United States District Court, S.D. New York
ORDER ADOPTING R&R IN PART & ORDER TO SHOW
KENNETH M. KARAS, United States District Judge.
April 24, 2017, Magistrate Judge Paul E. Davison issued a
Report & Recommendation (the "R&R")
recommending dismissal of Plaintiff s claims against
Defendants Miano and Mergendahl pursuant to Federal Rule of
Civil Procedure 37(b)(2)(A) for Plaintiffs repeated failure
to comply with court-ordered discovery. For the reasons to
follow, the Court adopts Judge Davison's recommendation
district court reviewing a report and recommendation
addressing a dispositive motion "may accept, reject, or
modify, in whole or in part, the findings and recommendations
made by the magistrate judge." 28 U-S.C §
636(b)(1). Pursuant to § 636(b)(1) and Federal Rule of
Civil Procedure 72(b)(2), parties may submit objections to
the magistrate judge's report and recommendation. The
objections must be "specific" and "written,
" and must be made "[w]ithin 14 days after being
served with a copy of the recommended disposition."
Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. §
party submits timely objections to a report and
recommendation, the district court reviews de novo the
portions of the report and recommendation to which the party
objected. See 28 U.S.C- § 636(b)(1);
Fed.R.Civ.P. 72(b)(3). The district court "may adopt
those portions of the .. . report [and recommendation] to
which no 'specific written objection' is made, so
long as the factual and legal bases supporting the findings
and conclusions set forth in those sections are not clearly
erroneous or contrary to law." Eisenberg v. New Eng.
Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y.
2008) (quoting Fed.R.Civ.P. 72(b)(2)).
factual and procedural history of this case is set forth in
the R&R. (See R. & R. 2-7 (Dkt. No. 142).)
In short, Plaintiff initiated this case in July of 2012,
(see Dkt. No. 1), and little progress has been made
since then. Since January 2017, Plaintiff has failed, despite
being given multiple opportunities, to respond to any of
Defendants' discovery requests. What is more, Plaintiff
has admitted his delinquency twice in court, but has failed
to cure those defects after being ordered to do so. Most
recently, at a conference before Judge Davison on April 3,
2017, Plaintiff admitted that he had not yet responded to the
discovery requests, but promised to do so by the end of the
week. (See Tr. 3-4.) Later that week, however,
Plaintiff wrote a letter insisting that he had already
submitted his responses to the Court, a contention that had
already twice been rejected by Judge Davison on the record
without protest from Plaintiff. (See Dkt. No. 136.)
Defendants Miano and Mergendahl thereafter filed a letter
requesting dismissal of the Action against them for
Plaintiffs failure to comply with discovery obligations.
(See Dkt. No. 137.) Judge Davison gave Plaintiff a
week to respond to Defendants' application, (see
Dkt. No. 138), but Plaintiff did not file anything.
Thereafter, on April 24, 2017, Judge Davison issued the
R&R, recommending dismissal.
he did not submit any letter in response to Defendants'
request to dismiss the case, Plaintiff did submit objections
to the R&R. (See Pis. Answer to R. & R. and
Resp. to Defs. Claims ("Objs.") (Dkt. No. 152).)
The objections, however, largely relate to the merits of this
and other suits in which Plaintiff is a party. Only two
passages relate to Plaintiffs discovery delinquencies. First,
The Plaintiff since instituting this action has tried not to
be late or tardy in answering any part of Defendants
responses to this complaint.
1.) Second, Plaintiff writes:
At all times since this case was first filed in 2012 I,
Robert Hudson Plaintiff have tried never to be tardy or late
with a response.
The Plaintiffs Court ordered Fourth Amendment Complaint with
Plaintiffs answer to Defendants Initial Disclosures Requests
pursuant to N.Y.S. Attorney General Rule 26(A)(1)of Federal
Rules of Civil Procedure with 18 exhibits was timely
submitted to the court on February 3, 2017. Plaintiff
properly and clearly responded to the courts requests. It
made no reason for Plaintiff to testify at Discovery and
again testify at the Trial by Jury Demanded when Plaintiff
has already submitted testimony documentation and (FOIL)
4.) These objections are without merit.
it is not enough for Plaintiff to "answer" or
"respon[d]" to Defendants' filings, he must
comply with the Federal Rules of Civil Procedure by supplying
the discovery information that he is obliged to produce. The
Court agrees with Plaintiff that there has been no shortage
of filings and responses on his part, but Defendants will not
be forced to litigate a case without the benefit of
discovery, no matter how meritorious Plaintiff believes his
case is. And while the Court appreciates that pro se
plaintiffs "are afforded special solicitude in the
Second Circuit, that solicitude does not extend to the
willful, obstinate refusal to play by the basic rules of the
system upon whose very power the plaintiff is calling to
vindicate his rights." Baker v. Ace Advertisers'
Serv., Inc., 153 F.R.D. 38, 40 (S.D.N.Y. 1992) (internal
quotation marks omitted).
Plaintiff has already been informed that his submission on
February 3, 2017, docketed as number 132, is insufficient to
respond to Defendants' discovery requests, and he has
never protested that conclusion when in court. (See
R. & R. 3-6.) A party's willfulness is one factor to
consider in whether dismissal is an appropriate sanction, and
Plaintiff has demonstrated that his defiance of his discovery
obligations is not a consequence of negligence or
unfamiliarity with court procedures, but of willfulness.
Dismissal is wholly appropriate in such circumstances.
See Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298,
303 (2d Cir. 2009) (affirming dismissal where the plaintiffs
"communications with the Magistrate Judge and opposing
counsel indicate that he understood the Magistrate
Judge's discovery orders and realized that timely
compliance was expected").
Plaintiffs objections leave little doubt that lesser
sanctions would not be effective. He has not only doubled
down on his argument that he has already fulfilled his
discovery obligations, he has now also implied that will not
give any further testimony in this matter until trial.
(See Objs. 4.) But it is the Court and the Federal
Rules of Civil Procedure, not Plaintiff, that determine what
discovery will take place prior to trial. Plaintiff has made