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Branford v. Research Foundation of Suny

June 26, 2009

FELIPE BRANFORD, PLAINTIFF,
v.
THE RESEARCH FOUNDATION OF SUNY, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

In this employment discrimination action, Plaintiff alleges that Defendant Research Foundation of SUNY discriminated against him in violation of the Americans with Disabilities Act. 42 U.S.C. §§ 12101 et seq ("ADA"). Presently before the Court is Defendant's Motion to Dismiss pursuant to Rule 37(d) of the Federal Rules of Civil Procedure.*fn1 Plaintiff opposes Defendant's Motion.*fn2 For the reasons stated below, Defendant's motion is granted.

II. BACKGROUND

A. Facts

Plaintiff Felipe Branford commenced this action pro se by filing a Complaint in this Court against Defendant on May 16, 2005. (Docket No. 1.) Thereafter, this Court referred the case to the Honorable Hugh B. Scott, United States Magistrate Judge, for all pretrial matters.

i. Plaintiff's Appointed Counsel

On September 27, 2005, Plaintiff moved for the appointment of counsel. (Docket No. 9.) Judge Scott granted the motion. (Docket No. 13.) Richard H. Wyssling, Esq. subsequently entered a notice of appearance on Plaintiff's behalf. (Docket No. 18.)

Wyssling and counsel for Defendant, James J. Rooney, Esq., prepared a joint discovery plan. (Docket No. 33, ¶ 4.) Under the plan, Plaintiff was scheduled to be deposed on September 21, 2006. (Id. ¶ 12.) When Wyssling informed Plaintiff about the deposition, Plaintiff asked Wyssling to immediately meet with him. (Id. ¶¶ 13-14.) Wyssling agreed and, at the meeting, Plaintiff asked Wyssling to provide him with a list of all the questions he would be asked at the deposition. (Id. ¶ 15.) Wyssling informed Plaintiff that he was not entitled to an advance list of questions and, according to Wyssling, an "angry debate" ensued. (Id.) Thereafter, Wyssling filed a motion to withdraw as attorney. (Docket No. 33.) Judge Scott granted the motion. (Docket No. 36.)

Following Wyssling's withdrawal, the Hon. Joseph S. Mattina (Ret.), Esq. appeared pro bono on Plaintiff's behalf for the purpose of facilitating a settlement. (Docket No. 36.) Mattina was able to secure an offer of $10,000 from Defendant, but Plaintiff refused to entertain any offer "less than $100,000." (Docket No. 96, p. 4.) Mattina then moved to withdraw from further representation, and the Honorable H. Kenneth Schroeder, Jr., United States Magistrate Judge, granted the motion. (Docket No. 40.)*fn3

Plaintiff again moved for the appointment of counsel. (Docket No. 42.) Judge Schroeder denied Plaintiff's Motion, finding that Plaintiff had not demonstrated a likelihood of success on the merits of his claim, and also noting that Plaintiff had dismissed two prior court appointed attorneys. (Docket No. 63.)

ii. Plaintiff's Discovery Obligations

a. Medical Examinations

Plaintiff was scheduled to undergo a follow-up independent medical examination performed by Dr. Michael Lynch on October 8, 2007. (Docket No. 93, ¶ 6.) But on the morning of the scheduled appointment, Plaintiff called Dr. Lynch's office to say that he would not attend. (Id. ¶ 6.) Plaintiff's appointment was rescheduled for November 29, 2007. (Id.) Plaintiff also failed to attend that ...


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