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Perez v. Siragusa

February 19, 2008

ARLENE PEREZ AND CELESTE WILLIAMS, PLAINTIFFS,
v.
JASON SIRAGUSA, A POLICE OFFICER EMPLOYED BY THE NEW YORK CITY POLICE DEPARTMENT, MICHELLE ANTONIATO, A POLICE OFFICER EMPLOYED BY THE NEW YORK CITY POLICE DEPARTMENT, EMILY BIONDO, AND FRANK BIONDO DEFENDANTS.



The opinion of the court was delivered by: Azrack, United States Magistrate Judge

REPORT AND RECOMMENDATION AND ORDER

By order of August 16, 2007, the Honorable Charles P. Sifton, United States District Judge, while denying the motion of the above-named defendants for dismissal of this case pursuant to Fed. R. Civ. P. 37 ("Rule 37") and Fed. R. Civ. P. 41 ("Rule 41"), referred this case to me for a report and recommendation on whether to grant fees and costs to the defendants pursuant to Rule 37(b)(2). For reasons set forth more fully below, I recommend that plaintiffs be ordered to pay the defendants' reasonable costs incurred in obtaining compliance with my discovery orders, in an amount to be determined upon submissions by the defendants.

In addition, I order plaintiffs to produce adequate responses to certain interrogatories of the Biondo defendants, as specified more fully below, before February 28, 2008. Plaintiffs are also ordered to ensure that they have provided adequate responses to the City defendants' interrogatories by that date. If plaintiffs fail to provide complete and adequate interrogatory responses to the City and Biondo defendants before February 28, 2008, I grant the defendants leave to file a motion before me for further sanctions under Rule 37(b).

I. BACKGROUND AND FACTS

Plaintiffs filed their complaint on October 18, 2005, alleging, inter alia, violations of their civil rights under 42 U.S.C. §§ 1981, 1982, 1983, and 3617. Plaintiffs filed an amended complaint on February 3, 2006. In the summer and fall of 2006, several conferences were held and a discovery schedule was set.

On November 14, 2006, Emily Biondo and Frank Biondo ("the Biondo defendants") served their first set of interrogatories on plaintiffs. Jason Siragusa and Michelle Antoniato ("the City defendants") served their interrogatories on the plaintiffs on November 22, 2006.

Plaintiffs' original attorney, Mark Goidell, requested to withdraw in a letter to the Court dated September 14, 2006, but continued representing plaintiffs until their current attorney, Elliott Liebowitz, first appeared on their behalf at a settlement conference on March 5, 2007. Between then and early April 2007, discovery disputes that had festered while plaintiffs obtained new counsel finally erupted. An exchange of letters between the parties resulted in plaintiffs producing some, but by no means all, of the discovery defendants had requested. The City and Biondo defendants filed motions on April 30, 2007 and May 1, 2007, respectively, requesting that I compel plaintiffs to respond to their interrogatories and produce other outstanding discovery materials. I granted the defendants' applications on May 1, 2007 and, I hoped, highlighted to plaintiffs the importance of promptly completing discovery by ordering that all outstanding materials be produced within one week, by May 7, 2007.

Plaintiffs did not comply with this order, and on May 23, 2007, the Biondo defendants filed another motion for production of still-undisclosed materials. I held a discovery hearing on May 30, 2007, and again ordered plaintiffs to provide outstanding written discovery within one week, by June 6, 2007, and indicated that I would grant no further continuances. I gave defendants leave to move for dismissal of the case if plaintiffs failed to comply.

Plaintiffs failed to comply with the May 30, 2007 order, and on June 11, 2007, the Biondo defendants moved for dismissal of the case and an award of attorneys fees and costs pursuant to Rule 37(d). The City defendants also moved for dismissal of the case on June 11, 2007, citing Rule 37(b)(2) and Rule 41(b).

Plaintiffs' counsel responded by letter dated June 19, 2007. He stated that, after his entry into the case on March 5, 2007, the defendants did not make him aware of any outstanding discovery issues until he received a letter from the City defendants dated April 18, 2007, to which he responded with all releases and authorizations in his possession and a request for a list of any other outstanding materials. Regarding the motion of the Biondo defendants, plaintiffs' counsel stated that, "Once I was advised of the various items requested by [counsel for the Biondo defendants], I promptly forwarded her all releases and authorizations characterized as important, and advised that I would supply additional discovery items as soon as possible." Plaintiffs' counsel, regarding plaintiffs' failure to comply with my May 30, 2007 order, indicated that he suffered from medical and unspecified time restrictions that had prevented compliance. Plaintiffs' counsel claimed that all required disclosures were made to the City defendants on June 12, 2007 and to the Biondo defendants on June 14, 2007. The Biondo defendants, by letter dated June 19, 2007, and the City defendants, by letter dated June 22, 2007, both claimed that plaintiffs' interrogatory responses, now provided, were deficient, and indicated that some authorizations requested from plaintiffs were still outstanding.*fn1

Judge Sifton heard, and denied, the City and Biondo defendants' motions to dismiss on August 16, 2007, and then referred the case back to me for a report and recommendation on whether plaintiffs should be required under Rule 37(b)(2) to pay the reasonable expenses, including attorneys' fees and costs, caused by plaintiffs' failure to comply with discovery requirements.

II. DISCUSSION

A. Recommendation that Rule 37 Sanctions be Imposed on Plaintiffs

I twice issued an order requiring plaintiffs to answer defendants' interrogatories by a specific date, and plaintiffs failed to comply each time. Rule 37 permits parties to file a motion for a court order to resolve discovery disputes, permits various sanctions up to dismissal of the case for noncompliance with the court's discovery orders, and mandates an award of the successful movant's fees and costs against the disobedient party unless the nondisclosure was substantially justified or other circumstances make the award of expenses unjust. See Rule 37(b)(2)(C) (stating that "the ...


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