United States District Court, N.D. New York
August 14, 2014
WILFREDO ROSARIO, Plaintiff,
CAPTAIN ANSON, Summit Shock Incarceration Facility, JOHN DOE #1, Facility Nurse, Summit Shock Incarceration Facility Defendants.
ROSARIO Plaintiff Pro Se Orlando, Florida
COLLEEN D. GALLIGAN, ESQ., Assistant Attorney General., HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Attorney for Defendants, Albany, New York.
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff pro see Wilfredo Rosario ("Rosario"), a former inmate in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, two DOCCS employees, violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 2). Presently pending is Rosario's letter motion seeking to be deposed either telephonically or by video-conference (Dkt. No. 46), defendants' motion for sanctions pursuant to Fed.R.Civ.P. 37(b)(2)(C) (Dkt. No. 47), and defendants' motion to dismiss pursuant to Fed.R.Civ.P. 41(b). Dkt. No. 47. Rosario does not oppose defendants' motions. Defendants do not consent to deposition by alternative means. Dkt. No. 47 at 5. For the reasons that follow, it is ordered that Rosario's letter motion be granted and defendants' motion for sanctions be denied. It is further recommended that defendants' motion to dismiss be denied.
On September 13, 2011, Rosario commenced this action alleging that defendants violated his Eighth Amendment rights by exhibiting deliberate indifference to his medical needs. Compl. (Dkt. No. 2). On December 16, 2013, the Court issued a Mandatory Pre-Trial Discovery and Scheduling Order ("scheduling order") granting defendants leave to take Rosario's deposition by providing Rosario with a notice of deposition. Dkt. No. 41 at 3-4. The scheduling order notified Rosario that his "failure... to attend, be sworn, and answer appropriate questions may result in sanctions, including dismissal of the action pursuant to Fed.R.Civ.P. 37." Id. at 4. On April 24, 2014, defendants served Rosario with document demands and a notice of deposition, which scheduled Rosario's deposition for May 29, 2014, at 10:00 a.m., at the Office of the Attorney General in Albany, New York. Galligan Aff. (Dkt. No. 47-1) ¶ 7; Dkt. No. 47-1 at 7-9. The notice of deposition was mailed to Rosario at 10947 Savannah Wood Court, Orlando, Florida 32832.
On or about April 30, 2014, Rosario called counsel for defendants, an Assistant Attorney General ("AAG"), to ask that his deposition be conducted by telephone or video-conference. Galligan Aff. ¶ 8. The AAG did not consent to conducting the deposition using alternative means. Id . Shortly thereafter, on May 5, 2014, Rosario filed a letter motion with the Court, seeking to appear for the deposition via telephone or video conference because a lack of funds and a leg injury would make it difficult for him to travel from Florida to New York. Dkt. No. 46.
On May 29, 2014, the AAG and a court reporter were prepared to take Rosario's deposition. Galligan Aff. ¶ 9; Dkt. No. 47-1 at 13-15. Rosario did not appear for the deposition and, aside from the previous discussion on taking the deposition by alternative means, did not provide the AAG with notice of intent to not appear at the deposition. Dkt. No. 47-1 at 13-15. The Office of the Attorney General incurred $75.00 in cost for the court reporter and transcript. Galligan Aff. ¶ 10; Dkt. No. 47-1 at 18.
Rosario seeks to be deposed by telephone or video conference. Defendants seek dismissal of Rosario's action for failure to prosecute as a result of his failure to attend the scheduled deposition. In the alternative, defendants request that Rosario be compelled to attend a rescheduled deposition and reimburse defendants for the costs of the court reporter and transcript.
A. Deposition by Alternative Means
As a general matter, although a plaintiff is deposed in the forum where the action was brought, there is "no absolute rule as to the location of the deposition of a nonresident plaintiff." Stephens v. 1199 SEIU, No. CV 07-0596(JFB)(AKT), 2011 WL 2940490, at *1 (E.D.N.Y. July 19, 2011) (citing Normande v. Grippo, No. 01 CIV 7441, 2002 WL 59427, at *1 (S.D.N.Y. Jan. 16, 2002)). Indeed, Federal Rule 30(b)(4) states that "[t]he parties may stipulate-or the court may on motion order-that a deposition be taken by telephone or other remote means." FED. R. CIV. P. 30(b)(4). Courts have ordered telephonic depositions in cases where the plaintiff is physically or financially unable to come to the forum. Stephens, 2011 WL 2940490, at *1 (citing inter alia Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 387 (S.D.N.Y. 2011)). However, other courts have found that a hardship showing is not necessary to permit telephonic depositions from being taken. Id . (citing Zito v. Leasecomm Corp., 233 F.R.D. 395, 397-98 (S.D.N.Y. 2006) and Advani Enters., Inc. v. Underwriters at Lloyds, No. 95 Civ. 4864, 2000 WL 1568255, at *2 (S.D.N.Y. 2000)).
In this case, Rosario contends that he should be deposed either by telephone or video instead of in-person because he lacks the financial means to travel from Florida to New York and suffers from a leg injury. Although Rosario does not introduce any evidentiary support for his claims, given Rosario's pro se status, his representation of claims in writing to the Court, as well as defendants' silence as to any prejudice that they would suffer from deposition by alternative means, the Court finds that the circumstances here support permitting Rosario's deposition to be taken by telephone.
The realities of litigation requires the Court to further discuss this matter at hand. It is unclear to the Court whether Rosario intends his deposition to serve as a trial-preservation deposition if he remains unable to return to New York for the trial. Courts that have ordered telephonic depositions have also built in safeguards for trial. For example, one court required the plaintiff to be present at the trial. Normande, 2002 WL 59427, at *2. Another court required the plaintiff to arrive in the forum forty-eight hours before commencement of trial to be deposed. Anguile v. Gerhart, No. Civ. 93-934, 1993 WL 414665, at *3 (D.N.J. 1993). Accordingly, were Rosario's intention to treat his deposition as a trial-preservation deposition and offer it in place of live testimony, the Court directs that the deposition be conducted by video-conference and be recorded. See Stephens, 2011 WL 2940490, at *3. Even so, the decision whether to allow the video-taped deposition be used in lieu of live testimony at trial remains with Chief Judge Gary L. Sharpe, the District Judge assigned to this action.
Furthermore, Rosario bears the cost of conducting the deposition by telephone or video-conference. Stephens, 2011 WL 2940490, at *3 (citations omitted). It is also Rosario's obligation to ensure that at the time of the deposition, an individual authorized to administer oaths in Florida is present to administer the oath to him. Normande, 2002 WL 59427, at *2 ("Plaintiff will be required to bear the expense of the telephone deposition and must also make arrangements to be sworn by an individual who is authorized to administer oaths in Brazil."). While the cost of taking Rosario's deposition in this manner could still be high, Rosario cannot dispute that he has an obligation to provide discovery and prosecute the action as the plaintiff in his case. Anguile, 1993 WL 414665, at *3 ("Having commenced this action, plaintiff cannot dispute that she has an obligation to provide discovery in the form of a deposition. Nor can plaintiff visit the expense of the deposition upon defendant, for she is the one who asserts the claims. Thus, the cost of the telephonic deposition shall be the responsibility of plaintiff."). Lastly, if defendants intend to introduce exhibits at the deposition, then defendants' counsel is responsible for making arrangements to have such exhibits available at the location and time of the deposition in Florida. Stephens, 2011 WL 2940490, at *3.
Accordingly, Rosario's letter motion is granted. Because the discovery deadline expired on June 6, 2014, it is hereby extended to October 10, 2014.
B. Motion for Sanctions
Pursuant to the Federal Rules of Civil Procedure, sanctions may be awarded where parties fail to comply with court orders or fail to attend their own depositions. FED. R. CIV. P. 37(b) & (d); N.D.N.Y.L.R. 1.1(d) ("Failure of an attorney or of a party to comply with... Orders of the court, or the Federal Rules of Civil... Procedure shall be a ground for imposition of sanctions."). Such sanctions can include the payment of reasonable expenses caused by the failure. FED. R. CIV. P. 37 (b)(2)(C).
A district court has broad discretion to impose sanctions. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (citation omitted). In deciding an appropriate sanction, "the court may consider the full record... [specifically] the willfulness of the non-compliant party; the reasons for the noncompliance; the efficacy of lesser sanctions; the duration of the non-compliance; and whether the party has been warned of the consequences of non-compliance." Broadcast Music, Inc. v. Metro Lounge & Cafe LLC, No. 10-CV-1149 (NAM/ATB), 2012 WL 4107807, at *2 (N.D.N.Y. July 18, 2012) (citations omitted).
Here, a review of the record shows that sanctions are not warranted at this time. While Rosario has been warned of the consequences of non-compliance with the scheduling order and the date of the scheduled deposition, Rosario filed the letter motion seeking to be deposed by telephone or video-conference prior to the scheduled deposition on May 5, 2014. Although it could be said that Rosario intentionally failed to appear for his deposition on May 29, 2014, Rosario presented reasons for his noncompliance, namely that he lacks the economic means to travel to New York as well as a leg injury that he sustained. Other than an indication in the motion to dismiss filed June 18, 2014 that they do not consent to deposition by alternative means, defendants never directly responded to Rosario's letter motion. Accordingly, given Rosario's pro se status, as well as a review of the relevant factors, sanctioning Rosario in this instance is not warranted. See Broadcast Music, Inc., 2012 WL 4107807, at *2.
Accordingly, defendants' motion for sanctions is denied.
C. Failure to Prosecute
Federal Rule of Civil Procedure 41(b) provides that a court may dismiss an action "[i]f the plaintiff fails to prosecute or comply with [the Federal Rules of Civil Procedure] or a court order...." FED. R. CIV. P. 41(b); see Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962); MTV Networks v. Lane, 998 F.Supp. 390, 393 (S.D.N.Y. 1998); see also N.D.N.Y.L.R. 41.2(b). Since a Rule 41(b) dismissal is a "harsh remedy... [it] is appropriate in extreme situations." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (citations omitted). Furthermore, courts should be "especially hesitant" to dismiss an action of a pro se plaintiff for "procedural deficiencies." Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (internal citations omitted); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). To determine whether dismissal for failure to prosecute is appropriate, courts should consider:
(1) the duration of plaintiff's failure to comply with the court order, >(2) whether the plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendant is likely to be prejudiced by further delay..., (4) balancing of the court's interest in managing its docket with the 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.
Lucas, 84 F.3d at 535; see also Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (citations omitted).
In this case, defendants contend that Rosario's failure to respond to their prior motion to dismiss, provide disclosures, and attend the scheduled deposition, warrants a dismissal based on failure to prosecute. However, a review of the procedural history shows that dismissal of the action at this time is not warranted. While the scheduling order had notified Rosario that failure to comply with the scheduling order could result in dismissal of his action, Rosario only failed to appear for his deposition once. Further, prior to the date of the scheduled deposition, Rosario had attempted to obtain consent from the AAG to a deposition by an alternative means. Rosario also advised the Court of his inability to appear in person for his deposition and proffered two concrete reasons for his inability to return to New York to be deposed. With respect to prejudice, defendants proffered no argument for this factor and the court finds no indication of a possibility of prejudice within the record. Furthermore, given the Court's ruling supra with respect to Rosario's letter motion, defendants will be able to obtain a deposition at Rosario's expense.
In balancing the Court's interest in managing its congested docket with Rosario's interest in receiving a fair chance to be heard, the Court can only conclude that Rosario, a pro se litigant, be given another chance to comply with the scheduling order and prosecute this matter. Accordingly, it is recommended that defendants' motion to dismiss be denied.
For the reasons stated above, it is hereby:
1) ORDERED that Rosario's letter motion (Dkt. No. 46) be GRANTED; and it is further
2) ORDERED that the discovery deadline be extended to October 10, 2014; and it is further
3) ORDERED that defendants' motion for sanctions (Dkt. No. 47) be DENIED; and it is further
4) RECOMMENDED that defendants' motion to dismiss (Dkt. No. 47) be DENIED. 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 FOURTEEN 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).
Daniel F. Devita, Daniel F. Devita, Esq., Garden City, NY, for Plaintiff.
Sara Dombroff Newman, David M. Slutsky, Sara D. Newman, Levy Ratner P.C., New York, NY, William Matthew Groh, Clifford Paul Chaiet, Naness, Chaiet & Naness, LLC, Jericho, NY, for Defendants.
A. KATHLEEN TOMLINSON, United States Magistrate Judge.
I. PRELIMINARY STATEMENT
*1 Pending before the Court is Plaintiff Precious Stephens' letter application requesting that the Court permit her deposition to be conducted telephonically, with the costs borne by the Defendants. See DE 71. Both Defendants 1199 SEIU, AFL-CIO ("1199 SEIU") and Bayview Nursing and Rehabilitation Center ("Bayview") oppose the scheduling of any telephonic deposition of the Plaintiff. See DE 70, 72. However, in light of the current circumstances, Defendant Bayview proposes that an audiovisual deposition of the Plaintiff be conducted, at her expense. In any event, Defendant 1199 SEIU requests that should the Court allow a telephonic deposition, Plaintiff should bear the cost of the deposition and not permit its use at trial. For the foregoing reasons, Plaintiff's application is GRANTED in part, to the extent described below.
The Plaintiff was deported back to Jamaica sometime in April 2009. The Court was subsequently informed of this information in September 2009 by Plaintiff's appointed counsel. In light of this information, the Court scheduled a Status Conference for October 22, 2009. At this Conference, Plaintiff's counsel indicated that he sought to have Plaintiff's deposition conducted by telephone. Defendants, however, objected to a telephonic deposition. After counsel for the parties stated that they had case law to support their respective positions, they were directed to provide their written submissions to the Court by November 13, 2009. See DE 69.
Plaintiff argues that both Fed.R.Civ.P. 30(b)(4) and Local Civ. R. 30.3 support having a plaintiff, residing outside the host forum, be deposed by telephone. In conjunction with the procedural rules, Plaintiff maintains that the case law makes it clear that a plaintiff residing abroad is not required to be in the host forum for the deposition if a financial or other hardship can be shown.
Defendants, on the other hand, both argue against a telephonic deposition, asserting that counsel will not have an opportunity to see Plaintiff's demeanor during the deposition and will not be able to see what documents are present while questions are being answered. Further, in light of the statements by Plaintiff's counsel that he intends to treat the examination as a trial preservation deposition for subsequent use at trial, Defendants maintain that a telephonic deposition would not be appropriate.
III. LEGAL STANDARD
Although as a general practice, a Plaintiff is deposed in the forum where the action was brought, there is "no absolute rule as to the location of the deposition of a nonresident plaintiff." Normande v. Grippo, No. 01 CIV 7441, 2002 WL 59427, at *1 (S.D.N.Y. Jan.16, 2002). In fact, Federal Rule 30(b) (4) states that "[t]he parties may stipulate-or the court may on motion order-that a deposition be taken by telephone or other remote means."
Despite providing alternatives to the customary in-person deposition in the forum where the action is pending, Rule 30(b)(4) does not provide the standard by which to evaluate such motions. See Gerasimenko v. Cape Wind Trading Co., 272 F.R.D. 385, 387 (S.D.N.Y.2011). Previous courts in this District have sometimes ordered "that depositions of the plaintiff  be conducted by telephone where the plaintiff is physically or financially unable to come to the forum." Gerasimenko, 272 F.R.D. at 387; see also Clem v. Allied Van Lines Int'l Corp., 102 F.R.D. 938, 940 (S.D.N.Y.1984) (denying plaintiff's request to have his deposition taken by telephone "absent extreme hardship"). However, other courts have found that a showing of hardship is not necessary to allow telephonic depositions to occur. See Zito v. Leasecomm Corp., 233 F.R.D. 395, 397-98 (S.D.N.Y.2006); Advani Enters., Inc. v. Underwriters at Lloyds, No. 95 Civ. 4864, 2000 WL 1568255, at *2 (S.D.N.Y.2000). Nevertheless, the ultimate determination is left to the discretion of the court after a careful balancing of the claims of prejudice and hardship have been weighted. Gerasimenko, 272 F.R.D. at 387; Normande, 2002 WL 59427, at *1.
*2 Plaintiff's reasoning for having her deposition conducted telephonically appears to be twofold: (1) she is destitute; and (2) she has been deported to Jamaica. Although this Court has little doubt that Plaintiff is experiencing real financial difficulty, no evidence has been introduced to support her assertion of being destitute. With nothing more than a verbal representation that Plaintiff is "destitute and cannot afford to bear the costs of her own deposition, " the Court is not in a position to find that her financial situation is a basis to allow her deposition to be conducted by telephone. See Clem, 102 F.R.D. at 940 (finding no extreme hardship where plaintiff had not sufficiently detailed his financial position). However, in light of Plaintiff's deportation, the Court is still faced with the unequivocal fact that Plaintiff is physically unable to come to the forum for her deposition. Although Defendants' concern about not being able to see Plaintiff's demeanor or observe what documents are present and being reviewed are valid factors considered by previous courts, they are not uncommon problems which exist with every telephone deposition. Denying a plaintiff's request based on such an argument would in effect be "tantamount to repealing [Fed. R. Civ P. 30(b)(4).]" Normande, 2002 WL 59427, at *2; accord Advani Enters., Inc. v. Underwriters At Lloyds, No. 95 Civ. 4864, 2000 WL 1568255, at *2 (S.D.N.Y.2000). Therefore, the Court finds that the circumstances of this case support taking the Plaintiff's deposition by telephone.
The realities of this case, however, warrant further discussion. There is no reason to believe that Plaintiff's ability to appear at the time of trial will be any different from the present circumstances. As such, an issue has arisen as to whether Plaintiff's telephonic deposition can also serve as a trial-preservation deposition in the event Plaintiff is unable to return to New York and be present for trial. A telephonic deposition of the Plaintiff, although permissible in and of itself, cannot be used for trial preservation purposes in this case. In those cases where a court permitted telephonic depositions, the courts also built in safeguards for trial. For example, the court in Normande, which allowed the plaintiff to be deposed by telephone, noted the following:
although depositions are frequently read to jurors when witnesses are unavailable, this is not a case where the finder of fact will be deprived of the benefit of observing the deponent's demeanor. Plaintiff will be required to be at the trial of this action.
Normande, 2002 WL 59427, at *2. In addition, in Anguile v. Gerhart, No. Civ. 93-934, 1993 WL 414665 (D.N.J.1993), although the court allowed plaintiff's deposition to be conducted by telephone, the court "required the plaintiff to also be deposed in the forum forty-eight hours before commencement of trial." Anguile, 1993 WL 414665, at *3. In so finding, the Anguile court reasoned that "counsel's ability to see the plaintiff and judge her demeanor is important in this case where the plaintiff is the key witness to most of the relevant facts." Id. The courts which have permitted a deposition to be conducted telephonically when the Plaintiff was out of the jurisdiction, conditioned such authorization on the plaintiff being present at trial. Producing the Plaintiff's testimony at trial solely by playing a telephonic deposition here would prejudice the Defendants.
*3 As such, if it is Plaintiff's intention to treat her upcoming deposition as a trial-preservation deposition and to offer that testimony in place of live testimony, the Court directs that the deposition be conducted by video-conference and that the deposition be taped. Even if that is the case, the decision whether a video-conferenced/videotaped deposition will be permitted at trial in lieu of live testimony will be made by Judge Bianco. Counsel may reasonably seek Judge Bianco's guidance on this issue prior to taking the deposition. In either instance, the cost of conducting the deposition by telephone or by video-conference shall be borne by the Plaintiff. See Normande, 2002 WL 59427, at *2 ("Plaintiff will be required to bear the expense of the telephone deposition and must also make arrangements to be sworn by an individual who is authorized to administer oaths in Brazil."); Anguile, 1993 WL 414665, at *3 ("Having commenced this action, plaintiff cannot dispute that she has an obligation to provide discovery in the form of a deposition. Nor can plaintiff visit the expense of the deposition upon defendant, for she is the one who asserts the claims. Thus, the cost of the telephonic deposition shall be the responsibility of plaintiff."). Further, it is the Plaintiff's obligation to ensure that an individual authorized to administer oaths in Jamaica is present at the time of the deposition to administer the oath to the Plaintiff. If the Defendants intend to introduce documents/exhibits at the deposition, then Defendants' counsel bear the responsibility for making arrangements to have such exhibits available at the location and time of the deposition in Jamaica. Likewise, if Plaintiff's counsel intends to ask questions of the Plaintiff at that time, he must provide proper written notice to Defendants' counsel in advance of the examination.
For the reasons set forth above, the Plaintiff's motion to have her deposition conducted telephonically is hereby GRANTED in part, to the following extent: (A) Plaintiff's deposition can be taken telephonically now, but Plaintiff must appear and be deposed in the Eastern District of New York 48 hours before the trial begins (in this instance, the Defendants are free to video-conference the proximate deposition, at their expense); or (B) if the Plaintiff intends to treat the upcoming deposition as a trial-preservation deposition, than the deposition must be conducted by videoconference and Plaintiff's counsel must take steps to ensure that the deposition is taped. In either instance, the costs for conducting the deposition will be borne by the Plaintiff and it will be the Plaintiff's obligation to ensure that the deposition complies with the requirements of Fed.R.Civ.P. 28(b). Because Plaintiff's counsel is appointed, he may make an application to Judge Bianco seeking the monies necessary to complete Plaintiff's deposition from the Court fund which may cover such expenses.
*4 SO ORDERED.
Marcia Normande, Avenue Robert Kennedy 2865, Ponta Verde, Maceio.
Fred D. Weinstein, Esq., Kurzman Eisenberg Corbin Lever & Goodman, LLP, White Plains.
MEMORANDUM OPINION AND ORDER
KATZ, Magistrate J.
*1 This breach of contract and trademark infringement action was referred to me by the Honorable Jed S. Rakoff, United States District Judge, for general pretrial supervision. Presently before the Court is an application for a protective order by Plaintiff, Marcia Normande, who is proceeding pro se, to have her deposition taken by telephone. Ms. Normande presently resides in Brazil. She contends that the cost of flying to New York from Brazil would exceed $3, 000, and would impose further hardship on her because she would be required to travel with her infant son. Moreover, in view of the distance, travel each way for the deposition would consume an entire day. Ms. Normande offers to appear for a second deposition in person if the telephone deposition proves to be unsatisfactory. Defendants oppose the application, arguing that they would be hampered in their ability to present documents to Plaintiff at her deposition, and would be precluded from observing her demeanor.
Defendants rely upon an often-cited decision emanating out of this Court, Clem v. Allied Lines Intl Corp., 102 F.R.D. 938 (S.D.N.Y.1984), which held that a plaintiff who seeks to have his deposition taken by telephone, while abroad, must demonstrate that holding his deposition in the forum of the action would impose an extreme hardship on him. Id. at 940. In Clem, the court concluded that the plaintiff had not made a sufficient showing that the financial burden of traveling to New York would be prohibitive. Id. Moreover, the plaintiff had plans to be in New York, so that any hardship arising out of travel to New York would be minimal. Id. The Clem case and those that follow its reasoning rest on the presumption that a plaintiff who chooses to bring suit in a particular forum should be prepared to be deposed in that forum. See United States v. Rock Springs Vista Dev., 185 F.R.D. 603, 604 (D.Nev.1999) (requiring plaintiff to appear in forum for deposition in absence of showing of good cause for varying from the normal rule); Michael C. Silberberg, Civil Practice in the Southern District of New York § 17.11 (2d ed. 2000) ('[T]he deposition of a plaintiff usually may be taken in the Southern District of New York notwithstanding the plaintiff's residence outside the district.") In addition, as a general matter, it is less cumbersome and more illuminating to conduct a face-to-face deposition. See Daly v. Delta Airlines, No. 90 Civ. 5700(MEL) (MHD), 1991 WL 33392, at *1 (S.D.N.Y. Mar. 7, 1991).
This Court does not take issue with these general propositions. Nevertheless, as with many other issues in pretrial discovery, there is no absolute rule as to the location of the deposition of a nonresident plaintiff. See 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2112 (2d ed. 1994) ("Since plaintiff has selected the forum, he or she will not be heard to complain about having to appear there for a deposition. But this is at best a general rule, and is not adhered to if plaintiff can show good cause for not being required to come to the district where the action is pending."). Rather, courts must strive to achieve a balance between claims of prejudice and those of hardship, always guided by the proposition that the Federal Rules of Civil Procedure "shall be administered to secure the just, speedy and inexpensive determination of every action." Fed.R.Civ.P. 1.
*2 Thus, courts have permitted nonresident deponents to be deposed where they live, when they have been able to show financial or other hardship. See, e.g., Abdullah v. Sheridan Square Press, Inc., 154 F.R.D. 591, 592-94 (S.D.N.Y.1994) (where plaintiff lived in London, had no choice of forum, had meager financial resources, and would face prejudice with respect to an asylum application in the United Kingdom if he left the country, defendant was required to travel to London for his deposition). Moreover, the Federal Rules of Civil Procedure and a steadily developing body of caselaw recognize that telephone depositions are a presumptively valid means of discovery. See Fed.R.Civ.P. 30(b)(7) ("The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone."); Local Civ. R. 30.3 of the Eastern District of New York ("The motion of a party to take the deposition of an adverse party by telephone will presumptively be granted."); Jahr v. IU Int'l Corp., 109 F.R.D. 429, 431 (M.D.Cal.1986) ("[L]eave to take telephonic depositions should be liberally granted in appropriate cases.... Thus, upon giving a legitimate reason for taking a deposition telephonically, the movant need not further show an extraordinary need for the deposition."); Anguile v. Gerhart, Civ. A. No. 93-934, 1993 WL 414665, at * *2-3 (D.N.J. Oct. 7, 1993) (court permits plaintiff residing abroad to be deposed by telephone, observing that the Clem decision, requiring a showing of extraordinary hardship, "is an anomaly in the line of modern cases dealing with Fed.R.Civ.P. 30(b)(7)"); Rehau, Inc. v. Colortech, Inc., 145 F.R.D. 444, 446 (W.D.Mich.1993) (adopting Jahr rather than Clem approach and permitting officers under control of corporate plaintiff to be deposed abroad by telephone).
Here, Defendants oppose a telephone deposition, based on the conclusory argument that it would hamper their presenting documents to the deponent, and would preclude them from observing Plaintiff's demeanor. (Letter of Fred D. Weinstein, Esq., Dec. 23, 2001.) There is no reason to believe that this case involves a large volume of documents, and premarking the exhibits in advance of the deposition would reduce any difficulty in identifying documents for the deponent. Moreover, "lack of face-to-face questioning is the very essence of a telephone deposition. Acceptance of defendant's argument [about the need to see the deponent's demeanor] would be tantamount to repealing [Fed.R.Civ.P. 30(b)(7)]." Jahr, 109 F.R.D. at 432. Indeed, although depositions are frequently read to jurors when witnesses are unavailable, this is not a case where the finder of fact will be deprived of the benefit of observing the deponent's demeanor. Plaintiff will be required to be at the trial of this action.
In sum, because this is not a complex case, Plaintiff is proceeding pro se, and the time, expense, and inconvenience of coming to New York from Brazil with an infant child would be significant, Plaintiff's application to have her deposition taken by telephone is granted. On this record it is clear that the hardship resulting from a deposition of Plaintiff in New York outweighs any prejudice to Defendants. Plaintiff will be required to bear the expense of the telephone deposition and must also make arrangements to be sworn by an individual who is authorized to administer oaths in Brazil. The Court reserves the right to require Plaintiff to appear in New York for a follow-up deposition upon a showing by Defendants that they were unable to conduct a meaningful deposition by telephone.
*3 So ordered.
MEMORANDUM OPINION AND ORDER
HAIGHT, Senior J.
*1 This admiralty action, commenced by plaintiff assured against defendant underwriters on a marine cargo insurance policy, is before the Court on a motion by the plaintiff for an order permitting telephonic depositions of two non-party witnesses residing in Egypt. The plaintiff, alternatively, seeks the admission of a survey report prepared by one of these witnesses into evidence as an admission by a party opponent. The defendants cross-move for a protective order preventing the telephonic depositions and opposing the admission of the survey report. For reasons stated below, the Court grants the plaintiff's request for telephonic depositions on the express condition that before the depositions may take place the plaintiff submit to the Court a proposal of compliance with Rule 28(b) of the Federal Rules of Civil Procedure. For this reason it is unnecessary for the Court to rule on the question of the survey report's admissibility under the Federal Rules of Evidence 801(d)(2). Defendants' cross-motion for a protective order is denied.
This case comes again before the Court by way of a circuitous path which is detailed in my April 20, 2000 decision denying defendants' summary judgment motion, familiarity with which is assumed. 95 Civ. 4864, 2000 WL 460415 (S.D.N.Y.April 20, 2000). For present purposes it is sufficient to say that plaintiff Advani Enterprises, Inc. ("Advani") purchased a marine cargo insurance policy, evidenced by a cover note, from defendants Underwriters at Lloyds and Syndicate 735 at Lloyds of London ("the Underwriters") to cover a shipment of "Porcelain Dishware in cartons in three full containers door to door" on a voyage "Far East to Port Said, Egypt via Bonded Warehouse New York." The policy also stated: "Warranted full container loads Door to Door." The three full containers into which the porcelain dishware was "stuffed" were loaded on board the M.V. CHO YANG GIANT in Hong Kong. The vessel departed Hong Kong for New York, arriving on October 22, 1994, and the next day she sailed, with said goods, from New York to Antwerp. Upon arrival at Antwerp on November 7, 1994, the containers were transloaded into the feeder vessel M.V. DSR PORT SAID, which arrived at Port Said on November 19, 1994, and were discharged at the terminal on November 22, 1994.
The containers were then opened by Egyptian customs officers, including, allegedly, official Customs Clearing Agent Abdel Rahman el-Sayed Abdel Naeim. The containers of the plaintiff's cargo were subsequently delivered to the consignee. At that point a survey of the cargo was taken, and documented, by Samir Shata of the Royal Centre Surveyors and Consultants, describing damage to the cargo.
This Court granted defendants' original motion for summary judgment in an opinion reported at 962 F.Supp. 415 (S.D.N.Y.1997), where I held that (1) plaintiff had breached the warranty; (2) New York law governed the rights and obligations of the parties; and (3) under that law plaintiff's breach of warranty precluded any recovery on the policy.
*2 The Court of Appeals reversed. 140 F.3d 157 (2d Cir.1998). It held that English law, rather than that of New York, governed, and accepted plaintiff's contention (which defendants do not dispute) that "under English law a breach [of warranty] only precludes recovery of those losses causally related to the breach." 140 F.3d at 160. The Court of Appeals vacated the summary judgment in defendants' favor and remanded the case to this Court "for further proceedings to determine whether under English law [plaintiff] is entitled to recover on its claim." Id. at 163.
The case now proceeds through the crucible of discovery. The plaintiff here requests an order, pursuant to the Fed.R.Civ.P. 30(b)(7), permitting telephonic depositions of Abdel Naeim and Shata. The request also implicates Rule 28(b), which allows for depositions in foreign countries subject to certain conditions. In relevant part, Rule 30(b)(7) provides that "the court upon motion may order that a deposition be taken by telephone." Contrary to defendants argument that "telephonic depositions are permitted only in rare situations, " telephonic depositions are broadly permitted both in this jurisdiction and others. See Fireman's Fund Insurance Co. v. Zoufaly, 93 Civ. 1890, 1994 WL 583173 (S.D.N.Y.Oct. 21, 1994) ("such permission should be granted unless an objecting party will likely be prejudiced or the method employed would not reasonably ensure accuracy and trustworthiness'") (citing Colonial Times, Inc. v. Gasch, 509 F.2d 517 (D.C.Cir.1975)); Jahr v. IU Int'l Corp., 109 F.R.D. 429, 430-31 (M.D. N.C. 1986) ("the Court concludes that leave to take telephonic depositions should be liberally granted in appropriate cases").
Authorization to take telephonic depositions does not depend upon a showing of hardship by the applicant. See Jahr 109 F.R.D, at 430-31. The mere assertion by the requesting party that telephonic depositions are preferred on the grounds of efficiency and economy constitutes a legitimate reason to permit them. See Fireman's Fund, 1994 WL 583173, at 1. The burden then rests upon the objecting party, here the defendants, to show why the depositions should proceed in the traditional manner. See Cressler v. Neuenschwander, 170 F.R.D. 20, 21 (D.Kan.1996) (citing Jahr at 431).
The courts have recognized legitimate bases upon which to reject a request for telephonic depositions, but the defendants here fail to persuade on any such grounds. Defendants argue that counsel is denied the ability to observe and interact with a deponent during telephonic depositions, and therefore that they are not a commendable alternative to traditional depositions. The logic of this argument, of course, "would be tantamount to repealing Rule 30(b)(7)" since all telephonic depositions inherently lack some advantages of face-to-face encounters. Cressler, 170 F.R.D. at 21. Further, objections on the grounds of accuracy and difficulties in translation are not particular to this case, but are instead the nearly inevitable product of the convergence of Rule 28(b), allowing foreign depositions, and Rule 30(b)(7), allowing telephonic depositions in lieu of traditional ones. The strictures of Rule 28(b) serve to mitigate the dangers inherent in foreign depositions, both in terms of accuracy and identity of deponents and documents, by requiring that the deponent testify pursuant to a letter of request, treaty or convention, or on notice before one authorized or commissioned to administer oaths. Finally, the documents at issue here, a one page declaration and a short survey report, are far from the "voluminous" documents recognized in Fireman's Fund as providing reasonable grounds to reject a telephonic means of deposing a witness. 1994 WL 583173 at * 1.
*3 The Court is unconvinced that the defendants will be prejudiced by allowing the plaintiff to telephonically depose these two crucial non-party witnesses. As the court in Fireman's Fund noted, "if the party seeking the deposition is prepared to conduct its portion without face-to-face encounter with the witness, there is no reason not to permit it to do so, with any other party free to question the witness in person, thus avoiding any prejudice while reducing expenses." Id. at *1.
Though the Court concludes that plaintiff's request complies with Rule 30(b)(7), and therefore grants the motion for telephonic deposition, such deposition must also comply with Rule 28(b). The defendant argues, correctly, that the proposed telephonic depositions will be procedurally defective if they fail to conform to Rule 28(b). Rule 28(b) governs the taking of depositions in foreign countries, allowing depositions to be taken:
(1) pursuant to any applicable treaty or convention, or (2) pursuant to a letter of request (whether or not captioned a letter rogatory), or (3) on notice before a person authorized to administer oaths in the place where the examination is held, either by the law thereof or the law of the United States, or (4) before a person commissioned by the court, and the person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony.
The final sentence of Rule 30(b)(7) was added in 1980 to clarify that a deposition is "taken" in the place where the witness answers the questions rather than the place where the questions are propounded, thereby bringing Rule 30(b)(7) into harmony with Rule 28(b). See Loucas Matsas Salvage & Towing v. M/T Cold Spring, Civ.A. 96-0621, 1997 WL 102491 (E.D.La.March 5, 1997) (citing Official Comment to 1980 Amendments). The plaintiff here must, therefore, provide to this Court a proposal for compliance with Rule 28(b), which will include necessarily a means by which to place the deponents under oath by a person located in Egypt. Fulfillment of this requirement is a necessary and sufficient condition for the valid telephonic deposition of these two witnesses
It is the conclusion of the Court that, assuming compliance with Rule 28(b), the plaintiff will be able to effectively admit the survey report into evidence through the testimony of Shata, making a ruling on its alternative admissibility unnecessary at this time. Upon failure to obtain the anticipated testimony from Shata, the plaintiff is welcome to renew its motion asking the Court to order admission of the report.
Plaintiff's motion to permit the telephonic depositions of Shata and Abdel Naeim is granted on the condition that plaintiff provides the Court prior to any such depositions with a proposal of compliance with Rule 28(b).
Defendants cross motion for a protective order is denied.
The parties are in any event directed to attend a status conference in Room 17C, 500 Pearl Street, at 2:00 p.m. on December 1, 2000.
*4 It is SO ORDERED.
OPINION AND ORDER
PISANO, United States Magistrate Judge.
*1 This matter comes before the court upon the application of plaintiff Colette Anguile to be deposed telephonically, pursuant to Fed.R.Civ.P. 30(b)(7). The court will treat plaintiff's initial application for a telephonic deposition, set forth in her proposed discovery plan of August 12, 1993, as a motion. Defendant Alain Gerhart has submitted opposition to plaintiff's motion. Pursuant to Fed.R.Civ.P. 78, oral argument was not heard.
This is an unusual case involving exotic locales and novel claims. The suit alleges intentional and negligent infliction of emotional distress, intentional interference in custodial relations, intentional interference with parental rights, and defamation. The plaintiff is a citizen of Gabon, a small nation located on the west coast of Africa. The defendant is a French citizen who currently resides in Middlesex, New Jersey. The parties met in the summer of 1974, while the defendant was working in Gabon. Early in 1975, the plaintiff became pregnant with the defendant's child. In the autumn of 1975 the plaintiff traveled to France where she gave birth to Samantha Gerhart on November 20.
In January 1976, while the plaintiff was pursuing a baccalaureate degree in Tours, France, the defendant took Samantha to Gabon to stay with the plaintiff's parents. The plaintiff alleges that when she returned to Gabon in the summer of 1976, the defendant sought custody of Samantha. The plaintiff further alleges, and the defendant disputes, that plaintiff was awarded legal custody of Samantha and defendant was granted visitation rights.
The plaintiff claims that sometime between November 18, 1976 and July 1977, the defendant abducted Samantha. The plaintiff indicates that she could not locate the whereabouts of the defendant and Samantha. From 1977 to 1991, the plaintiff had sporadic contact with the defendant and a couple known as Mr. and Mrs. Walker who were friends of the defendant's. The plaintiff claims that the defendant withheld all contact between Samantha and herself until July 28, 1993, when Samantha and the plaintiff met at the home of defendant's mother in Switzerland. The plaintiff asserts that after this meeting she tried to resume contact with Samantha, yet the defendant had alienated Samantha from her. Specifically, the plaintiff maintains that the defendant, a Caucasian, told Samantha that the plaintiff was an "ignorant, Black woman whose country engaged in such savage acts as eating monkey's brains and decapitation." (Compl., Count 5, ¶ 2).
The plaintiff filed her complaint on February 3, 1993 in the Superior Court of New Jersey, Law Division, Middlesex County. On March 9, 1993, the defendant filed a petition for removal to federal court, in accordance with 28 U.S.C. § 1446(b). In a proposed discovery plan dated August 12, 1993, plaintiff's counsel requested, pursuant to Rules 28(b) (1); 30(b)(7); and 32(a)(3), that plaintiff, as well two witnesses residing in Gabon and one witness residing in Canada, be deposed by telephone. Counsel for the defendant had submitted a letter and informal brief on August 11, 1993 in which he agreed to the telephone deposition of the Gabonese and Canadian witnesses, but opposed the telephone deposition of plaintiff. The plaintiff replied in a letter brief dated August 31, 1993. In her reply, the plaintiff certified that coming to the forum for a deposition would impose an undue burden on her because of her financial hardships and because she is unable to take vacation leave until 1994.
*2 The matter is further complicated by the fact that the procedures proposed for taking plaintiff's telephone deposition in Gabon entail significant practical difficulties. For example, the parties must undergo a lengthy process to schedule the deposition with the American Consulate in Gabon. (Plaintiff's Proposed Discovery Plan of 8/12/93, at 3-4). For the following reasons, plaintiff's deposition may be taken by telephone subject to the following conditions: (1) the plaintiff must pay the cost of the telephone deposition and (2) the plaintiff must be deposed in the forum forty-eight hours prior to trial.
Fed.R.Civ.P. 30(b)(7) provides in pertinent part, "the court upon motion may order that a deposition be taken by telephone." The defendant maintains that the plaintiff may not be deposed by telephone because: (1) the plaintiff has not demonstrated that appearing for deposition in her chosen forum would cause her extreme hardship and (2) the defendant would be prejudiced if not permitted to observe the plaintiff's demeanor.
The defendant chiefly relies on Clem v. Allied Lines International Corp., 102 F.R.D. 938 (S.D.N.Y.1984), in which the court denied a Hong Kong plaintiff permission to have his deposition taken by telephone. The Clem court held that a plaintiff who seeks to have his deposition taken by telephone while abroad must demonstrate that deposition in the forum would impose an extreme hardship on him. Id. at 940. The plaintiff in the instant case attempts distinguish her situation from that of the plaintiff in Clem and to show that she would suffer extreme financial hardship if required to be deposed in the forum.
Clem is an anomaly in the line of modern cases dealing with Fed.R.Civ.P. 30(b)(7). It has been disregarded by several courts in favor of the well-reasoned approach set forth in Jahr v. IU Intern. Corp., 109 F.R.D. 429, 430-431 (M.D. N.C. 1986):
Nothing in the language of Rule 30(b)(7) requires that a telephonic deposition may only be taken upon a showing of necessity, financial inability, or other hardship....
The Court finds that Rule 30(b)(7) should be construed in para materia with subsection (b)(4). Both have a joint purpose of reducing the cost of federal litigation by providing alternatives to traditional stenographic depositions. The courts have not required a showing of extraordinary circumstances before granting Rule 30(b) (4) motions. (citations omitted).... Thus, upon giving a legitimate reason for taking a deposition telephonically, the movant need not further show an extraordinary need for the deposition. Rather, the burden is on the opposing party to establish why the deposition should not be conducted telephonically.
(emphasis supplied). The court also explained that in civil cases, "the better rule is that a request for a telephonic deposition should not be denied on the mere conclusory statement that it denies the opportunity for face-to-face confrontation." Id. at 432. Jahr was followed in Bywaters v. Bywaters, 123 F.R.D. 175 (E.D.Pa.1988); Mercado v. Transoceanic Cable Ship Co., Inc., No. 88-5335, 1989 WL 83596 (E.D.Pa. July 25, 1989); Rehau, Inc. v. Colortech, Inc., 145 F.R.D. 444 (W.D.Mich.1993); and Bachman Co. v. Anthony Pinho, Inc., No. 91-5679, 1993 WL 346063 (E.D.Pa. Sept. 9, 1993).
*3 This court finds the Jahr analysis to be correct. Moreover, the court is aware that it "must employ discretion and caution to ensure that no one is prejudiced by this relatively untested method of discovery." Mercado v. Transoceanic Cable Ship Co., Inc., 1989 WL 83596 at *1. Therefore, the court will permit plaintiff's deposition to be taken by telephone subject to the following conditions: (1) the plaintiff must pay the cost of the telephone deposition and (2) the plaintiff must be deposed in the forum forty-eight hours prior to trial. The plaintiff may also opt to waive her request for a telephone deposition and come to the forum to be deposed.
The court permits the telephone deposition of plaintiff in order to facilitate discovery and because the defendant would not be prejudiced by a lack of face-to-face questioning at this juncture. However, the court is faced with the practical problem that the cost of the plaintiff's deposition taken in either manner will be high. Both parties seek to have the other bear the cost of the deposition. Having commenced this action, plaintiff cannot dispute that she has an obligation to provide discovery in the form of a deposition. Nor can plaintiff visit the expense of the deposition upon defendant, for she is the one who asserts the claims. Thus, the cost of the telephonic deposition shall be the responsibility of plaintiff. The plaintiff may choose to be deposed in the forum if she determines it to be more cost-effective. In consideration of plaintiff's vacation schedule, the court would permit the plaintiff to be deposed in the forum in January 1994 and would amend the scheduling order accordingly.
In addition, the court agrees with the defendant that counsel's ability to see the plaintiff and judge her demeanor is important in this case where the plaintiff is the key witness to most of the relevant facts and where the plaintiff's emotional suffering is squarely at issue. The court is also mindful of plaintiff's difficulties in traveling to the United States at this time. Thus, if the plaintiff is deposed by telephone, the court finds that the needs of both parties would be met by requiring the plaintiff to also be deposed in the forum forty-eight hours before commencement of trial.
The plaintiff's deposition may be taken by telephone subject to the following conditions: (1) the plaintiff must pay the cost of the telephone deposition and (2) the plaintiff must be deposed in the forum forty-eight hours prior to trial.
Attorneys and Law Firms
Sammer Essi, pro se.
Paul I. Perlman, Esq., for Defendants.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge.
*1 This matter has been referred to me for Report and Recommendation by the Honorable Norman A. Mordue, United States District Judge.
This action was filed by plaintiffs Broadcast Music, Inc. ("BMI") and MJ Publishing Trust ("MJ"), alleging copyright infringement against defendants in connection with alleged public performances of music at the Metro Lounge & Cafe ("Metro Lounge"). (Dkt. No. 1). Presently before the court are plaintiffs' motions for discovery sanctions as against defendant Sammer Essi, as well as for default as against Metro Lounge. (Dkt.Nos.34, 37).
Defendants filed their answer on February 11, 2011. (Dkt. No. 16). All three of the defendants were originally represented by the same attorney. In addition to Sammer Essi, and Gabriel Sande, individually, Metro Lounge was named as an entity. On January 3, 2012, I granted defense counsel's motion to withdraw. (Text Order dated Jan. 3, 2012). Mr. Essi was directed to obtain new counsel. ( Id. ) Mr. Sande, represented by new counsel,  entered into a settlement agreement with plaintiffs and was terminated as a defendant on April 11, 2012. (Dkt. No. 32).
On January 10, 2012, Mr. Essi appeared before me and stated that he had not yet been able to retain an attorney, and I extended his deadline to do so until January 17, 2012. I also informed him that his past-due discovery responses were due on January 31, 2012, and his deposition was to be completed by February 14, 2012, whether or not he retained counsel. (Text Orders dated Jan. 3 & 10, 2012).
On January 22, 2012, I held a status conference, during which Mr. Essi stated that he would be representing himself. (Text Order dated Jan. 22, 2012). I informed defendant Essi that he could represent himself as an individual, but he could not represent Metro Lounge, the corporate defendant. ( Id. ) I ordered defendant Essi to provide the outstanding discovery, directed to him individually, by March 31, 2012, and I informed Mr. Essi that he was responsible for producing this discovery, notwithstanding any further delay in obtaining counsel for Metro Lounge. ( Id. ) I extended the deadline to complete Mr. Essi's deposition to April 29, 2012, I extended the deadline for all discovery to May 18, 2012, and I extended the deadline for dispositive motions to June 26, 2012. ( Id. )
On April 25, 2012, I held another status conference. Mr. Essi attended the conference in-person. Plaintiff's counsel agreed to send defendant Essi another copy of the discovery requests because defendant had still failed to respond to discovery. I gave defendant Essi until May 18, 2012 to respond to the outstanding discovery. To the extent that documents were no longer available, defendant Essi was ordered to provide the plaintiffs' counsel with a sworn affidavit, explaining how the documents were lost or destroyed. (Text Order dated April 25, 2012). Defendant Essi also stated that he had been unable to retain an attorney to represent Metro Lounge. I granted plaintiffs' counsel leave to file whatever motions he deemed appropriate regarding the lack of representation for the corporate defendant. ( Id. )
*2 On June 8, 2012, plaintiffs filed a motion requesting that, if defendant Metro Lounge did not appear by counsel within fourteen days of an order requiring it to do so, plaintiffs would be authorized to ask the Clerk to "enter a Notice of Default" and upon such entry, the plaintiffs would be authorized to move for a "Default Judgment." (Dkt. No. 34). On June 13, 2012, I issued a Text Order, giving defendant Essi "one final opportunity to fully comply with this court's 4/24/12 Text Order. In my June 13th Text Order, I also stated that defendant Essi's failure to comply with the court's prior orders by June 25, 2012 "MAY RESULT IN THE IMPOSITION OF SANCTIONS AGAINST HIM INCLUDING THE POSSIBLE ENTRY OF A DEFAULT JUDGMENT (Text Order dated June 13, 2012).
On June 26, 2012, defendant Essi attempted to file a letter, explaining why he could not afford to retain counsel for Metro Lounge and explaining that some of the documents in question were no longer available due to a fire and subsequent water damage at the restaurant. (Dkt. No. 36). The letter was stricken from the docket because defendant Essi neglected to include a certificate of service on plaintiffs. (Dkt. No. 36). Also on June 26, 2012, plaintiffs filed a motion for discovery sanctions, including default, against Mr. Essi as the individual pro se defendant. (Dkt. No. 37). Defendant Essi has not responded to the motion for sanctions.
II. Discovery Sanctions
A. Legal Standards
Rule 37(b) of the Federal Rules of Civil Procedure provides that if an individual fails to comply with a court order regarding discovery, the court may take various steps to sanction the disobedient party. FED. R. CIV. P. 37(b)(2)(A) (i-vii). The sanctions include an order establishing facts, an order precluding evidence, issues or claims, and an order striking pleadings. Id. Rule 37(b)(2)(A)(vi) authorizes the court to render a default judgment for failure to comply with a discovery order.
The imposition of sanctions under Rule 37 is within the discretion of the district court. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002). A default judgment, the most severe sanction that a court can apply, should be imposed as a discovery sanction only in extreme circumstances. See Marfia v. T.C. Ziraat Bankasi, New York Branch, 100 F.3d 243, 249 (2d Cir.1996) (citations omitted). The court may consider the full record in selecting the appropriate sanction. Southern New England Telephone Co. v. Global NAPs, Inc., 624 F.3d 123, 144 (2d Cir.2010) (citing Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y.2002)). The court should also consider the willfulness of the non-compliant party; the reasons for the noncompliance; the efficacy of lesser sanctions; the duration of the noncompliance; and whether the party has been warned of the consequences of the noncompliance. Amatangelo v. National Grid USA Service Co., Inc., No. 04-CV-246, 2007 WL 4560666, at *8 (W.D.N.Y. Dec. 18, 2007) (citing 3801 Beach Channel, Inc. v. Shvartzman, No. 05-CV-207, 2007 WL 2891119, at *4 (E.D.N.Y.2007)). The party in question, particularly a pro se litigant, must have had prior notice that violation of the court's order would result in a dismissal or a default judgment. Woodward v. Beam, No. 07-CV-645, 2008 WL 4998398, at *2 (W.D.N.Y. Nov. 19, 2008) (citations omitted).
*3 Rule 37(b)(2)(C) provides that instead of, or in addition to the various sanctions listed in the rule, the court must order the disobedient party, the attorney for that party, or both to pay the reasonable expenses, including attorneys fees, caused by the failure, unless the failure was substantially justified or other circumstances make the award of expenses unjust.
In this case, plaintiffs move for a default judgment as a sanction for Mr. Essi's failure to answer plaintiffs' request for discovery after being ordered to do so several times by the court. (Dkt. No. 37). Plaintiffs served their document requests, interrogatories, and requests for admissions on September 22, 2011. (Pls.' Exs. 1, 2) (Dkt. No. 37-1). Defendant Essi did not respond to the discovery request, and plaintiffs sent a second request on October 28, 2011. (Pls.' Ex. 3). On November 8, 2011, plaintiffs served a notice to take defendant Essi's deposition on December 9, 2011. (Pls.' Ex. 4). Defendant Essi has never responded to the plaintiffs' interrogatories at all.
At the same time that the court granted defendant Essi's counsel's motion to withdraw, the court reminded defendant Essi that the "[o]utstanding interrogatories and document requests must be provided to new counsel, and that defendant Essi must advise his new attorney that the responses were due by January 31, 2012. (Text Order Dated Jan. 3, 2012). On January 10, 2012, after defendant Essi told the court that he had been unable to retain new counsel, I gave the defendant an extension of time to do so, but told him that the "previously set" deadlines for providing "past-due" discovery responses and to submit to a deposition "remain in effect." (Text Order dated Jan. 10, 2012).
Defendant Essi did not respond to the discovery, and on February 22, 2012, I told plaintiffs' counsel to provide defendant with "another copy" of the interrogatories and document requests "the responses to which are delinquent."I ordered defendant Essi to respond to those discovery requests by March 31, 2012, notwithstanding his inability to locate an attorney. I also told defendant Essi that he must submit to a deposition on or before April 29, 2012. On March 30, 2012, defendant served an incomplete response to the plaintiffs' first request for documents. (Pls.' Ex. 6). The "response" consisted of the plaintiffs' papers, with defendant Essi's handwritten responses to some of the requests.
There were brief penciled-in responses to Requests Nos. 8-14, which were not "documents, " but were statements of what the documents might contain. Request No. 8 asked for all documents reflecting the maximum lawful capacity of the entire Metro Lounge. Defendant simply penciled-in "101 capacity." Although defendant's penciled-in responses for Requests Nos. 9, 11-12, state that documents were "enclosed, " plaintiffs state that no documents were attached. Defendant stated that there were no records reflecting the music performed or provided at the Metro Sushi Lounge on November 6, 2009 and November 7, 2009. In response to the question asking about documents reflecting ownership of the building, defendant penciled-in that the building was "owned by uncle." Plaintiffs requested a copy of the defendant's ASCAP licensing agreements from 2007 until the present, and defendant answered that the "bill" was enclosed "what we could salvage." However, plaintiffs claim that no document was attached to the responses. Defendant Essi does not claim otherwise.
*4 On April 25, 2012, I held another status conference, and I ordered the plaintiffs to provide defendant Essi "another copy" of the discovery requests for which the responses were still outstanding, including sworn responses to plaintiffs' interrogatories. (Text Order dated April 25, 2012). I told plaintiff to provide "any other available documents, " and to the extent that the documents were no longer available, he was to provide an affidavit, explaining the circumstances under which the relevant documents were lost or destroyed as a result of a fire and/or other events at the Metro Lounge.
Notwithstanding my April 25, 2102 order, defendant Essi failed to provide the requested material, and failed to provide a sworn statement, attesting to the unavailability of the documents requested. On June 12, 2012, plaintiffs filed a letter, asking the court to "reissue" its April 25, 2012 Text Order, giving defendant Essi another chance to comply with discovery requests or suffer the consequences of a potential default judgment. (Dkt. No. 35). On June 13, 2012, I issued another Text Order, giving defendant Essi "one final opportunity" to fully comply with this court's prior order. (Text Order dated June 13, 2012). In my June 13th Order, I specifically warned defendant Essi that his failure to comply with the court's orders by June 25, 2012 could result in the imposition of sanctions "INCLUDING THE POSSIBLE ENTRY OF A DEFAULT JUDGMENT...." ( Id. ) The warning to defendant was crystal clear.
Defendant Essi's, June 26, 2012 "attempted" filing requested assistance from the court in proceeding toward "settlement." (Dkt. No. 36). The letter explained defendant Essi's problems with the business and noted that his "partner" was able to settle with plaintiffs for considerably less than they were asking from him. Defendant attached a four page document, purportedly a letter, addressed to BMI. In the letter addressed to the court, defendant also mentioned his problems with insurance and other issues. The document was not sworn to as the court had directed, and there was no certificate of service upon plaintiffs. Defendant still failed to obey the court's orders regarding discovery. I ordered that the letter be stricken because of the deficiencies. (Dkt. No. 38). He has also failed to respond to the motion for discovery sanctions.
Based upon the entire record and upon defendant Essi's continued failure to abide by the court's orders, the court finds that a default judgment would be appropriate. Defendant has willfully failed to produce the relevant documents after at least four orders to do so by the court. When he "responded" to the document requests, he neglected to attach the documents that he stated he was attaching to the response. The court understood that some of the documents could be unavailable and afforded defendant the opportunity to submit an affidavit, explaining why he could not produce these documents. Defendant also failed to comply with that order.
*5 Defendant states that the reason for the noncompliance is because the documents may not be available due to a fire and subsequent water damage at the Metro Lounge. However, as stated above, defendant listed some documents in the response he sent to plaintiffs without attaching the relevant documents. If that had been a mistake, he could have corrected it by sending the documents by separate cover, but he has not done so even after the plaintiffs pointed it out in their motion for discovery sanctions. When given the opportunity to submit an affidavit, attesting that certain documents were no longer available to him, he failed to comply. Thus, although the court was somewhat sympathetic to his stated plight and his lack of funds, defendant has not acted in good faith with respect to plaintiffs' attempts at discovery, nor has he acted in good faith in complying with the court's orders.
The defendant's failure to comply has now lasted since September of 2011, when plaintiffs first requested the discovery. It does not appear that defendant will ever send the documents to the plaintiff. "Lesser" sanctions are ineffective because it is unclear that defendant could pay monetary sanctions, and prohibiting him from presenting evidence is tantamount to a default judgment in this case. Finally, defendant was specifically warned that his continued failure to abide by the court's orders could result in the entry of a default judgment against him. Thus, this court recommends that a default judgment be entered as to liability.
The court notes that Rule 37 also provides for attorneys fees and costs in addition to or in lieu of any other sanction, unless the court finds such an award to be unjust. Fed.R.Civ.P. 37(b)(2) (C). Based upon this court's finding that a default judgment should be entered in this case and if so, defendants will be assessed damages for the statutory violations, the court finds that to award additional fees at this time would be unjust, and given defendant Essi's stated financial status, awarding further expenses would be futile.
III. Default and Dismissal
A. Legal Standards
It is well-settled that a person who has not been admitted to practice law may not represent anyone other than himself. Lattanzio v. COMTA, 481 F.3d 137, 139-40 (2d Cir.2007). See also 28 U.S.C. § 1654. In Berrios v. N.Y. City Housing Authority, 564 F.3d 130, 133 (2d Cir.2009), the court made it clear that the rule prohibiting an entity from proceeding pro se applies to a corporation of which the individual is the sole shareholder; a limited liability company of which he is the sole member; a partnership of which he is a partner; a co-party in the litigation; an estate that has beneficiaries or creditors other than the lay litigant; or a minor child. Id. Courts have also disapproved any circumvention of this rule by the "procedural device" of assigning the corporation's claims to the lay individual. See Sanchez v. Walentin, No. 10-CV-7815, 2012 WL 336159 (S.D.N.Y. Jan. 31, 2012) (citing cases). A corporation may not take any action "pro se, " including the execution of a stipulation of settlement. Grace v. Bank Leumi Trust Co. of NY, 443 F.3d 180, 192-93 (2d Cir.2006) (citations omitted). In Guest v. Hansen, 603 F.3d 15, 20 (2d Cir.2010), the Second Circuit stated that the court has a responsibility to ensure appropriate representation for the parties appearing before it, even if those parties do not raise the issue.
*6 Although Metro Lounge initially appeared through counsel, the attorney withdrew, leaving the company unrepresented. Mr. Essi was told numerous times that the company could not proceed without counsel, and he initially told the court that he would attempt to retain new counsel for the company. However, it is clear from Mr. Essi's later representations that he was not able to, and will not be able to retain new counsel to defend on behalf of the company.
The appropriate action for the court to take when a defendant corporation does not appear through counsel is to enter a default judgment against the defendant. See Grace, 443 F.3d at 192. In this case, plaintiffs' motion asks only that defendant be given another two weeks within which to appear by counsel. However, this court finds that defendant has been well-aware of the requirement for quite some time, and that, an additional two weeks would not solve the defendant's problem. Thus, this court will recommend that a default judgment be entered against Metro Lounge based on its continued failure to appear through counsel after its original attorney withdrew.
The plaintiffs' motion did not include an assessment of the damages in this case. Although the damages are statutory, there are costs and attorneys fees requested in the complaint. (Dkt. No. 1). The court must ensure that there is a reasonable basis for the damages specified in a default judgment. J & J Sports Productions, Inc. v. Imperial Lounge & Sports Bar, Inc., No. CV 08-2061, 2012 WL 1356598, at *1-2 (E.D.N.Y. March 30, 2012) (Report-Recommendation) (citations omitted). Thus, although I recommend the entry of a default judgment as to liability for both defendants based on the record, damages must be determined at a later date. Fed.R.Civ.P. 55(b)(2)(B). The court need not necessarily hold a hearing on damages if the court may rely upon detailed affidavits and documentary evidence. See United States v. Cafolla, No. 5:12-CV-127, 2012 WL 2469968, at *5-6 & n. 3 (N.D.N.Y. June 27, 2012) (citations omitted).
WHEREFORE, based on the findings above, it is
RECOMMENDED, that plaintiffs' motion for discovery sanctions in the form of a default judgment against individual defendant Sammer Essi (Dkt. No. 37) be GRANTED, and that a default judgment be entered with respect to liability against the defendant, and it is RECOMMENDED, that plaintiffs' motion for an Order giving defendant Metro Lounge fourteen (14) more days within which to obtain an attorney (Dkt. No. 34) be DENIED AS MOOT, and it is
RECOMMENDED, that a default judgment with respect to liability be entered against defendant Metro Lounge based upon its failure to appear through counsel, and it is
RECOMMENDED, that if the court adopts this recommendation, the court hold a damage inquest by affidavit or otherwise, to determine the amount of damages in this case, and it is
ORDERED, that the Clerk serve copies of this Report-Recommendation upon defendants.
*7 Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have FOURTEEN (14) DAYS within which to file written objections to the foregoing report. Any objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.