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Cole-Hoover v. United States

United States District Court, W.D. New York

April 21, 2017

GWENDOLYN COLE-HOOVER, As Administratrix of the Estate of David Cole, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendants.

          DECISION AND ORDER

          WILLIAM M. SKRETNY, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         In this action, pro se Plaintiff Gwendolyn Cole-Hoover, as administratrix of her brother's estate, asserts medical-malpractice claims against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2679(a). Plaintiff alleges that the Veterans Administration Hospital in Manhattan, N.Y., was negligent in the care and treatment of her brother, David Cole, and that such treatment resulted in his death.

         Presently before this Court is Defendant's Motion to Dismiss under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute, and under Rule 37(b) for failure to comply with court orders. For the reasons stated below, Defendant's motion is granted on both grounds.

         II. BACKGROUND

         Plaintiff filed this action on June 4, 2014. (Docket No. 1.) At that time, she was represented by counsel. Defendant filed its answer to the complaint on August 8, 2014. (Docket No. 5.) Counsel litigated the case until December 3, 2015, when Plaintiff's counsel moved to withdraw on the basis of difficulty communicating with and gaining the cooperation of Plaintiff. (Docket No. 27.) On January 14, 2016, the Honorable Leslie G. Foschio, United States Magistrate Judge, granted Plaintiff's counsel's motion to withdraw and determined that Plaintiff would proceed pro se. (Docket No. 32.)

         Plaintiff is an experienced pro se litigator, having pursued at least seven actions in this district as well as actions in other federal and state courts. (See Declaration of Mary K. Roach (“Roach Decl.”), ¶¶ 14, 15.). After her attorney withdrew, Plaintiff litigated discovery issues before Judge Foschio, who presided over all pretrial matters. Plaintiff, however, did not consistently adhere to Judge Foschio's directives.

         On January 15, 2016, Judge Foschio directed Plaintiff to file a response by February 12, 2016, to a Motion to Compel filed by Defendant. (See Docket No. 33.) Plaintiff disregarded this directive and never responded to the Defendant's motion, which Judge Foschio granted on February 23, 2016. (See Docket No. 36.)

         In his February 23, 2016 decision, Judge Foschio ordered Plaintiff to respond to certain interrogatories and deposition questions. (Id.) Defendant thereafter attempted to obtain the ordered information and schedule Plaintiff's further deposition testimony. Plaintiff, however, never produced the required discovery nor did she communicate with Defendant to schedule her deposition. (Roach Decl., ¶¶ 23-25.)

         Due to Plaintiff's intransigence, Defendant filed a Second Motion to Compel on April 1, 2016, again seeking to gain Plaintiff's compliance with its discovery demands. (See Docket No. 37.) Judge Foschio directed Plaintiff to respond to Defendant's motion by April 15, 2016. (Docket No. 40.) Plaintiff failed to respond as directed.

         On June 21, 2016, Judge Foschio granted Defendant's Second Motion to Compel and directed Plaintiff to comply with the discovery demands at issue no later than June 30, 2016. (Docket No. 52.) Judge Foschio also specifically warned Plaintiff, in capital letters, that “failure to comply with this decision and order may subject Plaintiff to sanctions pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 37(d)(1)(A), including dismissal of this action.” (Id.)

         Following Judge Foschio's June 21, 2016 Order, Defendant scheduled Plaintiff's deposition and sent her notice of the same. (Roach Decl., ¶ 30.) Plaintiff did not advise Defendant that the scheduled deposition posed a conflict for her or otherwise communicate difficulty with the date. (Id. at ¶ 31.) Plaintiff nonetheless failed to appear for her deposition nor did she provide discovery responses by the deadline set by Judge Foschio. (Id. at ¶¶ 33, 34.)

         On July 5, 2016, Defendant filed yet a Third Motion to Compel, this one seeking an Order requiring Plaintiff to make her expert disclosures, which were due May 2, 2016. (Docket No. 54; Roach Decl., ¶ 38.) Defendant also filed a Motion for Sanctions. (Docket No. 56.) Judge Foschio directed Plaintiff to respond to both motions by August 4, 2016, and again warned her that “failure to respond to this order may result in sanctions including dismissal of this action.” (Docket No. 59.) Plaintiff failed to respond as directed and failed to appear at oral argument. (Docket No. 61.)

         On October 17, 2016, Judge Foschio granted Defendant's Third Motion to Compel and directed that Plaintiff pay the costs of the court reporter retained by Defendant for Plaintiff's deposition. (Docket Nos. 70, 71.) In his decision, Judge Foschio noted Plaintiff's repeated failures to comply with court orders and again warned her that “failure to comply with the court's Order may result in . . . this action be[ing] dismissed with prejudice.” (Docket Nos. 70, 71.) Plaintiff thereafter failed to provide the discovery ordered by Judge Foschio and failed to pay the costs of the court reporter as directed. (Roach Decl., ...


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