United States District Court, N.D. New York
MARGARET ZAVALIDROGA, Pro Se, Blossvale, New York, for Plaintiffs.
TOMAS ZAVALIDROGA, Pro Se, General Delivery, Old Forge, New York.
GORMAN, WASZKIEWICZ LAW FIRM, BARTLE J. GORMAN, ESQ., Utica, New York, for the County Defendants.
OFFICE OF A. SHELDON GOULD, A. SHELDON GOULD, ESQ., Syracuse, New York, for Defendant Kelley.
NAPIERSKI, VANDENBURGH LAW FIRM SHAWN. F. BROUSSEAU, ESQ., SHAWN T. NASH, ESQ., Albany, New York, for Defendants Faxton-St, LUKES HOSPITAL & DR. CATNEY.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, Magistrate Judge.
Plaintiffs Margaret Zavalidroga and her son, Tomas Zavalidroga, both of whom are proceeding pro se, have commenced this action, pursuant to 42 U.S.C. § 1983, asserting civil rights claims against various defendants, including Lee Broniszewski, County of Oneida, Jeffrey Kelley, Faxton-St. Lukes Hospital, and Dr. Kevin Catney. During the course of pretrial discovery in the action, plaintiffs failed to appear for deposition on three occasions, including one court-ordered deposition. Based upon those failures, defendants now seek dismissal of plaintiffs' complaint pursuant to Rules 41 and 37 of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that defendants' motions be granted.
Plaintiffs initiated this action on March 11, 2011, and subsequently filed an amended complaint in the case on May 24, 2011. Dkt. Nos. 1, 8. Following the joinder of issue, the court conducted an in-person pretrial conference on May 16, 2013, pursuant to Rule 16 of the Federal Rules of Civil Procedure. Text Minute Entry Dated May 16, 2013. During that pretrial conference, which was attended by both of the plaintiffs, the court carefully explained the requirements for litigation, including the parties' obligations associated with pretrial discovery. Id. After the conference was concluded a discovery order was issued reinforcing the court's instructions concerning discovery. Dkt. No. 102. That order specifically informed plaintiffs that, "[i]n addition to document demands and interrogatories, a party may also seek to take the deposition upon oral examination of another party." Id. at 5. In addition, also on that same date, the court issued a uniform pretrial scheduling order, in which, inter alia, a discovery deadline of December 31, 2013 was established. Dkt. No. 101. Both of those orders were mailed to plaintiffs at the address provided by them and reflected on the court's docket sheet. Dkt. Nos. 101, 102. There is no indication in the record that the orders were returned as undeliverable. See generally Docket Sheet.
On November 21, 2013, defendants Lee Broniszewski, Norman Peek, and County of Oneida (the "Oneida County defendants") served the plaintiffs with an amended notice to take their depositions on December 3, 2013, at 11:00 a.m. at the Oneida County Supreme Court Law Library in Utica, New York. Dkt. No. 120-1 at 3; Dkt No. 120-9. That notice was sent by mail to the plaintiffs at the address provided by them and reflected in the court's records. Id. Counsel for the Oneida County defendants and Shawn F. Brousseau, Esq., an attorney representing defendants Faxton-St. Luke's and Dr. Catney (the "Faxton-St. Luke's defendants"), appeared for the scheduled deposition, accompanied by a court reporter. Dkt. No. 133-2 at 5; Dkt. No. 118-1 at 2; Dkt. No. 120-1 at 3-4. Plaintiffs, however, failed to appear for the scheduled deposition as required in the notice. Id.
On December 4, 2013, the court received a request from the pro se plaintiffs for a delay in this action and an extension of the discovery deadline. Dkt. No. 114. In response, a letter was received from counsel for the Oneida County defendants, Bartle J. Gorman, Esq., advising that his clients were joining in the request for the extension of deadlines and informing the court that plaintiffs had failed to appear for a scheduled deposition on December 3, 2013. Dkt. No. 115. As a result of those submissions, a text order was issued on December 16, 2013, extending the deadline for completion of discovery in the action to February 28, 2014. Dkt. No. 117. In that text order, I stated the following:
In the event that plaintiffs fail to appear at a rescheduled deposition, after receiving proper notice, permission is hereby granted to the defendants to bring a motion seeking appropriate relief pursuant to Rule 37(d) of the Federal Rules of Civil Procedure.
On January 8, 2014, the Oneida County defendants served a second notice of deposition upon the plaintiffs, scheduling their depositions to be conducted on January 27, 2014, again to be held at the Oneida County Supreme Court Law Library. Dkt. No. 133-2 at 5; Dkt. Nos. 118-1 at 3; 120-1 at 4; see Dkt. No. 120-10. Once again, while Attorneys Gorman and Brousseau appeared for the scheduled deposition, together with a court ...