Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tolentino v. Heath

United States District Court, Second Circuit

July 19, 2013

EDWIN TOLENTINO, Plaintiff,
v.
HEATH, Superintendent, Defendant.

EDWIN TOLENTINO, Pro Se, Yongers, NY, for Plaintiff.

MICHAEL G. McCARTIN, ESQ., Assistant Attorney General, ERIC T. SCHNEIDERMAN, Office of the Attorney General, State of New York, Albany, NY, for Defendant.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, Magistrate Judge.

Pro se plaintiff Edwin Tolentino, a former New York State prison inmate, has commenced this action asserting civil rights claims pursuant to 42 U.S.C. § 1983 against the superintendent of the correctional facility in which he was confined at the relevant times. Following the joinder of issue, the court entered an order that, inter alia, granted defendant leave to take plaintiff's deposition. Defendants thereafter served plaintiff with a notice to take his deposition on April 9, 2013. Plaintiff, however, failed to appear for that deposition.

Currently pending before the court is defendant's motion for sanctions, pursuant to Rule 37 of the Federal Rules of Civil Procedure, based upon the foregoing circumstances. Plaintiff did not respond to that motion, and has failed to respond to the court's order to show cause why this action should not be dismissed. For the reasons set forth below, I recommend that defendant's motion be granted, and plaintiff's complaint be dismissed.

I. BACKGROUND

Plaintiff commenced this action on August 17, 2012. Complaint (Dkt. No. 1). At the time, plaintiff was a New York State prison inmate confined in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), and designated to the Greene Correctional Facility, located in Coxsackie, New York. Id. Shortly after commencement of the action, however, plaintiff notified the court of his change of address, which he listed as 234 First Street, Yonkers, New York 10704. Dkt. No. 4.

On January 29, 2013, the court issued the standard mandatory pretrial discovery and scheduling order issued in all such inmate cases, pursuant to Rule 16 of the Federal Rules of Civil Procedure. Dkt. No. 14. That order set out certain obligations of the parties regarding discovery, specifically permitted leave to defendant to take plaintiff's deposition, pursuant to Rule 30(a)(2)(B) of the Federal Rules of Civil Procedure, and established deadlines for the completion of discovery and the filing of dispositive motions. See generally id. It was mailed to plaintiff using the address of the prison facility in which he was confined at the time. Id. There is no indication in the court's records that the order was returned as undeliverable. See generally Docket Sheet.

On March 15, 2013, defendant's counsel issued a notice requiring plaintiff to appear for deposition in Albany, New York on April 9, 2013. McCartin Decl. (Dkt. No. 16-2) at ¶ 4; McCartin Decl. Exh A (Dkt. No. 16-3) at 7. The declaration of service annexed to that notice reflects that it was mailed to plaintiff at the address reflected in the court's records on March 15, 2013. McCartin Decl. Exh. A (Dkt. No. 16-3) at 8. Plaintiff failed to appear for the deposition on April 9, 2013, however, and made no attempt to contact defendant's attorney, either before or after that date, to advise counsel of his inability to appear for deposition. McCartin Decl. (Dkt. No. 16-2) at ¶ 6.

On April 24, 2013, defendant filed a motion seeking sanctions against plaintiff for his failure to appear for the scheduled deposition. Dkt. No. 16. Defendant specifically request dismissal of plaintiff's complaint pursuant to Rule 37 of the Federal Rules of Civil Procedure. Id. Plaintiff has not responded in opposition to that motion. See generally Docket Sheet.

By text notice dated May 30, 2013, the court scheduled an on-the-record telephone conference, to be held on June 11, 2013, to address defendant's motion. Text Notice Dated May 30, 2013. A member of the court's staff also notified plaintiff by telephone of the scheduled conference, leaving a voicemail message using the number in the court's records. Id.

On the date and time of the scheduled hearing, neither defendant's counsel nor the court was able to contact plaintiff at the telephone number listed. Text Minute Entry Dated June 11, 2013. When a member of chambers staff called the telephone number provided by plaintiff, the person that answered advised that she does not know the plaintiff, and the telephone number used by the court had been assigned to her for approximately the last three months. Id.

Out of an abundance of caution, and in deference to his pro se status, I issued a text order dated June 11, 2013, directing plaintiff to file an affidavit, on or before June 28, 2013, showing cause why the action should not be dismissed for failure to prosecute and to comply with the court's orders. Dkt. No. 18. That notice further advised that, "[i]f the plaintiff does not comply with this order, a Report and Recommendation will be issued to Chief District Judge Sharpe recommending this case be dismissed." Id. Plaintiff has failed to respond to that order to show cause.

II. DISCUSSION

Defendants' motion implicates two separate provisions of Rule 37 of the Federal Rules of Civil Procedure. Rule 37(b)(2) provides for a range of sanctions available to a court in the event of a failure to obey a discovery order. Fed.R.Civ.P. 37(b)(2); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 101 (2d Cir. 1995). Among those available sanctions is dismissal of an action, in whole or in part. Fed. Civ. P. Rule 37(b)(2)(A)(v); see Linde v. Arab Bank, PLC, 269 F.R.D. 186, 196 (E.D.N.Y. July 12, 2010) ("Such sanctions may include... dismissing a claim or the entire action or granting default judgment against the disobedient party[.]"). In addition, Rule 37(d) permits the court to issue appropriate sanctions based upon the failure of a party to appear for deposition after being served with a proper notice. Fed.R.Civ.P. 37(d)(1)(A); see Dixon v. Albany Cnty. Bd. of Elections, No. 08-CV-0502, 2010 WL 1171225, at *2 (N.D.N.Y. Feb. 18, 2010) (Homer, M.J.), report and recommendation adopted by 2010 WL 1171483 (N.D.N.Y. Mar. 22, 2010) (Sharpe, J.), ("Rule 37(d) authorizes the same range of sanctions [offered in Rule 37(b)] against a party for failing to attend his or her deposition.").[1]

In this instance, plaintiff failed to comply with the court's Rule 16 discovery order, which required him to submit to a deposition pursuant to a notice mailed to him at least fifteen days prior to the scheduled deposition date. Discovery Order (Dkt. No. 21) at 3-4. In addition, he failed to appear for deposition pursuant to a proper notice mailed to him at the address listed in court records. Accordingly, Rule 37 authorizes the issuance of sanctions against plaintiff, which may include dismissal of his complaint.

At the time of the telephone conference on June 11, 2013, I was prepared to provide the plaintiff with one last opportunity to fulfill his obligation to appear for a deposition, out of deference to his pro se status, by issuing an order scheduling his deposition for a date certain and specified location. However, in light of plaintiff's failure to comply with the court's directive that he participate in a hearing to address defendants' motion, and plaintiff's failure to respond to the order to show cause, I conclude that dismissal is now warranted.

Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, order dismissal of an action based on a plaintiff's failure to comply with an order of the court[2]. Fed.R.Civ.P. 41(b); Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *2 (N.D.N.Y. Nov. 27, 2007) (Scullin, J. adopting report and recommendation by Lowe, M.J.). That discretion is appropriately exercised when necessary to "achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Williams v. Faulkner, No. 95-CV-0741, 1998 WL 278288, at *2 (N.D.N.Y. May 20, 1998) (Pooler, J., adopting report and recommendation by Scanlon, M.J.); Moshier v. Trabout, No. 96-CV-1666, 1998 WL 167298, at *1 (N.D.N.Y. Apr. 2, 1998) (Pooler, J. adopting report and recommendation by Hurd, M.J.).

A determination of whether to dismiss an action for failure to prosecute involves consideration of five specific factors, including (1) the duration of plaintiff's failure to comply with court orders; whether plaintiff was on notice that failure to comply would result in dismissal; (3) whether defendant is likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Shannon v. Gen. Elec. Co., 186 F.3d 186, 193 (2d Cir. 1999) (applying factors in a failure to prosecute action); Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (applying factors where party failed to comply with order of court). I have carefully evaluated those five factors, and find that they weigh decidedly in favor of dismissal.

This case has been pending for nearly one year, and it is likely that memories of the events in question have faded, relevant documents have been discarded, and potential witnesses have become unavailable. See, e.g., Geordiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) ("The passage of time always threatens difficulty as memories fade."). Given the procedural history associated with this case, I find that the need to alleviate congestion on the court's docket outweighs plaintiff's right to receive a further chance to be heard in this matter. While I have considered less-drastic sanctions, they have been rejected based on plaintiff's failure to participate in the adjudication process. For example, I am persuaded that issuing an order reprimanding the plaintiff for his conduct would be futile, given his chronicled history of non-compliance with court's directives and defendant's legitimate discovery requests.[3]

III. SUMMARY AND RECOMMENDATION

Through his actions, plaintiff has demonstrated a repeated failure to cooperate with both defendant's counsel and the court so that this action can be fairly, efficiently and timely adjudicated on its merits. Based upon plaintiff's failure to comply with a court's directive and defendant's notice that he appear for deposition, compounded by his failure to participate in an on-the-record conference to address that failure and defendant's request for dismissal of his complaint, and his additional failure to respond to the court's order to show cause, I conclude that plaintiff's complaint should be dismissed. Accordingly, it is hereby respectfully

RECOMMENDED that defendant's motion for sanctions (Dkt. No. 16) be GRANTED, and plaintiff's complaint in this action be DISMISSED in its entirety.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

Clifton M. Dixon, Albany, NY, pro se.

Samuel N. lroeghu, Esq., Albany, NY, for Plaintiff Justus4us.

Louis W. Brown, Albany, NY, pro se.

Frances Poole, Albany, NY, pro se.

Cleo B. Carter, Albany, NY, pro se.

Napierski, Vandenburgh & Napierski, L.L.P., Thomas J. O'connor, Esq., ASA S. Neff, Esq., of Counsel, Albany, NY, for Board of Elections defendants.

William J. Conboy, 11, Esq., Albany, NY, for Defendant Maffia Tobler.

Crane, Parente & Cherubin, Clemente J. Parente, Esq., of Counsel, Albany, NY, for Defendant Democratic Committee.

Feeney, Centi & Mackey, L. Michael Mackey, Esq., of Counsel, Albany, NY, for Defendant Jones.

DerOhannesian & DerOhannesian, Paul DerOhannesian, II, Esq., Jennifer C. Zegarelli, Esq., of Counsel, Albany, NY, for Defendant Willingham.

REPORT - RECOMMENDATION AND ORDER

DAVID R. HOMER, United States Magistrate Judge.

*1 Presently pending are the motions of defendants Albany County Board of Elections, County of Albany, James Frezzell, Stephanie Galka, Matthew Galka, and Matthew Clyne (collectively "Board of Elections defendants") and defendant Wanda Willingham ("Willingham") for dismissal of the complaint and other sanctions pursuant to Fed.R.Civ.P. 37 for plaintiffs' various alleged discovery failures and, in particular, the failure to attend depositions. Docket Nos. 86, 106. The other defendants have joined or are deemed to have joined the motions. See Docket Nos. 95, 102. Plaintiffs have filed no opposition to the motions. For the reasons which follow, it is recommended that defendants' motions be granted in part and denied in part.FN1

FN1. Among the forms of relief sought by defendants is dismissal of the action. Because dismissal would resolve all issues in the case, it constitutes a dispositive motion for which jurisdiction is reserved to the district court under 28 U.S.C. § 636(b)(1). Accordingly, defendants' motions are deemed referred to the undersigned for report and recommendation pursuant to §. 636(b)(1), Fed.R.Civ.P. 72(b), and N.D.N.Y.L.R. 72.1(a).

I. Plaintiffs' Failure to Respond to the Motions

Defendants' motions were filed on June 17 and September 30, 2009. Docket Nos. 86, 106. Any response from any plaintiff was required to be filed no later than November 2, 2009. Docket No. 106. No plaintiff filed a response prior to that date. On January 5, 2010, plaintiff pro se Clifton M. Dixon ("Dixon") requested and received an extension of fourteen days to file a response. Docket No. 111; Text Order dated 1/6/10. Still, no response has ever been filed by any plaintiff.

Relief "should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). The moving defendants provided such notice in their Notices of Motion here. Docket No. 86, 106. Despite these notices, all plaintiffs failed to respond. "The fact that there has been no response... does not... mean that the motion is to be granted automatically." Champion, 76 F.3d at 436. Even in the absence of a response, a defendant is entitled to relief only if the material facts demonstrate his or her entitlement to the relief sought as a matter of law. Id.

Because all plaintiffs have failed to respond to raise any question of material fact, the facts as set forth in defendants' supporting affirmations (Docket Nos. 86-1, 106-2) are accepted as true. Adirondack Cycle & Marine, Inc. v. Am. Honda Motor Co., No. 00-CV 1619, 2002 WL 449757, at *1 (N.D.N.Y. Mar.18, 2002) (McAvoy, J.) (citing Lopez v. Reynolds, 998 F.Supp. 252, 256 (W.D.N.Y.1997)); see also N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any facts set forth... that the opposing party does not specifically controvert. ") (emphasis in original). Accordingly, the facts asserted by the moving defendants in their supporting affirmations will be accepted as true for purposes of their motions.

II. Background

Dixon was a candidate for Albany County legislator for the Fourth District in 2007 and sought the nominations of the Democratic and Independence Parties in the September primary. Compl. (Docket No. 1) at ¶ 3. Plaintiff Justus4us is a community organization which, inter alia, encourages eligible citizens in Albany to register and to vote. Id. at ¶ 4. Dixon serves as its President. Id. at ¶ 3. Plaintiffs pro se Louis W. Brown ("Brown"), Frances Poole ("Poole", and Cleo B. Carter ("Carter") all reside in the Fourth District and are registered to vote in the Democratic Party. Compl. at ¶¶ 5, 7, 8.FN2 Defendants Virginia Maffia Tobler and Jaqueline E. Jones were candidates for the Democratic nomination in the Fourth District with Dixon and the remaining defendants allegedly performed various functions during the September 2007 primary. Id. at ¶¶ 9-20. Dixon lost the primary for the Democratic nomination to Maffia Tobler and for the Independence Party to another individual. Id. at ¶¶ 130-31. This action followed.

FN2. Shannon Thomas is identified in the body of the complaint as a plaintiff residing in the Fourth District and registered to vote in the Independence Party. Compl. at ¶ 6. However, Thomas is not listed as a plaintiff in the caption of the complaint, did not sign the complaint, and, therefore, has never been deemed a party to this action. See Docket No. 45.

*2 Plaintiffs filed their complaint on May 12, 2008 alleging various constitutional defects in the primary election process in violation of the Civil Rights Act of 1965, 42 U.S.C. § 1981 et seq. Compl. On September 15, 2008, a conference was held with the Court pursuant to Fed.R.Civ.P. 16, a schedule was set for completion of the case, and a Uniform Pretrial Scheduling Order incorporating that schedule was entered. Docket No. 47. Discovery commenced and on January 26, 2009, the Board of Elections defendants served all individual plaintiffs with notices to take their oral depositions on February 24, 2009. Neff Affirm. (Docket No. 86-1) at ¶¶ 5-7 & Ex. D. The depositions were confirmed by a letter to all parties dated February 20, 2009. Id. at ¶ 8 & Ex. E. No plaintiff appeared for the depositions and no plaintiff contacted defendants prior thereto. Id. at ¶ 9.

At defendants' request, a conference was held with the Court on March 12, 2009 following which an order was entered compelling plaintiffs Brown, Poole, and Carter to appear for oral deposition on June 1, 2009 at the federal courthouse in Albany. Docket No. 82. The order explicitly advised these plaintiffs that if they again failed to appear for the depositions, the Court could impose sanctions upon them and that the sanctions could include dismissal of their claims. Id. The order was mailed to all pro se plaintiffs. Docket entry dated 3/13/09. Defense counsel appeared at the scheduled place and time for the depositions with a retained stenographer, but plaintiffs Brown, Poole, and Carter all failed to appear and without prior notice to any defendant. Neff Affirm. at ¶¶ 14-16, 19 & Ex. 1; Zegarelli Affirm. (Docket No. 106-2) at ¶ 15.

III. Discussion

Defendants seek sanctions, including dismissal of the complaint, against all plaintiffs pursuant to Fed.R.Civ.P. 37(b) and (d). Rule 37(b) authorizes a range of sanctions against any party who is found to have disobeyed a court order compelling discovery, including an order to appear for a deposition. Rule 37(d) authorizes the same range of sanctions against a party for failing to attend his or her deposition. The range of sanction authorized by both provisions includes deeming facts admitted, precluding evidence, striking pleadings, and dismissing the action. Fed.R.Civ.P. 37(b)(2)(A). It also includes the imposition of costs, including attorney's fees, incurred by the moving party. Fed.R.Civ.P. 37(b)(2)(C). Such costs "must" be imposed against the offending party "unless the failure was substantially justified or other circumstances make an award of expenses unjust." Id.

A. Brown, Poole, and Carter

Brown, Poole, and Carter each twice failed to appear for their depositions. The second failure to attend of each occurred after an order was entered which (1) compelled each of these defendants to appear for his or her deposition at the date, time, and place specified in the order, and (2) warned the defendants as follows:

*3 EACH PLAINTIFF SHALL FURTHER TAKE NOTICE that if he or she fails to serve responses to the County defendants' outstanding interrogatories or document demands or fails to appear for his or her oral deposition as directed in this order, sanctions will be imposed as allowed by Fed.R.Civ.P. 37(b) and (d). These sanctions may include, among others, dismissal of this action as to any such plaintiff. If an action is dismissed against any plaintiff, there will be no trial or other further proceedings, judgment in this case will be entered in favor of the defendants, and that plaintiff will have lost the right to bring the claims asserted in this action against these defendants in any future action.

Docket No. 82 at 2-3 (emphasis in original). The order was mailed to each plaintiff at the addresses they provided and none were returned undelivered. Docket entry dated 3/13/09.

Brown, Poole, and Carter have offered no reason for their failure twice to appear for their depositions and the failures leave each in contempt of this Court's order. Further, defendants have been prejudiced by these plaintiffs' failures both by being denied needed discover from three of the parties asserting claims against them and by the incurring of costs for the time of the attorneys in appearing for the depositions and preparing the present motions. The imposition of sanctions are, therefore, appropriate. The only reasonable sanction available appears to be dismissal of these plaintiffs' claims. The lesser sanctions of admissions and preclusion of evidence would lead effectively to the same result. Such admissions and preclusions would leave defendants able to obtain judgment as a matter of law given these plaintiffs' complete failure to provide any discovery.FN3 Accordingly, it is recommended as a sanction for the failures of Brown, Poole, and Carter that each be dismissed with prejudice as a plaintiff in this action pursuant to Rule 37(b)(2)(A)(5).

FN3. All three plaintiffs also failed to respond to interrogatories despite being compelled to do so. See Docket No. 82 at 2; Zegarelli Affirm. at ¶¶ 13, 14.

As to the imposition of costs against these plaintiffs, the awarding of such costs is mandatory under Rule 37 unless the failure was substantially justified or other circumstances would render an award unjust. No facts appear which might justify any plaintiffs failure here. The only circumstance which appears which might make an award unjust is plaintiffs' pro se status. However, plaintiffs paid the full filing fee, have never sought in forma pauperis status, and have never otherwise claimed or demonstrated indigence. See Docket No. 1 (noting the payment of the full filing fee). In the absence of the demonstration of facts rising to the level of injustice, such an award must be made here. See Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir.1994) (per curiam) ("The severe sanction of 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."); Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir.1990) ("all litigants, including pro ses, have an obligation to comply with court orders') (quoting McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir.1988)).

*4 Only counsel for the Board of Elections defendants and Willingham have submitted affirmations as to the costs they incurred as a result of these plaintiffs' failures. These defendants seek an award for stenographic costs, attorney time preparing for and attending the depositions, preparing the present motions, and photocopying and mailing costs. Neff Affirm. at ¶¶ 20-22; Zegarelli Affirm. at ¶¶ 18-23. All such costs appear to follow directly from the failures of Brown, Poole, and Carter to appear for the depositions and should be allowed.

As to the amounts claimed, the stenographic costs were borne by the Board of Elections defendants in the amount of $150. Neff Affirm. at ¶ 18. The Board of Elections defendants further seek an award for 23.7 hours of attorney time at the hourly rate of $95 for a total of $2, 251.50. Neff Affirm., Ex. J (Docket No. 86-11) at 2. The hourly rate is well within the range of reasonableness in this district. See, e.g., Picinich v. United Parcel Serv., No., 2008 WL 1766746, at *2 (N.D.N.Y. Apr.14, 2008) (noting that hourly rates up to $210 had been found reasonable in this district). However, the total hours claimed appear excessive in several respects, including the amount of time required to prepare for the depositions of Brown, Poole, and Carter, and the amount of time required to draft pleadings. Therefore, the total amount of time claimed should be reduced from 23.7 hours to fourteen hours. Multiplying the fourteen hours times the hourly rate of $95 yields an amount of $1, 330 in attorneys fees which should be awarded to the Board of Elections defendants. Adding the stenographic costs, the Board of Elections defendants are entitled to total costs of $1, 480.

Willingham seeks an award of costs for attorney's totaling $1, 710 for nine hours at an hourly rate of $190.00. Zegarelli Affirm. at ¶ 19 & Ex. I (Docket No. 106-11). Willingham also seeks an award of $60 for costs incurred in photocopying and mailing her motion papers to the pro se plaintiffs. Zegarelli Affirm. at ¶ 22 & nn. 4, 5. As to the hourly rate, Willingham's counsel asserts that "[m]y average billing rate for this time period was $190.00 per hour." Id. at ¶ 21. However, her counsel fails to state the rate she charged Willing ham here or, indeed, if any fee was charged at all. Even if Willingham's counsel represents her without fee in this case, however, counsel is entitled to an award of fees at a reasonable rate for the time wasted when Brown, Poole, and Carter failed to attend their depositions and in making this motion. In the absence of evidence from Willingham as to the hourly rate actually charged here, the rate charged by the Board of Elections defendants for the same services will be utilized as a guidepost for the reasonable rate to which Willingham's counsel is entitled. Thus, an hourly rate of $95 will be applied here as well. The hours claimed appear excessive as to legal research, where Willingham enjoyed the benefit of access to the memorandum of law filed earlier on the same issues by the Board of Elections defendant, and the preparation of pleadings and should be reduced to six hours. The photocopying and mailing costs appear reasonable and should be allowed as claimed. Thus, an award should be made to Willingham for attorney's fees of $570 (six hours at a rate of $95 per hour) plus photocopying and mailing costs of $60 for a total of $630.

B. Dixon and Justus4us

*5 Dixon, individually and as President of Justus4us, appeared for his deposition and was deposed by defendants. The only basis asserted for imposing sanctions against him is Willingham's contention that he bears partial responsibility for the failure of Brown, Poole, and Carter to attend their depositions because, as lead plaintiff, FN4 it was Dixon's responsibility to advise the other plaintiffs of their need to appear for the depositions and insure their attendance. See Willingham Mem. of Law (Docket No. 106-1) at 4. First, defendants have made no showing that Dixon failed to communicate with Brown, Poole, or Carter concerning the depositions. Second, Brown, Poole, and Carter were each notified of the dates, times and place of their depositions by the Court order which was mailed to them and not returned undelivered. Accordingly, no sufficient basis has been shown for imposing sanctions against either Dixon or Justus4us.

FN4. In an order filed September 15, 2008, Dixon was "designated Lead Plaintiff and shall serve as the representative and contact person on behalf of the plaintiffs...." Docket No. 48 at 1.

C. Allocation Among Plaintiffs

The depositions of Brown, Poole, and Carter were scheduled for the same date, time, and place and were to occur in turn. The costs incurred by the Board of Elections defendants and Willingham thus resulted equally from the failures of Brown, Poole, and Carter to attend their depositions. The costs should thus be shared equally by the three plaintiffs and none should be responsible for more than his or her share. Accordingly, the costs imposed should be allocated equally among the three plaintiffs. Brown, Poole, and Carter should each be ordered to pay (1) $493.33 to the Board of Elections defendants and (2) $210 to Willingham.

IV. Conclusion

For the reasons stated above, it is hereby

RECOMMENDED that the motions of the Board of Elections defendants and Willingham for sanctions against plaintiffs for the failure of Brown, Poole, and Carter to attend their depositions (Docket Nos. 86, 106) be:

1. GRANTED as to Brown, Poole, and Carter as follows:

A. Brown, Poole, and Carter be DISMISSED with prejudice from this action as plaintiffs;

B. Brown be ordered to pay the Board of Elections defendants at total of $493.33 and Willingham a total of $210; and

C. Poole be ordered to pay the Board of Elections defendants at total of $493.33 and Willingham a total of $210; and

D. Carter be ordered to pay the Board of Elections defendants at total of $493.33 and Willingham a total of $210; and

2. DENIED as to Dixon and Justus4us in all respects.FN5

FN5. A conference will be ordered to establish a schedule for completion of the case after the district court has issued a final decision on these recommendations.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Clifton M. Dixon, Albany, NY, pro se.

Office of Samuel N. lroegbu, Samuel N. lroegbu, Esq., of Counsel, Albany, NY, for Plaintiff Justus4us.

Louis W. Brown, Albany, NY, pro se.

Frances Poole, Albany, NY, pro se.

Cleo B. Carter, Albany, NY, pro se.

Napierski, Vandenburgh & Napierski L.L.P., Thomas J. O'connor, Esq., Asa S. Neff, Esq., of Counsel, Albany, NY, for Board of Elections defendants.

Office of William J. Conboy, II, William J. Conboy, II, Esq., of Counsel, Albany, NY, for Defendant Maffia Tobler.

Crane, Parente & Cherubin, Clemente J. Parente, Esq., of Counsel, Albany, NY, for Defendant Democratic Committee.

Feeney, Centi & Mackey, L. Michael Mackey, Esq., of Counsel, Albany, NY, for Defendant Jones.

DerOhannesian & DerOhannesian, Paul Derohannesian, II, Esq., Jennifer C. Zegarelli, Esq., of Counsel, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.