United States District Court, W.D. New York
GWENDOLYN COLE-HOOVER, As Administratrix of the Estate of David Cole, Plaintiff,
UNITED STATES OF AMERICA, Defendants.
DECISION AND ORDER
WILLIAM M. SKRETNY, UNITED STATES DISTRICT JUDGE
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.
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.
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.)
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.
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.)
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.,
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
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.)
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 ¶¶
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
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., ...