiff's attempts to be thorough, unavailability of a witness, who took a new position, and the difficulties in obtaining documents from a non-party (¶¶ 3-6, 8, & 11); and Plaintiff's counselor suffered a serious illness (¶ 12). Id.*fn3
When demands for interrogatory and production have been served, the responding party must respond to the demands within thirty (30) days after being served. FED. R. CIV. P. 26(3)(B), 33(b)(2) & 34(b)(2)(A). Not only has Plaintiff defaulted on responding to discovery demands after repeated requests by Defendant and a Court Order, but it has compounded its difficulties by blatantly ignoring that Court Order. FED. R. CIV. P. 37(b); see also Dkt. No. 12, Text Order, dated Oct. 5, 2007. We reiterate that Plaintiff has not served nor filed any opposition to the Motion to Compel, and it was not until recently when Plaintiff responded to the Court's Order to Show Cause that we have any response by Plaintiff on the record. Until January 11, 2008, it appeared that Plaintiff had failed to diligently prosecute its case and comply with a Court Order.
In accordance with Federal Rule of Civil Procedure 37, a court has broad discretion in fashioning appropriate sanctions for discovery misconduct. Metro. Opera Ass'n., Inc. v. Local 100, Hotel Employees and Restaurant Employees Int'l Union, 212 F.R.D. 178, 219 (S.D.N.Y. 2003) (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)); see also Minotti v. Lensink, 895 F.2d 100, 102-03 (2d. Cir. 1990) (stating a reviewing court will overturn a district court's application of such sanctions only where there has been an abuse of discretion).
As the Second Circuit noted in Update Art, Inc. v. Modiin Publ'g, Ltd., disciplinary sanctions under Rule 37 ensure that a party will not benefit from his or her failure to comply. 843 F.2d 67, 71 (2d Cir. 1988). Sanctions are specific deterrents and are imposed for the purpose of obtaining compliance with the particular order issued, and intended as a general deterrent effect on the case at hand and the future, provided the party against whom sanctions are imposed was in some sense at fault. Id. (citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976) (per curiam) & Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir. 1979)); see also Metro. Opera Assoc., 212 F.R.D. at 219 (citing Nat'l Hockey League, 427 U.S. at 643 & Penthouse Int'l, Ltd. v. Playboy Enters., 663 F.2d 371, 386 (2d Cir. 1981) for the proposition that Rule 37 sanctions may be applied both to penalize conduct that warrants sanctions and to deter those who might be tempted to use such conduct in the absence of such a deterrent).
Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a court may dismiss an action, on motion or its own initiative, for the failure of the plaintiff "to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order[.]" FED. R. CIV. P. 41(b) (emphasis added). Rule 37 of the Federal Rules of Civil Procedure also authorizes dismissal of an action due to a party's failure to comply with discovery and/or court orders. See also N.D.N.Y.L.R. 1.1(d) & 7.1(d). Rule 37(d) states in part that "the court . . . may . . . order sanctions if . . . a party, after being properly served with interrogatories under Rule 33 or request for inspection under Rule 34, fails to serve its answers, objections, or written response." FED. R. CIV. P. 37(d)(1(ii). Sanctions may include those listed in Rule 37(b)(2)(A)(i)-(v). FED. R. CIV. P. 37(d). Included as a sanction in Rule 37(b) is the remedy of dismissal against the disobedient party. FED. R. CIV. P. 37(b)(2)(A)(v).
We note that, given the harsh nature of Rule 41(b) dismissals, such dismissals are "appropriate only in extreme situations." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (quoted in Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998)). Dismissals pursuant to Rules 37 and 41 are within the discretion of the court pursuant to their authoritative and discretionary control over case management and calendar congestion. See Dodson v. Runyon, 957 F. Supp. 465, 469 (S.D.N.Y.), aff'd , 152 F.3d 917 (2d Cir. 1998) (citing Nita v. Conn. Dep't of Envtl. ...