United States District Court, W.D. New York
DECISION & ORDER
W. PAYSON, UNITED STATES MAGISTRATE JUDGE
pending before this Court are motions by defendant Lewis
General Tires, Inc. (“LGT”) for discovery
sanctions (Docket # 117) and by plaintiff Walter Buckingham
for leave to amend his complaint (Docket # 103) and for
orders compelling further discovery responses from LGT and
for sanctions (Docket ## 106, 107, 110, 121). Each of these
motions is addressed below.
LGT's Motion for Sanctions
before this Court is LGT's third motion for sanctions in
the form of an order dismissing Buckingham's complaint.
(Docket # 117). The motion pertains to Buckingham's
failure to produce a copy of a settlement agreement relating
to a prior discrimination lawsuit he had filed.
1, 2016, this Court ordered Buckingham to produce that
agreement. (Docket ## 92, 93). Buckingham sought
reconsideration of the Court's order on the grounds that
the settlement agreement was confidential. (Docket # 97). On
July 1, 2016, the Court issued an order stating its
willingness to reconsider the June 1, 2016 order on the
condition that Buckingham submit the settlement agreement to
the Court for in camera review. (Docket # 100).
Buckingham neither produced the agreement for in
camera review nor provided a copy to LGT. Rather,
Buckingham filed another motion for reconsideration asserting
that he did not possess the agreement. (Docket # 101). The
Court denied the motion, noting that Buckingham's
previous representations suggested that the agreement existed
and that the record did not demonstrate his inability to
obtain the agreement from his “former counsel, or
another party or agent within Buckingham's
control.” (Docket # 102). The Court declined
reconsideration because Buckingham had not provided
sufficient information to permit the Court to
“conclu[de] that the agreement is not within his
control to obtain and produce.” (Id.). The
Court again ordered Buckingham to produce the agreement
directly to LGT or to the Court for in camera
still has not produced a copy of the settlement agreement.
(Docket # 117-1 at ¶ 45). Instead, Buckingham filed a
document alleging that he does not have the settlement
agreement and has not possessed it for over ten years.
(Docket # 108). According to Buckingham, the party who
possessed that agreement is now deceased and he does not know
where to locate it. (Id.).
pending motion, LGT argues that Buckingham's continued
refusal to produce the settlement agreement, coupled with his
other litigation conduct, warrants the extreme sanction of
dismissal. (Docket # 117-1 at ¶¶ 52-60). As the
Second Circuit has cautioned, “[d]ismissal of a
lawsuit, or its analogue, striking an answer, is appropriate
if ‘there is a showing of willfulness, bad faith, or
fault on the part of the sanctioned party;' however,
because it is a ‘drastic remedy ... it should be
imposed only in extreme circumstances, usually after
consideration of alternative, less drastic
sanctions.'” Occhino v. Citigroup Inc.,
2005 WL 2076588, *11 (E.D.N.Y. 2005) (quoting West v.
Goodyear Tire & Rubber Co., 167 F.3d 776, 789-90 (2d
record before the Court in this matter, I find that the
extreme sanction of dismissal is not justified at this
stage. While Buckingham's refusal to produce the
settlement agreement has been at issue in several previous
motions, Buckingham has submitted a statement since those
motions were determined indicating that the agreement is not
in his possession or within his ability to produce. (Docket #
108). His statement, however, does not identify the party who
last possessed the agreement and is insufficient to prove his
inability to produce it. At this stage, the most efficient
manner in which to obtain information about the previous
litigation and the settlement of that litigation is to permit
counsel for LGT to depose Buckingham on those subjects.
Accordingly, Buckingham is ordered to appear for a deposition
at LGT's counsel's office on April 12, 2017, at 10:00
a.m. Any unexcused failure to appear may result in the
imposition of sanctions, including dismissal of this action.
During the deposition, LGT may examine Buckingham about facts
relating to Buckingham's possession, custody, or control
of the agreement.
has previously opposed production of the settlement agreement
on the grounds that he was contractually obligated to keep
the agreement confidential. “However, the mere fact
that [the parties] designated their . . . agreement as
confidential does not shield it from discovery.”
Laforest v. Honeywell Int'l Inc., 2004 WL
1498916, *7 (W.D.N.Y. 2004). Rather, “[t]o be entitled
to discovery of a settlement agreement, the party seeking
disclosure of the agreement must simply make a minimal
showing that its production is likely to lead to the
discovery of other relevant evidence.” Levick v.
Maimonides Med. Ctr., 2011 WL 1673782, *3 (E.D.N.Y.
2011). Of course, as this Court has previously ordered, the
settlement agreement and information relating thereto may be
used solely in connection with this litigation. Accordingly,
Buckingham may not resist providing testimony about or
disclosing a copy of the agreement on the grounds that doing
so would violate a confidentiality provision.
Buckingham's Motion to Amend
filed his original pro se complaint almost four
years ago on May 22, 2013. (Docket # 1). The complaint
asserted a claim pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq.
(Id.). Following a conference pursuant to Rule 16(b)
of the Federal Rules of Civil Procedure, on October 9, 2013,
this Court issued a scheduling order that set a deadline of
January 31, 2014, for any motions to amend the pleadings or
to add parties. (Docket # 11). Although this Court
subsequently extended some of the deadlines in the original
scheduling order, the deadline to amend the pleadings was
never extended. (Docket ## 36, 71).
1, 2016, Buckingham filed an amended complaint. (Docket #
94). By Order dated June 7, 2016, the Court determined that
Buckingham's filing violated Rule 15 of the Federal Rules
of Civil Procedure, which requires a movant either to seek
leave of the court or obtain consent of the defendant prior
to amending his complaint. (See Docket # 95 (citing
Fed.R.Civ.P. 15(a)(2))). In addition, the Court held that
Buckingham's filing, which was unaccompanied by the
required motion, did not demonstrate good cause under Rule 16
to amend his complaint after the deadline set by the Court.
(See Id. (citing Fed.R.Civ.P. 16(b)(4))).
Court set a deadline of July 7, 2016, for Buckingham to file
the required motion seeking leave to amend his complaint.
(Id.). The Court instructed Buckingham:
In the motion, Buckingham must demonstrate the reasons why
any new claims or factual allegations were not included in
his original complaint. If he claims he did not know of the
facts underlying those claims and allegations at the time the
deadline for filing motions to amend expired, he should
explain when and how he learned those facts and what efforts
he made through discovery or otherwise to learn them. He must
also demonstrate that the new claims ...