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Leibovitz v. City of New York

United States District Court, S.D. New York

April 6, 2017

THE CITY OF NEW YORK, et al., Defendants.

          Etan Liebovitz, Angel M. Guardiola II, Esq. Michael A. Berg, Esq. Assistant Attorneys General



         Etan 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.

         The 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.


         The 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.

         Following 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).

         On 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.).

         Mr. 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)).

         On 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.


         Where a 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.”).

         Discovery 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).

         When 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, ...

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