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Charles Quattlebaum v. Corrections Officer Mcdonald; Harold Smith; Robert Loveridge; and

February 6, 2012

CHARLES QUATTLEBAUM, PLAINTIFF,
v.
CORRECTIONS OFFICER MCDONALD; HAROLD SMITH; ROBERT LOVERIDGE; AND COUNTY OF RENSSELAER, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On September 23, 2010, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. Defendants filed their answer on October 21, 2010. See Dkt. No. 11. Currently before the Court is Defendants' motion to dismiss pursuant to Rules 37 and 41(b) of the Federal Rules of Civil Procedure.

II. BACKGROUND*fn1

On December 9, 2010, Magistrate Judge Treece issued a Uniform Pre-Trial Scheduling Order, directing that discovery be completed by October 21, 2011. See Dkt. No. 15. On August 1, 2011, pursuant to a joint letter motion, Magistrate Judge Treece granted the parties' request to extend the discovery deadline until December 16, 2011. See Dkt. Nos. 17, 18. Following the completion of paper discovery in October of 2011, the parties agreed that Plaintiff's deposition would take place at the law offices of Napierski, Vandenburgh, Napierski & O'Connor, LLP, on November 10, 2011. See Dkt. No. 21-2. On November 9, 2011, Defendants were notified by Plaintiff's counsel that Plaintiff would not appear for the November 10, 2011 deposition. See Dkt. No. 21-1 at ¶ 7.

Thereafter, Defendants attempted to coordinate with Plaintiff's counsel to set a new date for Plaintiff's deposition. See id. at ¶ 8. Defendants' counsel, however, was informed by Plaintiff's counsel that Plaintiff was not cooperating with Defendants' demand that he appear for a deposition. See id. Since Defendants were unsuccessful in scheduling Plaintiff's deposition and with the discovery deadline approaching, on November 29, 2011, Defendants submitted a letter to Magistrate Judge Treece requesting a conference to discuss Plaintiff's refusal to appear for a deposition. See Dkt. No. 20. That same day, Magistrate Judge Treece denied the request for a telephone conference as unnecessary. However, Magistrate Judge Treece reminded the parties that in his August 1, 2011 order extending the discovery deadline, he ordered that "there would be no further extensions[,]" and noted that "[t]his Court does not intend to retreat from that admonition." See Text Order dated November 29, 2011. Further, Magistrate Judge Treece informed the parties that, "[i]f Plaintiff does not submit to a deposition by December 16, 2011, the Defendants may file a motion to dismiss for failure to prosecute and/or comply with discovery, without seeking further permission from the Court." See id.

On December 6, 2011, after coordinating a date with Plaintiff's counsel, Plaintiff was scheduled for a deposition on December 15, 2011. See Dkt. No. 21-1 at ¶ 11; Dkt. No. 21-3. Moreover, it was agreed that, after the deposition, Plaintiff would be examined by Defendants' expert ophthalmologist following his deposition. See id. In a confirmation letter dated December 6, 2011, Defendants' counsel advised Plaintiff's counsel that, pursuant to Magistrate Judge Treece's November 29, 2011 Order, if Plaintiff fails to appear for his deposition by December 16, 2011, Defendants would file a motion to dismiss for failure to prosecute and/or comply with discovery. See Dkt. No. 21-3. Again, Plaintiff failed to appear for his December 15, 2011 deposition. See Dkt. No. 21-1 at ¶ 12.

On December 19, 2011, Defendants filed a motion to dismiss for failure to prosecute and/or for failure to comply with discovery pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure. See Dkt. No. 21. In his response, Plaintiff does not contest the allegations in Defendants' motion, but argues that the Court should deny the motion because Plaintiff resides in South Carolina, he is legally blind, and is "a man of limited means who could not afford to travel to the Northern District for his deposition." See Dkt. No. 22 at ¶ 2.

III. DISCUSSION

Pursuant to the Federal Rules of Civil Procedure, the Court may dismiss a complaint for a party's failure to comply with a court order regarding discovery. See Fed. R. Civ. P. 37(b)(2)(A) (providing that, if a party "fails to obey an order to provide or permit discovery," the court may then make any orders regarding the failure to abide by the discovery order).*fn2 Rule 37 also contains a specific section providing sanctions for a "[p]arty's failure to attend its own deposition . . . ." Fed. R. Civ. P. 37(d); see also Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759 (2d Cir. 1990) (affirming dismissal of action, pursuant to Fed. R. Civ. P. 37, for pro se plaintiff's refusal to attend her deposition); Salahuddin v. Harris, 782 F.2d 1127 (2d Cir. 1986) (holding that a motion to dismiss for failure to participate in deposition is properly considered under Fed. R. Civ. P. 37).

The Second Circuit has stated that "all litigants, including pro ses, have an obligation to comply with court orders," Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990), and failure to comply may result in sanctions, including dismissal with prejudice. Rule 37 of the Federal Rules of Civil Procedure provides that "[i]f a party . . . fails to obey an order to provide or permit discovery . . . the court where the action is pending may issue further just orders . . . [including] dismissing the action or proceeding in whole or in part." Fed. R. Civ. P. 37(b)(2)(A)(v). Similarly, a district court may dismiss an action if a party fails to attend a deposition of that party. See Fed. R. Civ. P. 37(d).

Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009); see also S.E.C. v. Setteducate, 419 Fed. Appx. 23, 24, 2011 WL 1227643, at *1 (2d Cir. 2011) (quoting Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (affirming dismissal sanction after a pro se plaintiff failed to appear for his deposition)). Dismissal pursuant to Rule 37 is appropriate "not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a sanction." Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).

In considering the possible range of sanctions, including dismissal, the following factors are relevant: (1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of noncompliance. See Agiwal, 555 F.3d at 302 (quotation and other citations omitted).

In addition to its authority to dismiss an action pursuant to Rule 37, the Court may also dismiss an action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. Rule 41(b) provides that, [i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule -- except ...


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