United States District Court, S.D. New York
AMY R. GURVEY, Plaintiff,
COWAN, LIEBOWITZ & LATHMAN, P.C., et al., Defendants.
OPINION AND ORDER
HENRY PITMAN, Magistrate Judge.
I write to resolve two outstanding motions related to my July 15, 2013 Opinion and Order, Gurvey v. Cowan, Liebowitz Lathman, P.C., 06 Civ. 1202 (LGS)(HBP), 2013 WL 3718071 (S.D.N.Y.. July 15, 2013) (Pitman, M.J.) ("July Order"). By notice of motion dated July 30, 2013, plaintiff moves for reconsideration of both my July Order and an Order issued by the Honorable Barbara Jones, United States District Judge, now retired, on April 5, 2012 (Notice of Motion for Reconsideration, dated July 30, 2013, (Docket Item 182) ("Pl. Notice of Mot.") at 2). By notice of motion, dated March 27, 2013, defendants move for an Order pursuant to Rule 37 of the Federal Rules of Civil Procedure (1) precluding plaintiff from offering at trial or in connection with any motion any evidence that she has not already produced, (2) striking the Third Amended Complaint, or in the alternative, precluding plaintiff from serving additional discovery requests and (3) awarding defendants the costs and attorney's fees they incurred in filing the instant motion (Memorandum of Law in Support of Defendants' Motion to Sanction Plaintiff, dated Mar. 27, 2013, (Docket Item 147) ("Defs.' Mem.") at 9-10). For the reasons set forth below, plaintiff's motion for reconsideration is denied. Defendants' motion for sanctions is granted to the extent that it seeks the attorney's fees and costs defendants incurred in making the motion and forfeiture of plaintiff's right to seek enforcement of her discovery requests that were the subject of my Order dated January 14, 2013. It is denied to the extent it seeks other relief.
The facts underlying this action and the instant applications have been set forth in my July Order, familiarity with which is assumed. Gurvey v. Cowan, Liebowitz & Lathman, P.C., supra, 2013 WL 3718071 at *1-*6. For the present purposes it is sufficient to note that plaintiff, proceeding pro se, is a former employee of the law firm Cowan, Liebowitz & Lathman, P.C. ("CLL"). Plaintiff's only remaining claims allege attorney malpractice and breach of fiduciary duty in connection with a patent application that CLL was allegedly prosecuting on her behalf.
In my July Order, I resolved several motions. Relevant to the pending applications, I denied plaintiff's motion for leave to file a Fifth Amended Complaint and reserved decision on defendants' motion for sanctions.
With respect to plaintiff's motion for leave to serve a Fifth Amended Complaint, I concluded that plaintiff's motion should be denied because the proposed amendment was futile. I also denied plaintiff's motion on grounds of bad faith, undue delay and prejudice to defendants. Gurvey v. Cowan, Liebowitz Lathman, P.C., supra, 2013 WL 3718071 at *10-*11.
With respect to defendants' motion for sanctions, I concluded that defendants had made a prima facie showing that plaintiff had engaged in conduct that was sanctionable pursuant to Fed.R.Civ.P. 37(c)(1) and (b)(2).
First, plaintiff's disclosures made pursuant to Rule 26(a)(1) are deficient in numerous respects. Rather than adhering to the requirements of Rule 26(a)(1), plaintiff's "disclosures" consist of lengthy arguments about the merits of her case interspersed with broad document demands (see generally Docket Item 125). Instead of identifying the documents within her possession, custody, or control on which she will rely, plaintiff provides a list of 53 "documents or categories of documents in hard and electronic format [that] may be used by Plaintiff in support of her claims or defenses and are requested in discovery, " many of which have tenuous or no relevance to the claims in this litigation (Docket Item 125 at 20-24). With respect to the identification of witnesses, plaintiff identifies more than thirty individuals and entities, a number of whom have no logical connection to plaintiff's claims, including "Solicitor General, European Patent Office, " and "Major League Baseball/MLB Advanced Media" (Docket Calculations, " plaintiff submitted only the following: "Plaintiff's damages are to be calculated public documents [sic] and if that is not sufficient, by experts" (Docket Item 125 at 24). These disclosures are plainly defective, and it appears that plaintiff has made no attempt to supplement or amend them, despite being informed of their deficiencies by defendants (see Ex. H to Declaration of J. Richard Supple, Jr. in Support of Motion for Discovery Sanctions, filed Mar. 27, 2013 ("Supple Decl.")(Docket Item 146)).
Plaintiff has also ignored my Orders of October 10, 2012 and January 14, 2013, and in doing so, violated Fed.R.Civ.P. 37(b)(2). My October 10, explicitly limited discovery to plaintiff's malpractice and breach-of-fiduciary duty claims. However, as evidenced by, among other things, the document demands contained within plaintiff's defective Rule 26(a)(1) disclosures and plaintiff's first set of document demands and interrogatories (Ex. I to Supple Decl.), plaintiff has sought discovery of extraordinary breadth that is far beyond the scope of the two claims remanded by the Court of Appeals. In addition, to this day, plaintiff has disregarded my Order of January 14, 2013 by failing to explain in writing how each of her discovery requests to CLL is relevant to the remaining claims. Plaintiff has offered no explanation for her cavalier attitude with respect to compliance with these Orders.
Gurvey v. Cowan, Liebowitz & Lathman, P.C., supra, 2013 WL 3718071 at *14. However, because plaintiff had not responded to defendants' motion for sanctions, I gave plaintiff an "opportunity to attempt to explain her conduct and/or provide mitigating evidence on her behalf." Gurvey v. Cowan, Liebowitz & Lathman, P.C., supra, 2013 WL 3718071 at *15.
On July 30, 2013, plaintiff moved for reconsideration of my July Order to the extent that it denied her motion for leave to serve a Fifth Amended Complaint and "that portion of the District Court's order directing that [CLL] answer Plaintiff's [Third Amended Complaint]" (Pl. Notice of Mot. at 2). In support of her motion, plaintiff submitted a document entitled "Plaintiff's Declaration and Legal Memorandum in Support of Motion for Reconsideration, " to which she appended the appellate brief she submitted to the Ninth Circuit Court of Appeals in a related case (Docket Item 183). On August 5th, plaintiff submitted a document entitled "Plaintiff's Declaration and Legal Memorandum in Further Support of Reconsideration and Excusable Delay in Discovery, " which appears to be plaintiff's response to my Order directing her to show cause why I should not impose sanctions ((Docket Item 184) ("Pl. Aug. 5 Mem."). On August 21, 2013, defendants submitted their response (Declaration of Richard Supple, Jr. in Response to Plaintiff Amy R. Gurvey's Notice of Motion for Reconsideration and "Excusable Delay in Discovery, " dated Aug. 21, 2013, (Docket Item 187)).
The parties have submitted additional correspondence related to the pending motions. On January 3, 2013, plaintiff submitted what is ostensibly a reply in further support of her motion for reconsideration my July Order ("Plaintiff Pro Se's Reply to Motion-in-Chief for Reconsideration and to Vacate Magistrate's July, 2013 Order (Docket Item 176), " dated Jan. 3, 2014, (Docket Item 197)("Pl. Reply")). On January 13, 2014, defendants submitted a letter requesting that I disregard plaintiff's Reply and that plaintiff be enjoined from making new motions without the Court's permission (Letter of Richard Supple, Jr., Esq., to the undersigned, dated Jan. 13, 2014, at 2).
A. Motion for Reconsideration
Motions for reconsideration are appropriate only under limited circumstances. As explained by the late Honorable Peter K. Leisure, United States District Judge, in Davidson v. ...