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Quentin La Grande v. Decrescente Distributing Co.

August 24, 2011

QUENTIN LA GRANDE, PLAINTIFF,
v.
DECRESCENTE DISTRIBUTING CO., INC., DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff brought this action pursuant to Title VII of the Civil Rights Act, alleging racial discrimination, sexual harassment, and retaliation. Currently before the Court are Defendant's motion to dismiss, pursuant to Federal Rules of Civil Procedure 37 and 41, and Plaintiff's two motions for reconsideration of Magistrate Judge Homer's Orders dated April 6, 2011, and April 29, 2011, respectively.

II. BACKGROUND

Plaintiff commenced the instant action by filing a complaint on April 14, 2006. See Dkt. No. 1, Complaint. Plaintiff filed an amended complaint on July 17, 2006. See Dkt. No. 4, Amended Complaint. Defendant moved to dismiss the amended complaint on February 20, 2007. See Dkt. No. 14, Motion to Dismiss. The Court granted Defendant's motion to dismiss on June 9, 2008. On March 23, 2010, the Second Circuit affirmed the dismissal in part, vacated in part, and remanded this matter to the Court. See Order dated March 23, 2010.

Upon remand, the parties could not work together to develop a case management plan, and Plaintiff's refusal to discuss this case with Defendant's counsel emerged as the theme of the discovery process. Defendant's counsel wrote to Plaintiff on multiple occasions to try to arrange a conference regarding the plan; but Plaintiff refused to do so, instead demanding that Defendant settle this case. See Dkt. No. 78, Motion to dismiss and Exhibit "K" attached thereto, email correspondence. When Defendant's counsel attempted to call Plaintiff at a mutually agreed-upon time to discuss the preparation of a plan, Plaintiff did not answer the phone. See Dkt. No. 78, Exhibit "1" attached thereto, Affirmation of Sanjeeve K. DeSyoyza ("DeSoyza Aff."), at ¶ 19.

Due to Plaintiff's unresponsiveness, Defendant filed a proposed plan on its behalf only.

See DeSoyza Aff. at ¶¶ 24-25 & Exhibits "S" and "T" attached thereto. Plaintiff and Defendant's counsel attended a conference with the Court on August 18, 2010. See DeSoyza Aff. at ¶ 27. At the conference, the Court reminded Plaintiff of his obligations to respond to discovery demands and appear for depositions. See id. Plaintiff responded that he understood and would comply with his obligations. See id.

After the conference, the refusal to comply with discovery demands and the repeated requests for time extensions characterized Plaintiff's behavior. See DeSoyza Aff. at ¶¶ 29-33 & Exhibits "X," "Y," "Z," and "AA" attached thereto. Plaintiff also moved to disqualify Defendant's counsel's firm; for leave to file an amended complaint; for leave to add additional parties; and subpoenas for the records of two law enforcement agencies. See id. The Court denied all of Plaintiff's motions except for his request for additional time. See id. at ¶ 35 & Exhibit "CC" attached thereto.*fn1

During a conference on November 22, 2010, Plaintiff asked for another stay of proceedings, this time for medical reasons. See id. at ¶ 40. When Plaintiff could not provide confirmation from a health care provider, the Court denied Plaintiff's request to stay proceedings. See id. The Court further ordered Plaintiff to submit his discovery responses by December 15, 2010. See id. & Exhibit "GG" attached thereto. Plaintiff has yet to file a response.

III. DISCUSSION

A. Defendant's motion to dismiss

1. Governing federal rules

Federal Rule of Civil Procedure 37(b) states that where "a party . . . fails to obey an order to provide or permit discovery . . . the court where the action is pending may . . . dismiss[] the action or proceeding in whole or in part." Fed. R. Civ. P. 37(b). Federal Rule of Civil Procedure 41(b) sets forth that, where a "plaintiff fails to prosecute or to comply with ...


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