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Hurley v. Tozzer, Ltd.

United States District Court, S.D. New York

March 21, 2017

FREDKIEY HURLEY, Plaintiff,
v.
TOZZER, LTD. d/b/a/ NIAGARA, a New York for profit corporation, Defendant.

          MEMORANDUM DECISION AND ORDER

          GEORGE B. DANIELS, United States District Judge.

         Plaintiff Fredkiey Hurley initially filed this action on April 9, 2015 seeking a declaration that Defendant's premises violated Title II of the Americans with Disability Act ("ADA"), 42 U.S.C. §§ 12181 et seq., by denying him access to goods or services on Defendant's property. (Compl., ECF No. 1.) On August 10, 2016, Defendant filed a motion to dismiss the action pursuant to Federal Rules of Civil Procedure 37(d)[1] and 41(b) ("Rule 37(d) and 41(b)"). (Def. Mot. to Dismiss ("Def. Mot."), ECF No. 48.) Defendant alleges that "Plaintiff has failed to prosecute the action, failed to comply with orders of the Court, and failed to provide proper responses to Defendant's First Set of Interrogatories and Request for Production of Documents . . ." (Id. at l.)[2]

         This matter was referred to Magistrate Judge Henry Pitman. (ECF No. 9.) Before this Court is Magistrate Judge Pitman's Report and Recommendation, ("Report, " ECF No. 57), recommending that this Court deny Defendant's motion to dismiss. (Id. at 2.)[3] The Report contains no clear error of law and this Court adopts the Report in full.

         I. LEGAL STANDARD

         This Court may accept, reject or modify, in whole or in part, the findings and recommendations set forth within the Report. See 28 U.S.C. § 636(b)(1)(C). When no objections to a Report are made, the Court may adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (citation omitted).

         Magistrate Judge Pitman advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (Report, at 16); see also 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). No party has filed objections.

         II. RULE 37(B) MOTION

         The weighted factors relevant under a 37(b) analysis to determine appropriate sanctions include: "(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficiency of lessor sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant party had been warned of the consequences of. . . noncompliance." Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302-03 (2d Cir. 2009) (quotation marks and citations omitted). The Report properly balanced Defendant's claims under these four factors. First, the Report correctly found that Plaintiffs conduct does not amount to willful noncompliance because Plaintiffs counsel represented that she diligently searched for and produced all documents in Plaintiffs possession, custody, or control that were not lost due to computer malfunctions. (Report, at 9-10.) Second, the Report accurately determined that, although the destroyed documents are only marginally relevant to the claim, no lesser sanction will provide Defendant with the requested discovery documents. (Report, at 10.) Third, the Report properly found that with exception to a six-day delay, Plaintiffs delays with discovery requests have been either with Defendant's consent or leave of the court. (Report, at 10-11.) However, the Report does find that Plaintiff failed to fully comply with discovery deadlines following Judge Pitman's warnings. (Report, at 11.)

         The Report held that Plaintiff failed to allege sufficient facts to justify the extreme sanction of dismissal. (Report, at 11.) This Court finds no clear error with Magistrate Judge Pitman's recommendation that Defendant's motion to dismiss pursuant to Rule 37(b) be denied. (Id.)

         III. RULE 41(B) MOTION

         Two additional considerations applicable to a Rule 41(b) motion are: "(1) whether the defendant is likely to be prejudiced by further delay; and (2) whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard." Martens v. Thomann, 273 F.3d 159, 180 (2d Cir. 2001). The Report properly held that Plaintiffs right to due process and to be heard on his disability claims, the national interest manifested in the ADA in removing barriers to accessibility, and the policy in favor of resolving claims on the merits outweigh the court's interest in alleviating congestion. (Report, at 14-15.) Accordingly, this Court accepts Judge Pitman's recommendation that Defendant's motion to dismiss pursuant to Rule 41(b) be denied. (Id. at 15.)

         IV. CONCLUSION

         Having adopted the Report in full, Defendant's motion to dismiss is DENIED. The Clerk of Court is directed ...


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