United States District Court, S.D. New York
OPINION AND ORDER
JAMES L. COTT, Magistrate Judge.
Before the Court in this wage-and-hour and retaliatory discharge suit are two motions of Defendants Hyde Your Eyes Optical, Inc. (d/b/a Pildes Optical), Pildes of 76th Street Inc. (d/b/a Pildes Optical), Jamar Optical Inc. (d/b/a Pildes Optical), Dr. Daniel Pildes, O.D., Jay Pagirsky, and Dr. David Hyde, O.D. (hereinafter "Defendants"). On October 29, 2014, Defendants moved for discovery sanctions against Plaintiff Richard Farmer based on his violations of two court orders to produce certain documents, including medical records and releases, pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure. Defendants sought an order precluding Farmer from presenting evidence at trial regarding any medical, psychiatric, or psychological treatment he alleges occurred as a result of his termination from Defendants' employment, along with a warning from the Court that further willful noncompliance could result in dismissal of his claims. Defendants also sought attorney's fees and costs incurred in seeking Farmer's compliance with the Court's orders. While this motion was pending, on January 28, 2015, Defendants moved to dismiss Farmer's claims with prejudice for failure to prosecute after he failed to appear both for his deposition and a subsequent court conference. In the alternative, Defendants sought their costs arising from these delinquencies. Following the motion to dismiss, Farmer retained new counsel (for the third time), who have submitted papers opposing both motions.
For the reasons set forth below, I grant Defendants' motions for monetary sanctions but deny their motions for the sanctions of preclusion or dismissal at this time. Farmer is warned, however, that any further disregard of the Court's orders or neglect of his responsibilities as a litigant in this case will result in a recommendation to Judge Daniels that his claims be dismissed with prejudice.
Represented by counsel, Farmer filed this action on September 19, 2013 alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. and the New York Labor Law ("NYLL"), N.Y. Lab. Law § 1 et seq. (McKinney), for Defendants' failure to pay overtime compensation and for wrongful discharge following the termination of his employment after he commenced this suit. See Complaint dated September 5, 2013 (Dkt. No. 1); Amended Complaint dated September 24, 2013 (Dkt. No. 3). Farmer worked as a salesperson for Defendants, who are providers of eye care services, during the period beginning in approximately June 2008 to September 13, 2013, the date of Farmer's termination. Amended Complaint ¶¶ 8-14, 19, 32. Besides his sales work, Farmer alleges that he "was also required to perform additional training in his home, which resulted in an additional 40-60 hours of overtime per week, for which [Farmer] was not compensated." Id . ¶ 27. Farmer seeks unpaid overtime wages, liquidated damages, and damages for emotional distress as well as punitive damages pursuant to the FLSA and NYLL anti-retaliation provisions.
Discovery in the case has been protracted and contentious. The Court has adjudicated a number of disputes and extended the discovery deadline numerous times. (Dkt. Nos. 59, 64, 68, 87). Despite these extensions and irrespective of the latest deadline (which was January 16, 2015), discovery has been stalled since October 2014 due to Farmer's unwillingness to cooperate in the discovery process. Defendants first alerted the Court to Farmer's failure to fulfill his discovery obligations by letter dated July 7, 2014, while Farmer was proceeding pro se. Defs.' July 7 Letter-Motion (Dkt. No. 61). When Farmer did not produce any documents responsive to several requests that Defendants assert are relevant to Farmer's claims regarding the hours he worked (which Defendants describe as "substantially all of his waking hours") and the financial and emotional damages he incurred after his termination, Defendants' counsel, Paul P. Rooney, Esq. ("Rooney"), made several attempts to meet and confer with Farmer. See generally id. After Defendants' attempts at communication proved unsuccessful, they sought the Court's intervention.
Thereafter, Farmer retained Peter M. Zirbes, Esq. ("Zirbes") and Jeffrey J. Estrella, Esq. ("Estrella"), and at the Court's direction, the parties met and conferred three times in July, consummating in an agreement on July 20, 2014 that Farmer would provide most of the documents Defendants sought by August 4 (and thus in advance of Farmer's scheduled deposition on August 13). Order dated July 9, 2014 (Dkt. No. 64); Defs.' Aug. 26, 2014 Letter-Motion ("Defs.' Aug. 26 Letter-Motion") (Dkt. No. 65), at 1; Pl.'s Sept. 8, 2014 Letter ("Pl.'s Sept. 8 Letter") (Dkt. No. 69). When Farmer failed to provide any documents by August 4, Rooney contacted Zirbes, prompting the production of some of the documents on August 7 and Zirbes' promise to supply the rest by August 13. Defs.' Aug. 26 Letter-Motion at 1. By August 25, Defendants had received no additional documents and Zirbes could not provide a firm date by which they would be delivered, frustrating Defendants' efforts to take Farmer's deposition, which had been delayed in light of this non-production. Id. at 2.
1. September 19, 2014 Hearing and Discovery Order
On August 26, 2014, Defendants, by letter-motion, sought a court order compelling Farmer to produce the documents that he had agreed to produce on July 20. The Court scheduled a hearing for September 19 to consider defendant's application and directed Farmer to respond by September 8, explaining his bases, if any, for objecting to Defendants' document requests. Order dated September 3, 2014 (Dkt. No. 66). Zirbes responded on September 8, citing scheduling difficulties and a lack of communication with his client as the reasons for his inability to comply with the production deadlines, commit to a new deadline, or reschedule Farmer's deposition (which already had been rescheduled for August 27). Pl.'s Sept. 8 Letter. Frustrated with this response, Defendants again wrote the Court, this time seeking fees incurred in making their application and asking that the Court include in any order to compel a warning that defiance of the order could lead to dismissal of Farmer's claims with prejudice. Defs.' Sept. 12, 2014 Letter (Dkt. No. 72).
At the September 19 hearing, Farmer did not raise any objections to producing the documents at issue and offered no clear explanation for why he had failed to deliver them earlier. Therefore, the Court issued an order compelling Farmer to produce the outstanding discovery by October 3. Order dated September 19, 2014 (Dkt. No. 73). The Court denied Defendants' fee application without prejudice to renewal should future circumstances warrant it, and declined to impose any other sanctions on Farmer in light of his anticipated cooperation. Id.
2. October 17, 2014 Hearing and Discovery Order
Regrettably but by this point perhaps unsurprisingly, October 3 came and went without the production of any documents or any communication from Farmer, prompting Defendants to seek another court conference to renew their fee application and request an order to show cause why Farmer's claims should not be dismissed for failure to comply with the Court's September 19 order. Defs.' Oct. 6, 2014 Letter-Motion (Dkt. No. 74). The Court scheduled another hearing for October 17 and directed Farmer to respond to Defendants' letter by October 15, explaining the cause for his failure to comply. Order dated October 9, 2014 (Dkt. No. 75). Zirbes responded by letter on October 15, averring that Farmer had substantially complied with the Court's order by providing certain responsive documents, namely tax records, on October 6 (three days after the court-imposed deadline). Pl.'s Oct. 15, 2014 Letter ("Pl.'s Oct. 15 Letter") (Dkt. No. 77), at 1, 3 (attachment of Zirbes' Oct. 6 Production Cover Letter to Rooney) ("Ex. 1"); see also Affirmation of Paul P. Rooney in Support of Defs.' Motion to Compel ("Rooney Motion to Compel Affirmation") (Dkt. No. 83) ¶ 4. Nevertheless, several of the document requests enumerated in the September 19 order remained outstanding, and Zirbes provided no reason for the incomplete production other than his difficulty obtaining the documents from his client. Pl.'s Oct. 15 Letter, Ex. 1. In the same letter, Zirbes indicated that he intended to move to withdraw as Farmer's counsel because of an "irretrievable breakdown in the attorney client relationship." Id. at 2.
At the October 17 conference, the Court heard ex parte from both Farmer and Zirbes regarding the motion to withdraw, which the Court thereafter granted on the basis of the deterioration of the attorney-client relationship. See Memorandum Order dated November 13, 2014 (Dkt. No. 86). At the hearing (and in a subsequent order), the Court directed Farmer to produce the outstanding documents by October 24, 2014, to which he made no objection. See Order dated October 17, 2014 (Dkt. No. 78). The Court specifically informed Farmer that if he complied with this deadline, he would avoid sanctions; however, if he failed to comply with this directive, and given his violation of the previous order, he would be sanctioned. Id .; Transcript of Oct. 17, 2014 Proceeding at 33-34 (Dkt. No. 99).
3. Defendants' Motion to Compel to Which Farmer Failed to Respond
On October 29, 2014, after Farmer defied the Court's October 17, 2014 order requiring him to produce the outstanding documents, Rooney Motion to Compel Affirmation ¶ 5, Defendants filed the present motion to compel and for sanctions. Defs.' October 29, 2014 Motion to Compel ("Defs.' Motion to Compel") (Dkt. No. 81); Defs.' Mem. of Law in Support of Motion to Compel ("Defs.' Motion to Compel Mem.") (Dkt. No. 82); Rooney Motion to Compel Affirmation (Dkt. No. 83). Upon granting Zirbes' and Estrella's motions to withdraw (Dkt. No. 86), the Court issued an order on November 13, 2014, giving Farmer, now proceeding pro se again, until December 3, 2014 to respond to Defendants' motion. (Dkt. No. 87).
On December 9, the Court had received neither a response nor any communication from Farmer. This was unusual, as Farmer had always been actively involved in litigating his case during those phases when he was proceeding pro se. Additionally, copies of the Court's most recent orders mailed to Farmer's address listed on the docket were returned to the Court as undeliverable. The Court nonetheless presumed that Farmer had received notice of these orders electronically, having been granted permission to participate in electronic case filing in April 2014. (Dkt. No. 38). Accordingly, the Court issued a second order sua sponte granting Farmer another week, until December 17, to respond or, at a minimum, to seek a further extension of time. (Dkt. No. 90). Although solicitous of the possibility that personal circumstances may have prevented Farmer from meeting the briefing deadlines, the Court nonetheless warned Farmer that he "ha[d] an obligation to update the Court regarding any change in address, and that, upon proper motion, courts have dismissed cases for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) when a plaintiff has failed to update his last known address." Id . The Court received nothing from Farmer on December 17.
4. Farmer's Failure to Appear for his January 8 Deposition
On January 8, 2015, Defendants requested another court conference after Farmer failed to appear for his noticed deposition scheduled that day. Defs.' Jan. 8, 2015 Letter-Motion (Dkt. No. 101). In the letter, Rooney described his unsuccessful efforts to contact Farmer by telephone, email, and postal mail, in order to schedule his deposition. Id. at 1; see also Affirmation of Paul P. Rooney in Support of Defs.' Motion to Dismiss for Failure to Prosecute ("Rooney Motion to Dismiss Affirmation") (Dkt. No. 107) ¶¶ 5, 6, Ex. B. Having received no response from Farmer, on December 23, 2014, Defendants served a deposition notice for January 8, 2015 at the address Farmer had on file with the Court and also emailed the notice to Farmer. Rooney Motion to Dismiss Affirmation ¶¶ 7, 8, Exs. A & B. Between December 23, 2014 and January 8, 2015, Rooney made several attempts to contact Farmer by telephone and email to notify him about the deposition. Id . ¶¶ 9, 10, 11, Ex. B. Farmer never responded to any of these communications. Id . ¶ 4, 11. On January 8, Defendants were ready for the deposition with a court reporter and videographer but Farmer did not appear. Id . ¶ 11. Consequently, Defendants sought leave to move for dismissal for failure to prosecute because of Farmer's "repeated and deliberate discovery violations and flouting of court orders." Defs.' Jan. 8, 2015 Letter-Motion, at 3.
The Court scheduled a pre-motion conference for January 22, 2015 and directed Farmer to appear at the conference "in order to be heard in opposition to Defendants' anticipated motion." Order dated January 13, 2015 (Dkt. No. 102). In the order, the Court admonished Farmer that if he "continue [d] to ignore his responsibilities as a plaintiff in this lawsuit, the Court will be compelled to recommend dismissal of his case for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure to Judge Daniels." Id.
5. Farmer's Failure to Appear at the January 22 Court Conference and Aftermath
Farmer did not appear at the January 22, 2015 conference. As noted supra in footnote 1, Kevin K. Tung, Esq. ("Tung") filed a notice of appearance on behalf of Farmer on the evening of January 22; however, he provided no explanation to the Court as to why neither he nor his client had appeared at the conference that day. (Dkt. No. 104). Following the conference, the Court issued an order setting a briefing schedule for Defendants' motion to dismiss for failure to prosecute (Dkt. No. 103), and on January 28, 2015, Defendants so moved. Defs.' January 28, 2015 Motion to Dismiss for Failure to Prosecute ("Defs.' Motion to Dismiss") (Dkt. No. 105); Defs.' Mem. of Law in Support of Motion to Dismiss for Failure to Prosecute ("Defs.' Motion to Dismiss Mem.") (Dkt. No. 106); Rooney Motion to Dismiss Affirmation (Dkt. No. 107).
6. Farmer's New Representation and Belated Compliance with the Court's Orders
On February 13, 2015, Farmer filed an affidavit in opposition to Defendants' motion to dismiss. Affidavit of Richard Farmer in Opposition to Defendants' Motion to Dismiss ("Farmer Aff.") (Dkt. No. 108). Farmer lays the blame for all of his discovery deficiencies on Zirbes, his former counsel. See generally id. He alleges that he never refused to produce documents or participate in a deposition. Id . ¶ 6. Rather, he alleges that Zirbes did not respond to his questions regarding what documents had already been produced and received in discovery, and Zirbes canceled and rescheduled his deposition without consulting him. Id . ¶¶ 6, 9. Furthermore, Farmer claims that, after Zirbes' withdrawal, he never informed Farmer of upcoming deadlines or court appearance dates, of the obligation to update the Court with his new mailing address, or of the consequences of failing ...