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Bryon Biggs v. P & B Capital Group

March 6, 2012


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



Plaintiff commenced this action under Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e et seq., by filing a Complaint in the United States District Court for the Western District of New York. Presently before this Court is Defendant's Motion to Dismiss pursuant to Rule 37(b) of the Federal Rules of Civil Procedure.*fn1 This

is the first motion filed by Defendant on this ground. Also before this court is Plaintiff's Motion for Default Judgment. For the reasons stated below, both Defendant's and Plaintiff's motions are denied.


This motion arises from a discovery ruling issued by the Honorable Leslie G. Foschio, United States Magistrate Judge. On April 1, 2011, Defendant filed a Motion to Compel Plaintiff to respond to Interrogatories 1, 2, 5, 8, 9, 10, and 11 of its First Set of Interrogatories because it deemed Plaintiff's initial response inadequate. (Docket No. 57.)

On May 3, 2011, Judge Foschio held oral argument on Defendant's motion. (Docket No. 66.) The minute entry for the proceeding shows that the motion was granted as to some of the interrogatories, mooted as to parts of others, and withdrawn in the case of some. As to those interrogatories on which the motion was granted, Judge Foschio directed Plaintiff to file appropriate interrogatory responses within ten days. Thereafter, Plaintiff filed a one sentence motion for reconsideration, arguing that the number of questions posed by Defendant was unduly burdensome. (Docket No. 69.) At the same time, Plaintiff filed a motion for extension of time to file answers to the interrogatories, and objections to the scheduling order, issued the day after oral argument, citing personal family matters. (Docket Nos. 70, 71.) These motions were followed by a trio of identical motions three days later. (Docket Nos. 75, 76, 77.) Each of these motions and objections was denied. (Docket Nos. 72, 73, 74, 79.)

Presumably to comply with Judge Foschio's order to respond to Defendant's interrogatories within ten days, Plaintiff filed a Supplemental Answer on May 23, 2011, dated May 13, 2011. (Docket No. 82.) But Defendant found these responses to still be deficient, and stated as much in a letter to Plaintiff dated May 17, 2011. (Docket No. 81-4.) Defendant thereafter filed the present motion to dismiss on the basis of noncompliance with Judge Foschio's discovery order. (Docket No. 80.)

Since that motion, Plaintiff has filed two letters, dated June 9, 2011 and June 27, 2011, in which he expresses a willingness to submit for deposition but, in his first letter, only for an hour and at Defendant's expense and then only later, in his second letter, for a full seven hours and at his own cost. (Docket Nos. 85, 89.) Plaintiff also filed a response, titled an "Answer to Defendant's second request to Dismiss," in which he alleges that dismissal of his case would be unconstitutional. (Docket No. 88.)

Judge Foschio ordered this action stayed pending resolution fo Defendant's Motion to Dismiss. (Docket No. 97.) Plaintiff nevertheless filed a motion for default judgment a week later. (Docket No. 99.)


A. Defendant's Rule 37(b) Motion

"A district court may impose sanctions when 'a party . . . fails to obey an order to provide or permit discovery.'" Burns v. Imagine Films Entm't, Inc., 164 F.R.D. 594, 598 (W.D.N.Y. 1996) (quoting Fed. R. Civ. P. 37(b)). Rule 37 of the Federal Rules of Civil Procedure, which concerns the discovery obligations of civil litigants, vests district courts with "broad power" and discretion to impose sanctions, including dismissal, on parties who fail to adhere to discovery orders. See Friends of Animals, Inc. v. U.S. Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997) (per curiam); see also Jones v. J.C. Penney's Dep't Stores, Inc., 228 F.R.D. 190, 195 (W.D.N.Y. 2005) (identifying dismissal of the action as an available sanction under Rule 37); JSC Foreign Econ. Ass'n. Technostroyexport v. Int'l Dev. & Trade Servs., Inc., No. 03 Civ. 5562, 2005 WL 1958361, at *9 (S.D.N.Y. Aug. 16, 2005).

While Rule 37 dismissal is a drastic remedy to be reserved only for extreme circumstances, it "is warranted . . . where a party fails to comply with the court's discovery orders willfully, in bad faith, or through fault." John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988) (and cases cited therein); see also Societe Int'l v. Rogers, 357 U.S. 197, 212, 78 S. Ct. 1087, 2 L. Ed. 2d 1255 (1958) (sanctions under Rule 37 justified where responding party has control over information requested and fails or refuses production without showing of inability to comply with court's order). Moreover, "dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal." Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d ...

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