Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shim-Larkin v. City of New York

United States District Court, S.D. New York

June 28, 2018

HEENA SHIM-LARKIN, Plaintiff,
v.
CITY OF NEW YORK, Defendant.

          MEMORANDUM AND ORDER

          KEVIN NATHANIEL FOX, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Before the Court is plaintiff pro se Heena Shim-Larkin's ("Shim-Larkin") motion for an order: (1) compelling the defendant "to answer Plaintiffs first set of interrogatories under Fed.R.Civ.P. 37(a)(3)(B)(iii)"; (2) entering "judgment as to liability against Defendant and for other sanctions on Defendant and its counsels under Fed.R.Civ.P. 26(g)(3), 37(b)(2)(A), 37(d)(1)(A)(ii), 28 U.S.C. § 1927, and the Court's inherent power"; and (3) staying "further proceedings under Fed.R.Civ.P. 37(b)(2)(A)(iv) until Plaintiffs first set of interrogatories is fully answered." The defendant opposes the motion.

         BACKGROUND

         Shim-Larkin served her first set of interrogatories on April 25, 2017, and, thereafter, when the defendant failed to answer the interrogatories, she contacted the defendant on multiple occasions advising that she would seek the Court's intervention if the defendant did not answer the interrogatories. Subsequently, Shim-Larkin wrote to the Court seeking a pre-motion conference preparatory to filing a motion to compel the defendant to answer the interrogatories. The request for the conference was granted and the conference was held on August 3, 2017. According to Shim-Larkin, 30 minutes before the conference was scheduled to commence the defendant transmitted to her, via an email message, answers and objections to her first set of interrogatories. As a consequence, the August 3, 2017 conference was adjourned to August 22, 2017, to permit Shim-Larkin the opportunity to review the defendant's responses to her interrogatories.

         Shim-Larkin recalls that several hours before the August 22, 2017 conference was to commence, the defendant sent supplemental answers and objections to her first set of interrogatories, via an email message. Shim-Larkin refers to the August 22, 2017 supplemental response to her interrogatories as the defendant's "Second Response." The Court determined that, owing to the defendant's untimely responses to the interrogatories, the objections asserted by the defendant to Shim-Larkin's interrogatories were waived, pursuant to Fed.R.Civ.P. 33(b)(4). The Court directed the defendant to provide Shim-Larkin with answers to her first set of interrogatories on or before August 25, 2017, without asserting any objections. The Court memorialized that directive in an order dated August 23, 2017. See Docket Entry No. 119.

         According to Shim-Larkin, on August 25, 2017, the defendant sent an email message to her containing what Shim-Larkin characterizes as the defendant's "Third Response" to her first set of interrogatories. Shim-Larkin's review of the defendant's Third Response to her interrogatories led her to conclude that the "Defendant still failed to answer Interrogatories." Therefore, on September 28, 2017, Shim-Larkin sent a "meet and confer letter" to the defendant "explaining in detail what informations [sic] were not provided in [the defendant's] Third Response" to her interrogatories. Shim-Larkin maintains that, the defendant's counsel responded to her September 28, 2017 letter, via an October 13, 2017 email message, contending that the defendant had complied with the Federal Rules of Civil Procedure "without referring [to the] specific part of FRCP" on which it was relying and, further, asserted "multiple frivolous objections."

         Shim-Larkin recalls that she contacted the defendant's counsel, via telephone, on October 16, 2017. Shim-Larkin alleges that during that telephone conversation, the defendant's counsel "gave evasive answers repeatedly to Plaintiffs questions" and Shim-Larkin advised the defendant's counsel that the "Plaintiff would seek sanctions" from the Court. Shim-Larkin asserts that after the telephone conversation concluded, on October 16, 2017, the defendant's counsel sent her an email message indicating counsel's "preference" that all future communications between her and Shim-Larkin concerning discovery-related matters be conducted through email messages or letters; telephone conversations, Shim-Larkin was advised, would be had only during conferences with the Court or when they pertain to adjournments or requests for extensions of time.

         The Court convened a telephonic conference with Shim-Larkin and counsel to the defendant on November 21, 2017. During that conference, Shim-Larkin was authorized to file a motion to compel the defendant to provide answers to her first set of interrogatories. The instant motion followed.

         THE MOTION

         Plaintiffs Contentions

         Interrogatory No. 1 of Shim-Larkin's first set of interrogatories sought

[t]he full name, title, address, phone number and email address for all current or former employees of Defendant who interacted with Plaintiff concerning her work during the summer of 2015. If the person is not currently working for Defendant, provide the last known address, phone number and email address. These employees include but are not limited to: Jennifer Navarro; Allison (She works at Chelsea lifeguard school. Possible last name is Jerriahian.); Dennis (Filter Plant Operator who worked Thursday through Monday at Tompkins Square Park mini pool during the 2015 summer.); Gio (Filter Plant Operator who worked on Tuesday at Tompkins Square Park mini pool during the 2015 summer.); Female Filter Plant Operator who worked on Wednesdays at Tompkins Square Park mini pool during the 2015 summer; Vladimir (Chief Lifeguard who used to visit Tompkins Square Park mini pool during the 2015 summer. Possible last name is Rodriguez.); JR (Martin Kravitz's supervisor); Nicole Pizarro; PAA Demuth, Jasmine; PAA Demuth's supervisor who was at the 13th precinct next to PAA Demuth when Plaintiff was interacting with PAA Demuth (Possibly a sergeant, Caucasian male); the female employee of New York City Department of Education who visited Tompkins Square park on or about August 18, 2015.

         Shim-Larkin contends that the "Defendant did not provide any information concerning PAA [Jasmine] Demuth's [("PAA Demuth")] supervisor" and "did not provide any information concerning the female employee of New York City Department of Education who visited Tompkins Square park on or about August 18, 2015." Furthermore, Shim-Larkin contends that the defendant's First and Second Responses to her interrogatories contain "general objections and the fifth general objection" states that the defendant "objects in the entirety to the requests to the extent that they seek the home address of, or personnel information of, individuals identified by the defendant in response to the requests." Shim-Larkin maintains that the objections asserted by the defendant were waived, as they were not asserted timely, and are in contravention of the Court's August 23, 2017 order directing the defendant to respond to the plaintiffs interrogatories without asserting any objections owing to the defendant's failure to provide timely answers and objections to the interrogatories, after they were served, as required by Rules 33(b)(2) and 33(b)(4) of the Federal Rules of Civil Procedure.

         Interrogatory No. 2 of Shim-Larkin's first set of interrogatories sought "[t]he full name, title, address, phone number and email address for all persons who had authority to assign and/or transfer a lifeguard of Parks Department to a pool and/or beach in 2015." Shim-Larkin contends that the defendant "failed to provide full title, home address, actual work site, personal cell phone number, work cell phone number, home phone number, or actual work site number or email address for most of the individuals identified in Interrogatory No. 1 and No. 2." In addition, Shim-Larkin maintains that the defendant provided conflicting information regarding the title held by Miguel Morel ("Morel"), the lifeguard who supervised her at the Tompkins Square Mini Pool during the summer of 2015. According to Shim-Larkin, the defendant identified Morel's title as "Summer Seasonal Lifeguard" and as "Lifeguard" which rendered the defendant's response incomplete. In addition, Shim-Larkin contends that the defendant's counsel advised her that a response to the interrogatories that included, inter alia, the email addresses and home addresses Shim-Larkin sought would not be forthcoming because providing such information would not be in consonance with the defendant's "policy."

         Interrogatory No. 3 of Shim-Larkin's first set of interrogatories asked that the defendant "[i]dentify all policies and/or practices concerning assigning and/or transferring a lifeguard to a pool during the summer of 2015. (If there are written policies and/or practices, please attach all)." Shim-Larkin asserts that in its First Response to her Interrogatory No. 3, the defendant identified only one document, a "Union Contract bearing Bates No. DEFENDANT'S 0311." However, in the defendant's Second and Third Responses to the same interrogatory, the defendant identified two additional documents as being responsive to the interrogatory: the defendant's Department of Parks and Recreation equal employment opportunity policy and a "Reasonable Accommodation Form." Shim-Larkin maintains that neither document explains the defendant's lifeguard assignment and transfer practices and, moreover, the equal employment opportunity policy does not "even mention assignment or transfer to a job location." Shim-Larkin contends that the defendant failed to indicate which page of the equal employment opportunity policy contains information responsive to Interrogatory No. 3, which is violative of Rule 33(d)(1) of the Federal Rules of Civil Procedure, and never explained the "actual practice" it employs when transferring lifeguards among its facilities. Furthermore, according to Shim-Larkin, when she requested a "complete answer" to Interrogatory No. 3, the defendant objected relying on Local Civil Rule 33.3 of this court.[1] In response, Shim-Larkin, through an email message, explained to the defendant that, due to her indigency, an interrogatory is the "more practical method of obtaining information" for her, not a request for production or a deposition. More importantly, Shim-Larkin contends that, inasmuch as the defendant had already waived its ability to assert objections to her interrogatories, pursuant to Fed.R.Civ.P. 33(b)(4), and in light of the Court's August 23, 2017 order directing the defendant to respond to her interrogatories without objections, the defendant's assertion of an objection to Interrogatory No. 3, premised on Local Civil Rule 33.3, was improper.

         Interrogatory No. 4 of Shim-Larkin's first set of interrogatories requested that the defendant "[l]ist all phone numbers, device IDs, names of the carriers of the phone(s) which Martin Kravitzf, the defendant's assistant lifeguard coordinator, ] used when he used Remind during the 2015 summer." Shim-Larkin contends, that in the defendant's First Response to Interrogatory No. 4, the defendant provided information about "Kravitz's work cell phone only." However, in the defendant's Second and Third Responses to the same interrogatory, the defendant answered that "the only phone on which Martin Kravitz used Remind during the Summer of 2015 was on his personal LG cell phone." Shim-Larkin maintains that the defendant "failed to provide [the device's] ID," and, when she requested a complete answer to Interrogatory No. 4, the defendant objected relying upon Local Civil Rule 33.3 of this court. The defendant did this, Shim-Larkin asserts, notwithstanding that its ability to assert objections to the interrogatories had been waived previously under Fed.R.Civ.P. 33(b)(4) and barred perforce of the Court's August 23, 2017 order.

         Interrogatory No. 5 of Shim-Larkin's first set of interrogatories requested that the defendant "[i]dentify all policies and/or practices concerning how lifeguards chose and/or were given Regular Day Off(s) for all pools and/or beaches owned or maintained by the City of New York or the Parks Department during the summer of 2015. (If there are written policies and/or practices, please attach all.)" Shim-Larkin contends that the defendant gave an evasive answer to this interrogatory by failing to address or even reference the phrase regular day off preferring, instead, to discuss in its answer the scheduling of lifeguards and how conflicts respecting the shift preferences of lifeguards are resolved. Furthermore, Shim-Larkin maintains that the defendant asserted objections to Interrogatory No. 5 although, as noted above, all objections had been waived and barred previously.

         Interrogatory No. 6 of Shim-Larkin's first set of interrogatories asked the defendant to "[s]tate whether each of Martin Kravitz, Javier Rodriguez (Assistant Lifeguard Coordinator in 2015 Summer) and Vladimir (Chief Lifeguard in 2015 summer) was informed of the existence of the video of Plaintiff which was taken on or about August 4, 2015 by Miguel Morel. If not, explain why not, and if so, state whether each of them (a) received a copy of the video, if so, in what way; (b) was provided an opportunity to review the video; and (c) reviewed the video. Please send the video to Plaintiffs email." Shim-Larkin asserts that in its First, Second and Third Responses to Interrogatory No. 6, the defendant indicated that it was searching for information to answer the interrogatory. In addition, the defendant also objected to Interrogatory No. 6, via letters prepared by its counsel to supplement the defendant's response to Interrogatory No. 6, although the defendant had waived its ability to assert objections previously, pursuant to Fed.R.Civ.P. 33(b)(4), and was barred from asserting objections by virtue of the Court's August 23, 2017 order. Notwithstanding the purported objections, the defendant disclosed a copy of a video denominated "DEFENDANT'S VIDEO1." The defendant also revealed that Javier Rodriguez never viewed the video and that Morel sent the video to Vladimir Rodriguez who viewed it.

         Interrogatory No. 7 of Shim-Larkin's first set of interrogatories asked the defendant to "[i]dentify all policies and/or practices concerning 'Burning' from summer of 2015 to the present, including but not limited to: define 'Burning'; when 'Burning' is used; whether 'Burning' is permitted or not, if it is, in what situation it is permitted; what efforts are being taken to prevent 'Burning' where it is not permitted; all disciplinary actions taken when it is used when it is not permitted. (If there are written policies and/or practices, please attach all.)" Shim-Larkin contends that the defendant failed to: (1) define Burning; (2) state what actions it takes to prevent it, or (3) state all disciplinary actions taken when Burning occurs. Shim-Larkin maintains that, in responding to Interrogatory No. 7, through its Second and Third Responses to her first set of interrogatories, the defendant directed her to the Department of Parks and Recreations Standards of Conduct Disciplinary Procedures Manual. According to Shim-Larkin, neither the standards of conduct nor the disciplinary procedures manual mentions Burning. Furthermore, the defendant failed to identify which pages of the standards of conduct document or its disciplinary procedures manual respond to Interrogatory No. 7; this failure, according to Shim-Larkin, is a violation of Fed.R.Civ.P. 33(d)(1).

         Interrogatory No. 8 of Shim-Larkin's first set of interrogatories asked the defendant to "[i]dentify all date [sic] on which Mr. Kravitz took any photo(s) of Heena Shim in a bathing suit and list the names, titles, last known addresses, phone numbers and email addresses of all people with whom he shared the photo(s) with, whether by showing or transmitting the photo [to] them or by mentioning the photo(s) to them. Attach copies of all such photos." Shim-Larkin contends that in responding to Interrogatory No. 8, the defendant indicated that Kravitz was uncertain whether he took a photograph of Shim-Larkin's lifeguard training school graduation class and was unable to locate such a photograph. Shim-Larkin maintains that the defendant failed to indicate whether on other occasions a photograph(s) of her was taken. Therefore, the defendant's answer to Interrogatory No. 8 is evasive and incomplete. Shim-Larkin recalls that when she sought to obtain a complete answer to Interrogatory No. 8 from the defendant it objected relying on Local Civil Rule 33.3 of this court. However, Shim-Larkin asserts that, inasmuch as the defendant's ability to assert that objection was waived, pursuant to Fed.R.Civ.P. 33(b)(4), and barred by the Court's August 23, 2017 order, the defendant's objection to Interrogatory No. 8 is meritless.

         Shim-Larkin contends that the defendant and its counsel failed "from the very outset of this action" to fulfill their obligations under the rules of discovery. Shim-Larkin maintains that the defendant and its counsel failed to: (1) make reasonable inquiries before signing and filing documents with the court; or (2) confer orally with her to resolve discovery disputes. According to Shim-Larkin, these failures by the defendant and its counsel multiplied the proceedings unreasonably and vexatiously, thus necessitating Court intervention repeatedly. Shim-Larkin asserts that she has been prejudiced by the conduct of the defendant and its counsel which has denied her the opportunity to: 1) formulate a litigation strategy in an organized fashion; 2) determine which witnesses to interview and depose; and 3) obtain information to prove her case. Shim-Larkin maintains that the conduct of the defendant and its counsel was willful and undertaken in bad faith warranting the imposition of the sanctions she has requested including an award of the costs and expenses she has incurred due to the defendants "discovery abuse." According to Shim-Larkin, the imposition of sanctions less harsh than those she seeks would not be adequate to penalize the defendant and its counsel or to deter them and others from engaging in similar conduct in the future.

         Defendant's Contentions

         The defendant maintains that it "complied with the Court's August 23, 2017 Order and, thus, Plaintiffs request to compel responses to Interrogatories is moot, as Defendant provided Plaintiff with responses to Interrogatories without objection," through its August 24, 2017 supplement to its interrogatory responses. The defendant contends that with respect to Interrogatory Nos. 1 and 2, it complied with Local Civil Rule 26.3(c)(3) of this court by providing Shim-Larkin the business address and telephone number for each person listed in those interrogatories "for whom [Shim-Larkin] requested identifying information." According to the defendant that information "is sufficient to assist Plaintiff in her investigation" of the case. The defendant also contends that during an October 13, 2017 meet and confer telephone conversation with Shim-Larkin, the defendant learned from her that the person Shim-Larkin suggested, in Interrogatory No. 1, was PAA Demuth's supervisor wore a white shirt; this indicated to the defendant that the person "was likely a lieutenant." During that same telephone conversation, the defendant learned from Shim-Larkin that the person whom she alleged was an employee of the New York City Department of Education and was at the Tompkins Square Mini Pool, was "a representative of a summer lunch program at Tompkins Square Mini Pool." Armed with the information Shim-Larkin provided to the defendant on October 13, 2017, which clarified what were, for the defendant, vague and ambiguous descriptors for the presumed supervisor and the summer lunch program ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.