United States District Court, S.D. New York
Jonathan E. Levitt, Esq., Michelle L. Greenberg, Esq., FRIER & LEVITT, LLC, Pine Brook, NJ, Attorneys for the Plaintiff.
Ricki E. Roer, Esq., William Fuger Cusack, III, Esq., WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, New York, NY, Attorneys for the NYU Defendants.
OPINION and ORDER
ROBERT W. SWEET, District Judge.
Defendants NYU Hospitals Center, New York University Medical Center, NYU Langone Medical Center, and NYU Hospital for Joint Diseases (collectively, the "NYU Defendants") have moved pursuant to Federal Rule of Civil Procedure 37(b) (2) to either dismiss the damages claims against them or to preclude Plaintiff Sean Thompson ("Thompson" or the "Plaintiff") from introducing any evidence of damages against them, based on an alleged violation of the Court's October 22, 2014 Order compelling discovery. For the reasons set forth below, the motion is granted in part and denied in part.
Background and Prior Proceedings
This is a diversity case alleging state-law whistleblower claims, brought by the Plaintiff, Sean Thompson, against five hospital organizations that previously employed him. On March 31, 2013, Thompson filed a Complaint alleging that he was terminated from his employment at Jamaica Hospital and his faculty position at NYU because he brought patient care and safety issues to the attention of his supervisors. (Complaint, Dkt. No. 1.) Thompson alleged that this termination violated Sections 740 and 741 of the New York Labor Law and demanded reinstatement in his former position, back pay and benefits, costs and attorney's fees, punitive damages, and any other relief the Court deems proper. (Id. at 5-7.)
On September 24, 2014, the NYU Defendants submitted a letter-motion to compel the Plaintiff to produce documents supporting various aspects of his damages claims. After oral argument on October 15, 2014, the Court issued an Order requiring the Plaintiff to produce the requested documents by November 21, 2014 (the "October 22 Order" or the "Order"). In specific, Thompson was ordered to produce a computation of damages, including a formula for how the computation was generated and supporting documents; documents related to his claim for lost income, including tax returns from 2012 onwards and information about attempts to secure other employment from 2010 onwards; documents relating to damages mitigation; documents relating to lost malpractice, health, and dental insurance premiums; and documents relating to his claim of lost bonuses. (Order, Dkt. No. 43.) On November 26, 2014, after the deadline set by the Order, the Plaintiff produced 57 pages of documents. (Affidavit of Michelle Greenberg, Dkt. No. 64 (the "Greenberg Aff."), Ex. B.)
Viewing the production as insufficient, the NYU Defendants filed the instant motion on March 9, 2015, seeking Rule 37 sanctions against Thompson for failure to provide discovery in response to the October 22 Order. (See Memorandum of Law in Support of Motion for F.R.C.P. Rule 37 Dismissal and Preclusion Motion, Dkt. No. 52 (the "NYU Mem.") at 1.) The NYU Defendants seek either dismissal of the damages claims against them or, in the alternative, to have Thompson precluded from introducing any evidence of damages against them. (Id.) The motion was heard on submission on May 20, 2015.
When a party fails to provide discovery in response to a court order, Federal Rule 37(b) (2) allows the Court to impose a variety of sanctions, from prohibiting certain claims and defenses to staying proceedings to dismissal of the action in whole or in part. Rule 37 requires that any sanction be "just, " in order to ensure that "the severity of sanction  be commensurate with the non-compliance." Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007). A district court has "wide discretion" in determining what sanction is appropriate, Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991), but dismissal should not be imposed absent "willfulness, bad faith, or any fault" on the part of the party that failed to comply. Shcherbakovskiy, 490 F.3d at 140 (quotation omitted).
A. Plaintiff Has Not Complied With the October 22 Order
As an initial note, it is undisputed that Thompson failed to produce the required documents by the November 21, 2014 deadline set by the Order. Thompson claims that he mailed the documents on November 26 (Plaintiff's Brief in Opposition to NYU Defendant's Motion to Dismiss, Dkt. No. 63 (the "Pl. Br."), at 3), while the NYU Defendants claim that they had still not received the production by December 1, and that they only received the documents at an unspecified later date. (NYU Mem. at 5.)
The parties differ on what the production contained. The NYU Defendants argue that "the only documents produced by plaintiff were portions of his 2012 and 2013 federal tax forms." (Id.) Thompson argues that he "produced all outstanding documents in his possession, " and that the documents produced contained ...