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Cain v. Simon & Schuster

April 15, 2013


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.0



Inez Cain, now proceeding pro se*fn1 brings this action against defendants Simon & Schuster ("S&S"), Karen Hunter and Karen Hunter Publishing, Inc ("KHP"). Cain alleges race discrimination under section 1981 of Title 42 of the United States Code ("Section 1981")*fn2 with regard to the publishing of her first novel, The Diary of a Mad Legal Secretary (the "Book"). Defendants now move to dismiss Cain's Amended Complaint for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and failure to comply with the Court's discovery Order pursuant to Federal Rule of Civil Procedure 37(b)(2).For the following reasons, defendants' motion is denied.


A. Factual Background

In December 2006, Cain, an African-American author, wrote her first novel under the name Eve Halliburton.*fn4 The Book was submitted to S&S to be considered for publication. In March 2008, Cain received an e-mail from Karen Hunter on behalf of S&S indicating that she had read the Book and was interested in having it published by S&S with an accompanying book tour.*fn5 In April 2008, Cain and Hunter met to discuss the Book. Cain was offered a $50,000 advance and a tentative release date of Secretary's Day in September 2009.*fn6 Over the next month, there were several e-mail exchanges with editing suggestions, the actual amount of the advance, as well as art direction for the Book.*fn7

On June 16, 2008, Cain spoke with Hunter on the phone to inquire about the contract.*fn8 Cain alleges that Hunter decided, on behalf of S&S, that the Book would be geared to a network of African-American readers only instead of being published for a mainstream audience.*fn9 Cain disagreed with this approach. Cain alleges that Hunter, on behalf of S&S, told Cain that S&S "did not create a publishing company for people that looked like her."*fn10 When pushed by Cain to explain what that meant, Hunter stated that "S&S did not create their publishing company for black people."*fn11 Subsequently, Cain contacted Louise Burke of S&S to inform her of Hunter's comments. Cain alleges that Burke informed her that she was responsible for Hunter and that Hunter had the authority from S&S to reject Cain's book publishing deal.*fn12

Cain alleges that Hunter, as an agent and/or employee of S&S, violated her civil rights in deciding to aim publication of the book toward African-Americans instead of a mainstream audience, as initially proposed.*fn13 Further, Cain alleges that after she met with Hunter, Hunter changed the original agreement because of racial bias.*fn14 As a result of defendants' discriminatory conduct, Cain alleges that she has suffered damages and continues to suffer irreparable harm and injury, extreme mental anguish, emotional distress, humiliation and embarrassment.*fn15

B. Procedural History

On August 16, 2012, this Court entered a scheduling order setting forth several deadlines, including November 15, 2012, as the deadline for responses to defendants' document requests.*fn16 Defendants served Cain with the first set of interrogatories and requests for documents on September 14, 2012, with responses due October 15, 2012.*fn17 Defendants allege that Cain failed to produce the requested documents and did not respond to at least five written requests between October 22 and November 21, 2012, asking for this production.*fn18

On November 28, 2012, Cain, through her counsel, produced an incomplete set of responses to S&S's discovery requests.*fn19 Counsel for S&S advised plaintiff's counsel of these deficiencies and requested full compliance before Cain's scheduled December 18, 2012 deposition.*fn20 In light of S&S's failed attempts to get discovery responses from Cain, defendants sent this Court a letter dated December 11, 2012.*fn21 KHP's counsel also joined in the request for judicial intervention. Cain's counsel did not respond to these letters. Subsequently, on December 17, 2012, this Court held a teleconference with counsel for all parties regarding the outstanding discovery requests. *fn22

This Court directed Cain's counsel to respond to all outstanding discovery requests by December 28, 2012. *fn23

Defendants maintain that they did not receive any further responses from plaintiff.

On January 2, 2013, S&S was granted leave to file the instant motion to dismiss for failure to prosecute, in which KHP's counsel joined. *fn24

Cain, now proceeding pro se, submitted a letter to the Court dated January 16, 2013, stating that she first became aware on January 11, 2013 of her counsel's repeated failures to respond. Cain's counsel moved to withdraw on February 1, 2013 -- after the instant motion was filed.*fn25 Cain alleges that she was unaware of any outstanding discovery requests and ...

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