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Buckingham v. Lewis General Tires, Inc.

United States District Court, W.D. New York

March 14, 2017

WALTER BUCKINGHAM Plaintiff,
v.
LEWIS GENERAL TIRES, INC., Defendant.

          DECISION & ORDER

          MARIAN W. PAYSON, UNITED STATES MAGISTRATE JUDGE

         Currently 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.

         I. LGT's Motion for Sanctions

         Pending 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. (Id.).

         On June 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 review. (Id.).

         Buckingham 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.).

         In the 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 Cir. 1990)).

         On the 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.

         Buckingham 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.

         II. Buckingham's Motion to Amend

         Plaintiff 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).

         On June 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))).

         The 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 ...

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