United States District Court, S.D. New York
Liebovitz, Angel M. Guardiola II, Esq. Michael A. Berg, Esq.
Assistant Attorneys General
REPORT AND RECOMMENDATION
C. FRANCIS IV, UNITED STATES MAGISTRATE JUDGE
Leibovitz, proceeding pro se, originally brought
this action against a variety of city and state officials and
entities; most claims have been dismissed. The remaining
claims are asserted against three defendants -- New York
State Court Officers Brian Daley, Nicole Tusa, and Salvatore
Rapaglia (the "State Defendants") -- and arise out
of the removal of Mr. Leibovitz from a courtroom during the
sentencing hearing following his conviction for aggravated
harassment in the second degree.
State Defendants now move pursuant to Rule 37(b)(2)(A) of the
Federal Rules of Civil Procedure for sanctions based on the
plaintiff's failure to comply with discovery orders. Mr.
Leibovitz did not respond to the motion. For the reasons that
follow, I recommend that the motion be granted and the claims
against the State Defendants be dismissed.
plaintiff's remaining claims encompass allegations that
Officer Rapaglia used excessive force and committed state law
assault and battery against him in the course of removing him
from the courtroom during sentencing and that Officers Daley
and Tusa failed to intervene to prevent the violation of the
plaintiff's rights by Officer Rapaglia.
a scheduling conference on August 22, 2016, I issued a case
management order requiring interrogatories and document
requests to be served by September 21, 2016, and responded to
by October 21, 2016. (Order dated Aug. 22, 2016, ¶
8(a)-(b)). In addition, at the conference, Mr. Leibovitz
indicated that he would promptly provide counsel for the
State Defendants with executed HIPAA-compliant authorizations
for the release of information from his health care
providers. (Declaration of Angel M. Guardiola II dated Feb.
13, 2017 (“Guardiola Decl.”), ¶ 4).
September 20, 2016, counsel for the State Defendants
contacted the plaintiff by email to ask that he return the
executed medical releases, and Mr. Leibovitz replied that he
was “working on” them. (Guardiola Decl., ¶
7; Email string dated Sept. 20, 2016, attached as Exh. F to
Guadiola Decl.). The next day, the State Defendants served
the plaintiff with interrogatories and document requests and
included an additional copy of the requested HIPAA
authorization. (Guardiola Decl., ¶ 8; State
Defendants' First Set of Interrogatories and Document
Requests (“Def. Disc. Req.”) and Authorization
for Release of Health Information Pursuant to HIPAA Form,
attached as Exh. G to Guardiola Decl.).
Leibovitz never produced the HIPAA authorization, nor did he
respond to the interrogatories and document requests.
(Guardiola Decl., ¶¶ 11-14). After having been
alerted to the plaintiff's breach of his discovery
obligations, I issued two orders on November 15, 2016. In a
memorandum endorsement on an October 31, 2016 letter from
counsel for the State Defendants, I directed the plaintiff to
provide complete responses to the interrogatories and
document requests by November 30, 2016. (Memorandum
Endorsement dated Nov. 15, 2016 (Docket no. 142)). Similarly,
I endorsed a letter from counsel for the State Defendants
dated September 30, 2016, stating in pertinent part,
“Plaintiff shall provide the requested authorizations
no later than November 30, 2016, failing which he will be
subject to sanctions that may include dismissal of his
claims.” (Memorandum Endorsement dated Nov. 15, 2016
(Docket no. 144)).
December 20, 2016, counsel for the State Defendants advised
me that the plaintiff had failed to comply with my orders.
(Letter of Angel M. Guardiola II dated Dec. 20, 2016). The
next day I endorsed that letter with the following directive:
“Plaintiff shall fully comply with my November 15, 2016
orders by December 30, 2016. Should he fail to do so,
defendants may promptly move for sanctions, including
dismissal of the complaint.” (Memorandum Endorsement
dated Dec. 21, 2017). Again, Mr. Leibovitz did not comply.
The State Defendants then filed this motion.
party fails to obey a discovery order, the court may (1)
direct that matters in the litigation be taken as established
by the prevailing party, (2) prohibit the sanctioned party
from supporting or opposing claims or defenses or from
introducing evidence, (3) strike pleadings in whole or in
part, (4) stay further proceedings until the order is obeyed,
(5) enter judgment against the disobedient party, or (6)
require the disobedient party or her attorney to pay the
reasonable expenses caused by the failure. Fed.R.Civ.P.
37(b)(2)(A), (C); see also Doe v. Delta Airlines
Inc., __ F. App'x __, __, 2016 WL 6989793, at *2 (2d
Cir. 2016); Agiwal v. Mid Island Mortgage Corp., 555
F.3d 298, 302 (2d Cir. 2009) (noting that party's failure
to comply with court-ordered discovery may result in
terminating sanction); Daval Steel Products, a Division
of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357,
1365 (2d Cir. 1991) (“When a party seeks to frustrate
[discovery] by disobeying discovery orders, thereby
preventing disclosure of facts essential to an adjudication
on the merits, severe sanctions are appropriate.”).
sanctions serve a three-fold purpose: (1) to ensure that a
party will not benefit from its failure to comply, (2) to
obtain compliance with the court's orders, and (3) to
deter noncompliance, both in the particular case and in
litigation in general. Southern New England Telephone Co.
v. Global NAPs Inc., 624 F.3d 123, 149 (2d Cir. 2010);
Update Art, Inc. v. Modiin Publishing, Ltd., 843
F.2d 67, 71 (2d Cir. 1988); Cine Forty-Second Street
Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d
1062, 1066 (2d Cir. 1979). Harsh sanctions such as dismissal
or default are reserved for extreme situations. See
Agiwal, 555 F.3d at 302; see also Shcherbakovskiy v.
Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007)
(noting that “the severity of sanction must be
commensurate with the non-compliance”); Royal Park
Investments SA/NV v. U.S. Bank National Association, __
F.R.D. __, __, 2016 WL 6705773, at *3 (S.D.N.Y. 2016).
determining the appropriate sanction to impose under Rule 37,
courts in this Circuit weigh several factors, including
“(1) the willfulness of the non-compliant party or the
reason for noncompliance; (2) the efficacy of lesser
sanctions; (3) the duration of the period of noncompliance,
and (4) whether the non-compliant party had been warned of
the consequences of . . . noncompliance.” World
Wide Polymers, Inc. v. Shinkong SyntheticFibers
Corp., 694 F.3d 155, 159 (2d Cir. 2012) (alteration in
original) (quoting Agiwal, 555 F.3d at 302);
accord Delta Airlines, __ F. App'x at __, 2016
WL 6989793, at *2; Royal Park Investments, __ F.R.D.
at __, 2016 WL 6705773, at *3. No one factor alone is
dispositive. World Wide Polymers, ...