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Jackson v. Scotts Co.


February 10, 2009


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge


This employment discrimination case now is before the Court on (1) defendant's motion to dismiss the action, pursuant to Fed. R. Civ. P. 37, for non-compliance with a discovery order as well as (2) plaintiff's motions to stay proceedings on defendant's motion to dismiss pending the disposition of a complaint by plaintiff's counsel to another body under the judicial conduct rules. The basis of that complaint is the allegedly erroneous failure of the undersigned to recuse himself from this case. This memorandum and order disposes of these motions.


This case has a long history, but it suffices for the most part to outline the major details.

Attempts to Procure Remand Based on Supposed Workers' Compensation Claim

The action originally was brought in the New York Supreme Court, Bronx County, but was removed to this Court on the basis of diversity of citizenship. Plaintiff initially moved to remand, contending that the complaint asserted a claim under the New York Workers' Compensation Law.*fn1 That motion was denied on February 21, 2008 on the ground that the complaint did not even purport to assert a claim under the Workers' Compensation Law -- indeed, it did not even contain the word "worker."*fn2

Plaintiff subsequently has made repeated efforts to overcome that ruling. The details need not be recounted. The efforts all were unsuccessful, and plaintiff's counsel ultimately was sanctioned for this and other misbehavior.*fn3

Discovery Problems

As the case proceeded into discovery, problems continued.

On April 11, 2008, the Court approved a consent scheduling order entered into by the parties.*fn4 It required, among other things, completion of discovery by September 5, 2008. But that was not to be.

In July 2008, the Court granted defendant's motion to compel plaintiff to comply with her obligations under Rule 26(a)(1)(A)(iii) by July 29 on pain of possible preclusion of evidence of damages.*fn5 On August 18, the Court granted defendant's motion to compel production of documents and answers to interrogatories (the "August 18 Order").*fn6 In September, the Court granted defendant's motion to preclude plaintiff from offering, among other things, any evidence of economic damages in consequence of her failure to comply with discovery obligations.*fn7

By mid-September 2008, plaintiff still had not submitted to the completion of her deposition or complied fully with her discovery responsibilities. Defendant moved to dismiss the action pursuant to Rule 37.*fn8 In a December 24, 2008 order (the "December 24 Order"), the Court found that it was "abundantly clear" that plaintiff had not complied with her discovery obligations. It nevertheless granted the defendant's motion only to the extent of ordering plaintiff to appear for and submit to the completion of her deposition by the end of January and to produce certain other discovery as required by the August 18 Order.*fn9 The order, however, expressly warned that any failure to comply could result in sanctions, including dismissal of the action. It is plaintiff's failure to comply with the December 24 Order that underlies defendant's present motion to dismiss.

The Recusal Efforts

Plaintiff's counsel, evidently dissatisfied with the Court's prior rulings in this case, wrote to the Chief Judge on September 29, 2008, albeit without sending copies to her adversary or the undersigned. Her letter contended that she had:

"learned that there may possibly be a connection between [the undersigned] and the Defendant The Scotts Company ('Scotts') that occurred while he was a partner at Paul, Weiss, Rifkind, Wharton & Garrison ('Paul Weiss'). It appears that Paul Weiss represented Scotts on a matter called the Millennium Growth Plan."

A footnote indicated that counsel had "enclosed and highlighted the AOL search document [and other materials] that leads me to believe that there may be a connection."

As will appear below, the materials in question on their face did not support counsel's belief which, in any event, was wrong. For the moment, however, it need be noted only that plaintiff's counsel requested that the Chief Judge stay the case "until information regarding [the undersigned's] status, during the relevant time with Paul Weiss, is learned."*fn10

On the following day, plaintiff's counsel wrote to the undersigned and asked whether Paul Weiss had represented Scotts while the undersigned was with the firm. Unlike her letter to the Chief Judge, this letter did not reveal her professed belief that Paul Weiss had done so or, more importantly, disclose the basis for that professed belief. A few days later, my assistant responded, "as a matter of courtesy rather than of obligation, that [the undersigned did] not recall the defendant in this case having been a client of Paul Weiss... during his tenure at the firm."

More than two months went by without any apparent action by plaintiff. Then, on December 15, 2008, plaintiff's counsel moved to disqualify the undersigned on the ground that the failure to recall the defendant having been a client of Paul Weiss during his tenure with the firm gave reasonable grounds to question his impartiality.*fn11 The motion -- like the September 29 letter to the Court -- did not disclose plaintiff's counsel's professed belief that Paul Weiss had represented the defendant or the basis for that point of view. Thus, plaintiff's point was that recusal was required by the stated lack of recollection as distinguished from the actual existence of an attorney-client relationship between Paul Weiss and the defendant while the undersigned was at the firm. This of course she had known since October 3, 2008, the date upon which the Court responded to her inquiry.

The Court promptly denied the motion, noting, among other things, that: "The fact that the undersigned so responded to the inquiry by plaintiff's counsel would not in any case constitute a basis for disqualification. It certainly does not evidence the personal bias or prejudiced required for disqualification under Section 144. It does not reflect the 'personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding' that is required for disqualification under Section 455(b)(1). And, although plaintiff's notice of motion does not refer to Section 455(a), there is nothing about the Court's response that suggests that any reasonable person, aware of all of the facts, would entertain the slightest suspicion that the undersigned's 'impartiality might reasonably be questioned,' the standard applicable under that statute. See, e.g., In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1309 (2d Cir.1988) ('[T]he test of impartiality is what a reasonable person, knowing and understanding all the facts and circumstances, would believe.'), reh'g denied, 869 F.2d 116 (2d Cir.), cert. denied, 490 U.S. 1102 (1989)."*fn12

On December 16, 2008, the day following the denial of the motion, the undersigned received from Judge Wood the September 29 letter from plaintiff's counsel with the enclosed Internet materials. This brought to my attention for the first time plaintiff's counsel's belief that Paul Weiss had represented defendant in 1999 in connection with its Millennium Growth Plan as well as the Internet materials she had sent to the Chief Judge.

The Court promptly reconsidered its ruling in light of this additional material, but again denied the motion to recuse. The order stated in part:

"First, there is nothing in the materials that plaintiff sent to the Chief Judge that in fact supports her speculation that my former firm represented defendant in connection with the Millennium Growth Plan or anything else, whether in 1999 or at any other time.

"Second, I left Paul Weiss in 1994, more than five years before the effective date of the Millennium Growth Plan.

"Third, 28 U.S.C. § 455(b)(2) in pertinent part requires disqualification only '[w]here in private practice [the judge] served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter.' See generally Faulkner v. Nat'l Geographic Soc'y, 296 F. Supp. 2d 490-91 (S.D.N.Y. 2003), aff'd, 409 F.3d 26, 41-43 (2d Cir. 2005). These criteria manifestly are not met here."*fn13

Plaintiff's counsel did not cease. On December 17, 2008, she attempted to file a so-called First Motion to Amend/Correct Motion and Notice of Motion for the Disqualification/Recusal of the Honorable Lewis A. Kaplan.*fn14 Although it was rejected by the Clerk's Office for failure to comply with electronic filing requirements, the Court considered it.

The new motion contended that the Court was obliged to recuse on the theory that its failure recall any representation of the defendant by Paul Weiss violated the Second Circuit's Mandatory Conflicts Screening Plan (the "Plan").*fn15 That motion too was denied.*fn16 After pointing out that the Plan is directed principally at financial interests, a term of art defined as "ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party..," the Court added in relevant part:

"This is not to say that a judge's previous professional representation of a party, or a previous or even present representation of a party by someone with whom the judge once practiced law, invariably is irrelevant. As the Court previously has pointed out, Section 455(b)(2) and Canon 3C(1)(b) require disqualification '[w]here in private practice [the judge] served as lawyer in the matter in controversy, or a lawyer with whom [the judge] previously practiced law served during such association as a lawyer concerning the matter.' (Emphasis added) But the Second Circuit Plan does not purport to require judges to remember the entire client lists of large law firms of which they were members more than a decade before, much less to keep abreast of the current client lists of such firms -- a requirement that often could not be reconciled with the right of clients to ensure the confidentiality of their attorney-client relationships. Nor would any such requirement make sense in light of the fact that it is only representations of a party 'in the matter in controversy' that even potentially might be disqualifying.

"In this case, plaintiff has not come remotely close to anything disqualifying. There is no reason to suppose that the firm in which the undersigned practiced until his appointment more than 14 years ago ever represented the defendant. Even if it did, that would not be disqualifying. The amended complaint here alleges that the plaintiff was hired by the defendant in 2001, Am Cpt ¶ 10, which was about seven years after the undersigned left the practice of law. The circumstances of plaintiff's employment, which is the subject matter of this case, therefore necessarily post-date by years the departure of the undersigned from the private practice of law. Accordingly, the undersigned could not possibly have represented the defendant 'in the matter in controversy,' and no 'lawyer with whom he previously practiced law' could have done so 'during such association.'"*fn17

But this did not end the matter either. Plaintiff's counsel filed another motion to recuse the undersigned on December 31, 2008, essentially rehashing arguments previously rejected and attempting to justify her delay in filing an earlier motion.*fn18 That motion was denied in early January 2009.*fn19

The Present Motions and Their Relationship to the Judicial Misconduct Complaint

The December 24 Order and the denials of the repeated recusal motions set the stage for the matters now before the Court.

The December 24 Order, which had denied dismissal for prior discovery failures in order to give plaintiff one more chance to discharge her obligations, warned that non-compliance could result in dismissal of the action. As is demonstrated below, plaintiff did not comply with the December 24 Order -- indeed, she does not claim otherwise. So the likelihood of a successful motion to dismiss was obvious to plaintiff's counsel. It therefore perhaps is not surprising that counsel on January 16, 2009 filed her judicial conduct complaint against the undersigned.*fn20

Defendant filed the anticipated motion to dismiss for failure to comply with the December 24 Order on January 20, 2009.*fn21 Plaintiff's answering papers did not claim that she had complied with the order.*fn22 Rather, they renewed her contention that the undersigned should have recused himself.*fn23 Defendant pointed this out in its February 2, 2009 reply and pressed its request for dismissal.*fn24 Plaintiff thereupon moved to stay proceedings in this case pending disposition of her judicial conduct complaint.*fn25


I. The Motions to Stay Proceedings

The first question is whether there is any reason to stay proceedings on defendant's motion to dismiss pending the outcome of the plaintiff's judicial conduct complaint. Plaintiffs' argument is simple enough -- she contends simply that the Second Circuit ought to be permitted to decide the judicial conduct complaint before anything further occurs in the district court. But that argument is not persuasive.

As an initial matter, judicial conduct complaints are governed by the Rules for Judicial-Conduct and Judicial-Disability Proceedings promulgated by the Judicial Conference of the United States (the "Judicial Conduct Rules"). Those rules do not require that proceedings in an ongoing case be stayed pending the outcome of a complaint against the presiding judge. Nor would such a requirement be sensible, as it readily could be used by the unscrupulous for delay and other improper purposes.

This of course is not to say that a court lacks authority to stay proceedings in such circumstances. Courts have inherent power over their dockets and thus have discretion to stay proceedings when they consider it appropriate.*fn26 Considerations pertinent to the exercise of that discretion include "economy of time and effort for [the court], for counsel, and for litigants" and whether the applicant has made "out a clear case of hardship or inequity in being required to go forward."*fn27 Moreover, assessment of whether an applicant would suffer hardship in being required to go forward necessarily involves consideration of the likelihood that some useful purpose would be served by delay -- in this case, the likelihood that plaintiff's complaint will succeed and, if it does, have some effect on the proceedings in this case.

A. Likelihood of Success

1. The Judicial Conduct Rules

The premise of plaintiff's stay motions is that her complaint under the Judicial Conduct Rules could lead to a determination that the undersigned should have recused himself in this action and affect the course of proceedings in this action. That premise is incorrect.

Rule 1 of the Judicial Conduct Rules provides in relevant part that the rules "govern proceedings... to determine whether a covered judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts." Rule 11(c)(1)(B) requires that any complaint under the Rules be dismissed if it "is directly related to the merits of a decision or procedural ruling." Rule 3(h)(3)(A) provides in relevant part that "[a]n allegation that calls into question the correctness of a judge's ruling, including a failure to recuse, without more, is merits-related" and therefore not cognizable misconduct.*fn28 In consequence, the claim that the undersigned should have recused himself, even if otherwise meritorious, is unlikely to prevail as a claim of judicial conduct because the claim is merits-related and therefore not cognizable under the Judicial Conduct Rules. Plaintiff's remedy, if any were appropriate, would be under the usual appellate processes. But plaintiff's claim would have little likelihood of success even if this fundamental deficiency were put aside.

2. The Merits of the Recusal Application

The complaint asserts that the undersigned should have recused because either (1) the judge's former firm, as plaintiff's counsel suggests, previously represented the defendant, a representation that, if it occurred, plaintiff's own submission shows to have been an entirely unrelated corporate matter, or (2) the Court responded to her counsel's inquiry as to whether the firm had represented the defendant during its time there by stating that he did "not recall the defendant in this case having been a client of Paul Weiss... during his tenure at the firm." Neither hypothesis is defensible. She appears to claim also, although not in her stay motions,*fn29 that the Court's continued presiding over the case after the filing of her affidavit to disqualify under 28 U.S.C. § 144 independently constituted inappropriate behavior.

(a) Paul Weiss Never Represented the Defendant

The first of her claims is readily dispatched.

The Court has filed a letter from Paul Weiss from the partner in charge of oversight of the firm's database on its current and former representations, a database that includes, among other things, the names of the clients the firm has represented since at least January 1970, the year in which the undersigned joined the firm as an associate. He confirms "that [Paul Weiss] has never had an attorney-client relationship with The Scotts Company" and that a word search of the firm's Records Department reveals that The Scotts Company does not appear in the firm's records.*fn30 There accordingly is no merit at all to plaintiff's complaint. But it is appropriate in all the circumstances to demonstrate that there never was, even before Paul Weiss's letter was obtained.

(b) There Was No Evidence of Any Such Representation

In asserting that Paul Weiss represented the defendant, plaintiff's counsel relied entirely on the result of a search conducted on AOL. The materials she submitted, however, did not support her assertion. And it is worth discussing why that is so because it demonstrates ways in which the Internet is capable of misuse or misunderstanding.

Her search request was "The Scotts Company and Paul Weiss Rifkind." The first ten of the 8,410 results included this entry:*fn31

Scotts Company - Scotts Millennium Growth Plan... Patton Boggs; Paul, Hastings, Janofsky & Walker, Paul, Weiss, Rifkind... The Scotts Company adopts the Scotts Millennium Growth Plan to enhance... -45k - Similar pages

Given the manner in which search engines work, this apparently would have been evidence, at most, that the phrases "Scotts Company" and "Paul, Weiss, Rifkind" both appeared on the web site.*fn32 Resort to the web site seems to confirm this.*fn33

But the key point is not a deduction as to how the web site or the search engine works. The Court lacks sufficient information to determine that definitively. Rather, it is that plaintiff never offered any basis for supposing that the appearance of Paul Weiss and the other law firms names in response to plaintiff's search request indicated any attorney-client relationship between Paul Weiss and defendant as opposed, for example, to its having been a consequence of the manner in which the web site, which mentions both in unrelated contexts, interacted with the search engine used by plaintiff's counsel.

This lack of evidence alone was sufficient reason for denial of plaintiff's recusal motion without getting to the question whether the existence of an attorney-client relationship between Paul Weiss and the defendant would have warranted recusal. Even if one were to get to that question, however, plaintiff would have stood in no better stead.

(c) Recusal Have Been Unwarranted Even If Plaintiff Had Been Correct on the Facts

The standards for recusal are set out in two statutes -- Sections 144 and 455 of the Judicial Code.*fn34 It is well to consider them separately.

(1) Section 144

Section 144 provides in relevant part that: "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding."

Plaintiff's judicial conduct complaint briefly suggests that the fact that the undersigned proceeded with the case after she sought recusal under Section 144 was improper. She refers to the statute's command that the assigned judge proceed no further and that another judge be assigned when a party "files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adversary party." But this contention, as demonstrated above, is not cognizable under the Judicial Conduct Rules. Moreover, it would be unlikely to prevail even if it were.

Section 144 has both procedural and substantive requirements.

From a procedural point of view, the affidavit must be timely -- it must be filed as soon as practical after learning of the facts.*fn35 It must be made by the party. And it must be accompanied by a certificate of counsel stating that the affidavit is filed in good faith. The procedural requirements of the statute are enforced strictly.*fn36

From a substantive perspective, the affidavit must allege sufficiently that the judge has a personal bias or prejudice against the party filing the affidavit or in favor of an adverse party. To this must be added the further gloss, viz. that the determination of whether such an affidavit is timely and legally sufficient is made by the judge whose recusal is sought.*fn37 In doing so, however, the judge is obliged to assume the truth of the factual allegations of the affidavit, although the judge may disregard speculative and conclusory assertions.*fn38

In this case, plaintiff's affidavit was untimely. Although she knew enough to write the Chief Judge on September 29, 2008 to ask that proceedings be stayed and received the Court's response to her inquiry on or about October 3, 2008, she did file the Section 144 affidavit until December 31, 2008.*fn39 Her protestation that she could not have filed earlier is unpersuasive because she had no more information when she did file on December 31 than she had on October 3, when the Court responded to her letter. So the application was untimely. But it would have been insufficient in any case.

Section 144 requires an affidavit "that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party," and usually a bias or prejudice stemming from an extrajudicial source.*fn40 Plaintiff's affidavit alleges only that she believed that the Court was biased against her because she had been advised by counsel that the undersigned had been obliged to respond to counsel's inquiry about prior representation by Paul Weiss of the defendant with an unequivocal "yes" or "no."*fn41 With all due respect, the Court was not obliged to respond to counsel's inquiry at all. That it honestly (and, as events have shown, correctly) did so by stating that it did not recall any representation of Scotts by Paul Weiss while he was with the firm affords no basis for a conclusion that the Court held a personal bias in favor of or against either plaintiff or her adversary, let alone any bias or prejudice stemming from an extrajudicial source. In other words, the affidavit was legally insufficient because its factual allegations, assuming their truth, did not allege the personal bias or prejudice that is essential to a Section 144 recusal motion.

In view of the fact that the determination of the timeliness and sufficiency of an affidavit under Section 144 is committed in the first instance to the judge in question, there is no basis for plaintiff's contention that the failure to step aside in the face of these papers was improper, let alone a basis for recusal independent of the merits of the plaintiff's contention that the undersigned was disqualified by virtue of the imagined prior representation of the defendant by Paul Weiss.

(2) Section 455

Section 455, which is the real focus of plaintiff's attention, provides in relevant part as follows:

"(a) Any... judge... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

"(b) He shall also disqualify himself in the following circumstances:

* * * "(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter."

The undersigned left Paul Weiss for the bench in 1994. Plaintiff first was employed by defendant in 2001, and all of the alleged discrimination is said to have occurred thereafter. Hence, (1) the undersigned could not possibly have served as a lawyer in the matter in controversy, and (2) no lawyer with whom the undersigned previously practiced law could have served "during such association as a lawyer concerning the matter." Section 455(b)(2) therefore would not have been satisfied here, irrespective of whether Paul Weiss ever had represented the defendant, as the "matter in controversy" -- plaintiff's employment by defendant -- post-dated my departure from the firm.

Plaintiff nevertheless claimed that disqualification was mandatory under Section 455(a) because there was an appearance of impropriety, either because Paul Weiss represented defendant in 1999 in connection with the Millennium Growth Plan or because of the undersigned's response to her counsel's inquiry. Neither contention ever had any merit.

In Liteky v. United States,*fn42 the Supreme Court said that: "§ 455(a) expands the protection of § 455(b), but duplicates some of its protection as well -- not only with regard to bias and prejudice but also with regard to interest and relationship. Within the area of overlap, it is unreasonable to interpret § 455(a) (unless the language requires it) as implicitly eliminating a limitation explicitly set forth in § 455(b)."*fn43

Thus, a judge is required to recuse -- in consequence of a previous attorney-client relationship between the judge and a party -- or even a current attorney-client relationship between a lawyer with whom the judge formerly practiced and a party -- only when the criteria of Section 455(b)(2) are satisfied. Any other construction of Section 455(a) would render Section 455(a) inconsistent with Section 455(b)(2).

To be sure, the relationship between Sections 455(a) and (b) perhaps is not entirely clear.*fn44 And the Court assumes for purposes of discussion that there may be circumstances in which recusal might be appropriate under Section 455(a) on grounds that are broader than, but overlap with, circumstances addressed by Section 455(b). For example, if recusal were sought on the grounds that

(1) a former law partner of the judge represented the defendant in the matter pending before the judge, and (2) the judge had a close personal relationship with the lawyer, Section 455(b)(2) would not necessarily be satisfied -- the lawyer-client relationship between the party and the judge's former client might not have existed while the judge and the former partner practiced together. But Section 455(a) might warrant recusal, without creating any inconsistency with Section 455(b)(2), in consequence of the close personal relationship between the judge and the former partner coupled with the former partner's representation of a party. But that is neither here nor there in this case.

Even assuming that plaintiff had been right in supposing that Paul Weiss represented defendant in 1999 in connection with the Millennium Growth Plan, apparently an incentive compensation arrangement, there would have been no appearance of impropriety. The undersigned, as noted, left the firm in 1994. There was no evidence that the defendant was a client when he was there, even assuming it had become a client later. There is no connection between the subject matter of this case and the incentive compensation scheme. There would be no reason to suppose even that anyone who worked on the incentive compensation scheme, assuming that the firm actually worked on that matter, was with the firm when the undersigned was there -- a fact of no mean significance given Paul Weiss's size, which long has numbered in the hundreds of lawyers.

(c) Recusal Would Not Have Been Warranted By the Response to Plaintiff's Inquiry

Nor is there anything to plaintiff's contention that the Court was obliged to recuse because it responded to her inquiry by stating that it had no recollection of Paul Weiss representing the defendant while the undersigned was at the firm. The point of the statement was that the defendant, to the best of the Court's recollection, was not a client during the Court's tenure with the firm. A judge is not obliged to have encyclopedic and definitive knowledge of what individuals and entities were and were not clients of a law firm of hundreds of lawyers over a period of more than 24 years. No reasonable person, aware of all the facts, would regard the failure to claim such definitive knowledge as creating an appearance of partiality.

B. The Equities

Nor do the equities favor a stay pending the outcome of plaintiff's complaint. Defendant's motion to dismiss for discovery misconduct is fully briefed and ready for decision. If it were granted, plaintiff would be in a position to raise her recusal argument on appeal from the final judgment. Even if it were not granted, it would be difficult to see how she would be materially harmed by proceeding to a determination of the action on the merits, whether by summary judgment or trial. The point would be moot if she prevailed and available to her on appeal if she lost.

II. The Motion to Dismiss

Rule 37(b)(2)(A) provides in relevant part: "If a party or a party's officer, director, or managing agent... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:

* * * "(v) dismissing the action or proceeding in whole or in part." "[T]he sanction of '[d]ismissal under Fed.R.Civ.P. 37 is a drastic remedy that should be imposed only in extreme circumstances,' usually after consideration of alternative, less drastic sanctions. Dismissal under Rule 37 is warranted, however, where a party fails to comply with the court's discovery orders willfully, in bad faith, or through fault."*fn45 Accordingly, the Court proceeds to consider the pivotal questions: (1) whether the plaintiff failed to comply with a discovery order, (2) whether the failure was wilful, in bad faith, or otherwise culpable, (3) whether less drastic sanctions would be preferable, and (4) whether any other considerations weigh against dismissal.

A. Noncompliance With the December 24, 2008 Order

On August 18, 2008, the Court granted defendant's motion to compel discovery -- specifically, complete responses to certain documents requests and interrogatories -- and directed plaintiff to comply no later than August 28, 2008.*fn46

On September 19, 2008, defendant moved to dismiss for failure to comply with the August 18 Order,*fn47 arguing that plaintiff had not complied.*fn48 Plaintiff responded in October by attaching copies of (a) incomplete discovery responses that had antedated the August 18 Order and supplemental responses evidently served hours before her response, and (b) seeking to excuse the delay with a claim of illness.*fn49 As defendant's reply papers pointed out, however, even the belated supplemental responses failed to comply with the August 18 Order. Plaintiff persisted in her failure to produce, among other things, (a) records of various treating physicians and medical authorizations that would have permitted defendant to obtain them, and (b) information pertinent to her claims of disparate treatment -- materials critical to the defense of this action.*fn50

Rather than dismissing the action, the Court issued the December 24 Order. It stated in relevant part:

"Plaintiff, on or before January 12, 2009, shall comply in all respects with the August 18, 2008 order.

"Any failure to comply in all respects with this order may result in the imposition of sanctions, which may include dismissal of the action."*fn51

On January 20, 2009, defendant renewed its motion to dismiss, asserting that plaintiff had not complied with the December 24 Order.*fn52 She had not "provide[d] a single document, medical record, medical records authorization, or supplemental interrogatory response."*fn53 Plaintiff's response to the motion does not contend otherwise or seek to excuse this failure. Accordingly, plaintiff's non-compliance with the December 24 Order is undisputed.

B. Wilfulness, Bad Faith or Fault

The December 24 Order was crystal clear -- plaintiff was to produce the additional material required by the August 18 Order on or before January 12, 2009. She failed to comply. She has offered no excuse or explanation for the failure. The Court therefore finds that plaintiff's failure to comply with the December 24 Order was wilful and in bad faith.

C. Alternative Sanctions

This is but the latest in a long series of irresponsible actions and failures to act, some of which have resulted in the imposition of lesser sanctions. Indeed, the December 24 Order itself was an attempt to secure compliance with the August 18 Order by means short of dismissal or other sanctions. It failed.

The Court finds in all of the circumstances that plaintiff will not comply with her discovery obligations in response to any sanction or other means. It therefore finds also that any lesser sanction would be ineffective.

D. Other Considerations

Several other factors are pertinent to the determination of the sanction appropriate in view of plaintiff's disobedience of the December 24 Order.

First, the order warned plaintiff that failure to comply could result in sanctions, which might include dismissal of the action. She cannot claim surprise.

Second, plaintiff herself -- as distinct from her counsel -- long has been well aware of problems with her attorney. In July 2008, when the Court sanctioned plaintiff's counsel for repetitious and baseless contentions that discrimination violated the Workers' Compensation Law, it directed plaintiff's counsel to provide plaintiff herself with copies of the pertinent court orders and to file proof that she had done so.*fn54 It did so out of concern that plaintiff should be aware of the fact that her attorney was behaving in an inappropriate manner and a manner, moreover, that plaintiff well might have concluded was not in plaintiff's interest. Plaintiff, however, has not discharged counsel and, in fact, has abetted counsel's efforts.*fn55

Third, the Court notes that plaintiff and her counsel on at least one or two occasions have sought to excuse failures to comply with various obligations by claims of illness. On this occasion, however, no such claim has been made. Moreover, the Court has more than accommodated these claims in the past. Indeed, it did not dismiss the action in response to defendant's September 2008 motion to do so for failure to comply with the August 18 Order in light of such a claim, instead giving plaintiff a final chance to comply with her obligations. She did not avail herself of that opportunity or claim inability to do so.


There is no basis for staying further proceedings in this action pending the outcome of plaintiff's judicial conduct complaint concerning the Court's failure to recuse itself. That complaint lacks merit, and plaintiff in any case will have ample opportunity to raise the point on direct appeal from a final judgment. Dismissal of the action is appropriate in light of plaintiff's wilful, bad faith failure to comply with the December 24 Order and the patent inadequacy of means of coercing compliance.

Accordingly, plaintiff's motions for a stay*fn56 are denied in all respects. Defendant's motion to dismiss the action pursuant to Rule 37(b)(2)*fn57 is granted and the action is dismissed with prejudice. The Clerk shall enter final judgment accordingly and terminate any pending motions as moot.


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