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Peterson v. Apple Inc.

United States District Court, Second Circuit

July 10, 2013

ANDREA PETERSON, Plaintiff,
v.
APPLE INC., Defendant.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, Magistrate Judge.

Plaintiff Andrea Peterson, proceeding pro se, brought this action pursuant to the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law alleging that defendant Apple Inc. ("Apple") refused to hire her on the basis of her age and negligently inflicted emotional distress. See Complaint, filed Aug. 23, 2012 (Docket #1) ("Compl."). Apple now moves to dismiss this action based on Peterson's failure to comply with Court orders and her failure to prosecute pursuant to Rules 37(b)(2) and 41(b) of the Federal Rules of Civil Procedure. Because Peterson has filed no opposition to the motion, and because the motion is meritorious for the reasons discussed below, Apple's motion should be granted and the case should be dismissed with prejudice.

I. BACKGROUND

A. Peterson's Refusal to Comply with Court Orders Concerning Her Deposition

On January 2, 2013, the Court held an Interim Pretrial Conference to rule on a number of discovery disputes. See Order, filed Jan. 10, 2013 (Docket #31) ("Jan. 10 Order"). During the conference, Peterson objected to Apple's request that she appear for a deposition in New York. See Declaration of Meredith L. Kaufman in Support of Defendant's Motion to Dismiss Pursuant to FRCP Rules 37(b)(2) and 41(b), filed May 6, 2013 (Docket #62) ("Kaufman Decl."), ¶ 4. She claimed that she had relocated to Atlanta, Georgia and could not afford to travel to New York for a deposition. Id.[1] Accordingly, the Court ruled that Peterson need not travel to New York, but granted Apple "the option to elect whether (1) plaintiff shall appear for her deposition at Littler Mendelson P.C.'s office located in Atlanta, Georgia or (2) the deposition is conducted from plaintiff's home by telephone." Jan. 10 Order at 2. Peterson also requested that pro bono counsel be appointed to represent her at the deposition. Kaufman Decl. ¶ 5. The Court informed her that she was unlikely to satisfy the standard for the appointment of counsel, see Transcript, filed Mar. 6, 2013 (Docket #45), at 33, and ordered that she appear at the deposition without counsel if she had not obtained one by that time, Jan. 10 Order at 2.

On January 10, 2013, Apple served Peterson with a notice for a video deposition to take place at Littler Mendelson P.C.'s Atlanta office on February 5, 2013. Notice of Video Deposition, dated Jan. 10, 2013 (annexed as Ex. A to Kaufman Decl.) ("Notice"). By e-mail dated January 12, 2013, Peterson informed Apple that she was "unwilling to have a deposition without Pro Bono Counsel.'" Kaufman Decl. ¶ 7. In a subsequent e-mail, however, she stated that she would provide Apple with dates during which she was available for a deposition. Id . Peterson never provided Apple with her dates of availability. Id . ¶ 8.

As a result, Apple sought an order compelling Peterson to appear at a deposition by March 5, 2013. See Letter from Meredith L. Kaufman to Hon. Gabriel W. Gorenstein, dated Jan. 22, 2013 (Docket #37). On January 25, 2013, the Court ruled that Peterson "need not appear on February 5, 2013, if that date [was] inconvenient for her." Order, filed Jan. 25, 2013 (Docket #35) ("Jan. 25 Order"), at 2. But the Court ordered Peterson "to provide defendant with a list of any dates between February 15, 2013, and March 15, 2013, for which she is unavailable for a deposition" and that she do so "on or before February 1, 2013." Id . (emphasis in original). As of February 4, 2013, however, Peterson had not provided a list of days that she was unavailable. See Kaufman Decl. ¶ 12. Defense counsel e-mailed Peterson "to advise her that Apple understood her silence to mean that she was available through March 15, 2013, and that it would schedule her deposition accordingly." Id . In an e-mail the following day, Peterson responded "that Apple should schedule whatever date of [its] choice.'" Id . (alteration in original).

On February 8, 2013, the Court reminded Peterson of her obligation to provide a list of dates that she was unavailable and sua sponte extended the time for her to produce the list of unavailable dates until February 14, 2013. Order, filed Feb. 8, 2013 (Docket #39) ("Feb. 8 Order"), at 2. The Court warned Peterson that if she failed to comply with the order, "she may be subject to sanctions, including dismissal of the case." Id . Peterson then sought a stay of the entire case. See Motion for Stay, filed Feb. 12, 2013 (Docket #40). The Court denied Peterson's request and "remind[ed] plaintiff that, in the absence of a stay, she must comply with Court orders." Order, filed Feb. 13, 2013 (Docket #42) ("Feb. 13 Order"), at 1. Peterson was cautioned that if she disobeyed Court orders, "she [would] be subject to sanctions including the potential dismissal of this case." Id . Peterson filed objections pursuant to Fed.R.Civ.P. 72(a) to the February 8 Order as well as previous orders. See Plaintiff F. R. Civ. P. Rule 72 Objection, filed Feb. 15, 2013 (Docket #43). Those objections were later overruled. See Order, filed April 22, 2013 (Docket #59).

On February 15, 2013, Apple served Peterson with a revised notice for a deposition, scheduling Peterson's deposition for March 12, 2013 in Atlanta. Revised Notice of Video Deposition, dated Feb. 15, 2013 (annexed as Ex. B to Kaufman Decl.). Because Peterson did not object, Apple expended substantial time and resources preparing to take Peterson's deposition on this date. Kaufman Decl. ¶ 13. Besides the time defense counsel spent preparing for the deposition, one of the attorneys also cleared her calendar in order to travel to Atlanta. Id. at 5 n.4. Additionally, the staff at defense counsel's firm spent considerable time arranging for and testing a video conferencing system, copying documents for use in the deposition, and scheduling a court reporter and videographer. Id . On March 7, 2013, Peterson e-mailed defense counsel requesting that the deposition be rescheduled because she was "still out of town due to various issues associated with major surgery.'" Id . ¶ 14. Prior to this communication, Peterson had never mentioned to defense counsel plans to travel or to undergo surgery. Id . Apple replied that it intended to go forward with the deposition on March 12, 2013 as scheduled and that if Peterson was unable to attend, she would need to request an extension from the Court. Id.

In response, on March 8, 2013, Peterson filed an "emergency motion" for a protective order staying her deposition. Plaintiff [sic] Emergency Motion for Protective Order Deposition [sic], filed Mar. 8, 2013 (Docket #48) ("Emergency Motion"). Claiming, among other things, that she was in New Orleans, Louisiana for a surgery, she requested that the deposition be cancelled. Id . ¶¶ 6-8. On March 11, 2013, the Court directed that the deposition be rescheduled and that it take place on or before April 2, 2013. Order, filed Mar. 11, 2013 (Docket #50) ("Mar. 11 Order"). The Court ordered Peterson, by March 15, 2013, to either: (1) "inform defendant in writing of any dates between March 20 and April 2, 2013, when she is unavailable, " or (2) "provide a written explanation from a medical doctor that describes why she cannot proceed and when she can be expected to be able to proceed." Id . (emphasis in original). Peterson was "reminded that her request for review and her request for a stay do not operate as a stay" and that "[i]f she fails to comply with Court orders, her case may be dismissed." Id.

Without providing Apple the information ordered by the Court, see Kaufman Decl. ¶¶ 17-18, on March 16, 2013, Peterson filed a notice of appeal of the Court's March 11 Order. See Notice of Appeal, filed Mar. 16, 2013 (Docket #51) ("Appeal Notice"). On the same day, she sent a letter to defense counsel claiming that "the SDNY no longer ha[d] jurisdiction of this case.'" Kaufman Decl. ¶ 18.[2] Peterson stated that a planned surgery had not yet been rescheduled and she attached a recent e-mail she had sent to her insurance company requesting that the surgery be rescheduled, as well as a 55-page e-mail exchange between Peterson and her insurance company regarding her surgery. Id. at 7 n.6. Similarly, on March 19, 2013, Peterson requested that the Court delay her deposition. See Plaintiff [sic] Response Court [sic] Order to Provide Deposition Date, filed Mar. 19, 2013 (Docket #53) ("Pl. Resp."). In support of the request, she submitted to the Court the e-mails with her insurance company that she had provided to defense counsel. See Exs. B & C to Pl. Resp.

This submission, however, did not comply with the Court's March 11 order, as it neither provided dates during which she was unavailable between March 20 and April 2, 2013, nor any statement from a medical doctor explaining why she could not attend her deposition. Instead, the e-mails reflected that Peterson was asserting that she was in New Orleans waiting for surgery to be rescheduled. See E-mail from Andrea Peterson to Anita Kendrick (Mar. 15, 2013, 13:25 EST) (annexed as Ex. B to Pl. Resp.). The e-mails also reflect that the planned surgery follows from a previous surgery Peterson had undergone nine years earlier, in 2004. See E-mail Exchange (annexed as Ex. C to Pl. Resp.), at 2-5, 8-9, 32, 34-35, 38. Nor were the e-mails current as they largely began in December 2011, before suit this was filed, and ended in August 2012. Peterson provided no documentation of her current medical condition at all and provided no information as to how she came to be in New Orleans, her location within New Orleans, and/or her ability to appear for a deposition in either New Orleans, Atlanta, or anywhere else.

In response, this Court issued an order finding that "plaintiff has not complied with the Court's order of March 11, 2013, or the prior orders requiring her to cooperate in the scheduling of her deposition. Nor has she provided any valid explanation of her failure to comply." Order, filed Mar. 29, 2013 (Docket #55) ("Mar. 29 Order"), at 2. The Court noted that there was a "basis now to sanction plaintiff pursuant to Fed.R.Civ.P. 37(b)(2)" - including by dismissal of the case - and that dismissal may also be appropriate for failure to prosecute. Id . However, "[t]he Court instead elect[ed] to give plaintiff one more opportunity to cure her failure." Id . The Court ordered Peterson to provide to Apple, on or before April 4, 2013, either:

(1) a list of dates of non-availability for her deposition for the period between April 15 and May 3, 2013 or (2) a written statement from a medical doctor that describes any physical limitations on plaintiff's ability to proceed with her deposition and explains when plaintiff can be expected to proceed.

Id. Again, the Court warned Peterson "that her failure to comply with this order may result in dismissal of this case." Id . If Peterson failed to comply with the order, the Court gave leave to Apple to seek dismissal. Id.

On April 4, 2013, Peterson filed a submission with the Court which she characterized as a "motion for clarification." See Motion for Clarification. In it, she requested a protective order for the use of her medical records, see id. ¶¶ 6-7 - a request which this Court had already granted, see Jan. 25 Order at 2; Feb. 8 Order at 1 - and attached an 11 page letter, dated March 26, 2013, that she wrote to a Dr. Jeffrey Kelman, M.D., Chief Medical Officer for the Center for Medicare and Medicaid Services, see letter from Andrea Peterson to Jeffrey Kelman, dated Mar. 26, 2013 (annexed as Ex. B to Motion for Clarification).

The Court denied her motion and found "again [that she] failed to comply with a Court order." Order, filed Apr. 8, 2013 (Docket #57) ("Apr. 8 Order"), at 1. Extending to Peterson one "final opportunity to cure her failure" to comply with Court orders, the Court ordered as follows:

On or before April 18, 2013, plaintiff shall provide to defendant either (1) a list of dates of non-availability for her deposition for the period between April 22 and May 17, 2013; or (2) a written statement from a medical doctor that describes any physical limitations on plaintiff's ability to proceed with her deposition and explains when plaintiff can be expected to proceed. The Court reiterates that if plaintiff provides the dates as required by this Order, plaintiff obviously must appear for her deposition on the available date chosen by defendant. The Court also restates that if plaintiff is unable to appear in Atlanta for her deposition, she may explain to defendant her ...

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