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Yadav v. Brookhaven National Laboratory

October 19, 2010

RAJESHWAR SINGH YADAV, PLAINTIFFS,
v.
BROOKHAVEN NATIONAL LABORATORY, BROOKHAVEN SCIENCE ASSOCIATES, MICHAEL HOLLAND, DR. SAMUEL ARONSON, MICHAEL BEBON, LANNY BATES, EDWARD MURPHY, THOMAS TIMKO, JOHN DINICOLA, GARRY OLSON, SUSAN FOSTER AND MICHAEL GOLDMAN, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Lindsay, Magistrate Judge

REPORT AND RECOMMENDATION

Before the court is the Brookhaven defendants' letter dated September 26, 2010 indicating that the pro se plaintiff has not complied with the undersigned's September 2, 2010 order that he respond to outstanding discovery requests. The defendants request that this action be dismissed for failure to prosecute. The plaintiff has made no response to this application.

A brief recitation of the relevant procedural history of this action is as follows. The plaintiff filed his complaint in December 2009. In May 2010, after District Judge Feuerstein set a pretrial conference in this case for November 8, 2010, the undersigned issued a scheduling order and established September 23, 2010 as a deadline for the completion of discovery. In June 2010, the plaintiff moved for an extension of time to complete discovery, which the undersigned denied due to the district court's pretrial conference date and the plaintiff's failure to show that he has been working diligently to meet the deadlines. Thereafter, in July 2010, the plaintiff moved before District Judge Feuerstein, inter alia, for an extension of time to complete discovery, an adjournment of the pretrial conference date, and a settlement conference. District Judge Feuerstein denied the request for an extension of the discovery deadline and for an adjournment of the November 8, 2010 pretrial conference as premature and granted the plaintiff's application for a settlement conference. The conference was scheduled for July 29, 2010, and the district court made clear that this did not stay or otherwise affect discovery in this action. The plaintiff moved to adjourn the settlement conference, and the district court adjourned the conference to September 1, 2010.

In August 2010, the defendants moved to compel the plaintiff to comply with their First Set of Interrogatories and Document Requests served on June 22, 2010. The plaintiff opposed the application and indicated in part that he did not respond, in part, because he was hoping the case would be settled at the September 1, 2010 conference.

At the settlement conference on September 1, 2010, District Judge Feuerstein repeatedly warned the plaintiff that his complaint would be dismissed if he failed to comply with the discovery order that was to be issued by the undersigned. The colloquy between the plaintiff and the district court at that conference was as follows:

The Court: So she [Magistrate Lindsay] will decide it. Okay? And after that, assuming that your case survives that, then I'm going to ask the defendants, once they get suitable disclosure, and if [J]udge Lindsay orders you to serve additional discovery and you fail to do it by the deadline she gives you, I'm going to dismiss the case.

Is that understood?

Mr. Yad[a]v: Your Honor--

The Court: Yes or no?

Mr. Yad[a]v: Yes that's understood.

The Court: Okay. They have brought a motion before Judge Lindsay. She is going to issue an order. If that order tells you t hat you have to give them more information and you fail to do so within the period of time that she requires you to do so, I'm going to dismiss this case.

Is that understood?

Mr. Yad[a]v: That's understood.

The Court: . . . So they have already filed a motion. That is ...


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