OPINION AND ORDER

SHIRA SCHEINDLIN, District Judge

I. INTRODUCTION

Plaintiff is a former employee of AT T Corporation ("AT T"). His employment was terminated in April 2001, after he refused for several weeks to meet with his supervisor and participate in a Performance Improvement Plan. In his Second Amended Complaint, plaintiff alleges, inter alia, that he was discharged because he is an African-American, in violation of section 1981 of the Civil Rights Act. Plaintiff seeks damages against AT T and the individual defendants for wages lost as a result of his termination. In support of his compensatory damages claim, plaintiff has submitted an expert's report valuing such damages at approximately four million dollars.

From the outset of this litigation, defendants have sought discovery from plaintiff regarding his economic damages. Defendants sought discovery of plaintiff's efforts to locate alternative employment and any post-termination earnings. However, plaintiff has repeatedly and intentionally concealed relevant and discoverable information to defendants' prejudice. Plaintiff has: (1) repeatedly been ordered to provide full discovery; (2) been sanctioned with fines and preclusion of evidence; and (3) been warned that continued non-compliance with discovery demands could result in dismissal of his case. Despite these admonitions, plaintiff has

• failed to comply with repeated court orders requiring him to provide complete discovery of his earnings;

• failed to disclose earnings from ReMax Advantage Real Estate ("ReMax") which exceeded $30,000 in 2006, despite numerous written requests and inquiries at his deposition;

• submitted sworn statements in another lawsuit that directly contradict his testimony in this case concerning his place of residence;

• failed to disclose his involvement in numerous other lawsuits in response to questions asked at his deposition;

• denied having accused other individuals of race discrimination when, in fact, he made similar allegations in at least two other lawsuits;

• failed to respond to defendants' request that he identify the source of certain bank account deposits;

• concealed, for years, audiotapes of conversations with AT T managers he secretly recorded in 2001 in which he discusses issues relevant to this case, and did not produce these tapes until the last day of discovery; and

• refused to authorize the release of his 1099 Forms.

Having endured the above litany of discovery abuses, as well as multiple instances of perjury on plaintiff's part, defendants now move pursuant to Federal Rule of Civil Procedure 37 for an order dismissing plaintiff's claim for economic damages; or, alternatively, dismissing his Second Amended Complaint in its entirety. For the reasons that follow, this case is hereby dismissed with prejudice. II. BACKGROUND

This action was initially brought by plaintiff and his wife Cherie Burrell in 2001, by the filing of a Summons and Notice without a Complaint. That case was dismissed approximately one year later due to plaintiffs' refusal, despite repeated court orders, to file and serve a Complaint. The dismissal was affirmed by the Second Circuit. Plaintiffs subsequently instituted the instant action by filing a pro se Complaint on April 10, 2003, which was subsequently dismissed in its entirety as to Cherie Burrell.

Shortly after the Verified Complaint was filed and before any discovery was conducted, plaintiffs retained the law firm of Leeds, Morelli Brown to represent them in this case. That firm ultimately withdrew as counsel. Following plaintiff's separation from counsel, the matter was put on the Court's suspense docket for approximately one year while plaintiff located new counsel. On October 11, 2005, the law firm currently representing plaintiff filed a Notice of Appearance. Upon reinstatement of the case, plaintiff sought to amend the Amended Complaint, representing to the Court that defendants would not be prejudiced by the proposed amendments because they would have the opportunity to take additional discovery. Notwithstanding this representation, after the Court permitted plaintiff to file a Second Amended Complaint, plaintiff refused to be re-deposed.

A. Plaintiff's Failure to Comply with this Court's Orders

Plaintiff has not responded in a timely manner to defendants' request for updated discovery regarding economic damages. In February 2006, defendants requested the following information:

updated documents and information relating to Mr. Burrell's efforts to mitigate his alleged damages since his last deposition in April 2004. In particular, please state whether Mr. Burrell is or has been employed during that time period; specify all income, earnings and/or benefits received by him from any source during that period; and provide all documents in Mr. Burrell's possession reflecting his efforts to mitigate damages. . . .

Plaintiff failed to provide the requested documents and information. Defendants then asked the Court to compel plaintiff to produce the requested discovery and appear for deposition. After conducting a telephone conference, I issued an Order directing plaintiff to produce the requested documents by March 17, 2006, and appear for a limited deposition thereafter "or the Court will consider striking his Second Amended Complaint."

On March 17, 2006, plaintiff served his "updated financial information." This "information" revealed that plaintiff earned roughly $19,000 from ReMax for his work as a realtor in 2005, but showed no earnings whatsoever in 2006. Furthermore, plaintiff refused to make himself available for deposition despite defendants' repeated requests. As a result, defendants moved to dismiss the Second Amended Complaint due to plaintiff's failure to comply with the Court's March 9^th Order. In response to that motion, I held a conference on April 24, 2006, where I again ordered plaintiff to appear for deposition. Because I deemed plaintiff's written discovery response inadequate, I also entered an Order precluding plaintiff from relying, for any purpose, on any documents he failed to produce on or before April 27, 2006.

On April 26, 2006, plaintiff produced additional records and an expert's report estimating plaintiffs economic damages to be approximately four million dollars. Defendants moved to strike this report on the ground that it was untimely. In a letter dated May 1, 2006, plaintiff's counsel argued that the report was timely, and further stated that "as I notified the Court on April 24, 2006, plaintiff has provided all financial information to you."

B. Plaintiff's Deposition Testimony

1. Plaintiff Conceals His Earnings

Plaintiff was eventually re-deposed on April 28, 2004 and May 5, 2006. At the May 5, 2006 deposition, defendants' counsel questioned plaintiff regarding his employment and earnings following his termination from AT T. Plaintiff testified that he earned approximately $19,000 from ReMax in 2005 and that he had no other earnings. In fact, in 2006, plaintiff earned more than $30,000 in commissions from ReMax alone. Plaintiff also failed to disclose, in written discovery or at deposition, that in 2006 he received a commission from Prudential for the sale of a home in the amount of $4,444.37.

2. Plaintiff's Involvement in Other Lawsuits

At plaintiff's initial deposition in 2004, and at the continuation of his deposition in May 2006, defense counsel inquired as to whether plaintiff had been a party to any other lawsuits. In 2004, plaintiff testified that he was a plaintiff in an action against his insurance carrier, State Farm Insurance Company, relating to a fire at his home and that he and his wife were defendants in a foreclosure action filed by a mortgage company. He could not "recall" any other lawsuits. In 2006, defendants' counsel asked plaintiff whether he had been involved in any other litigation beyond that disclosed at his prior deposition. Plaintiff testified that he had not.

Plaintiff, however, has been involved in numerous lawsuits which he failed to disclose in response to questions asked at his deposition. For example, although he testified that he was not a plaintiff in any other lawsuit, plaintiff and his wife and children are plaintiffs in a lawsuit pending in the Eastern District of New York against a shopping mall, The Vitamin Shoppe store, and several individual defendants. Plaintiff also filed suit against Prudential Network of Homes Realty, a real estate agency for which he worked in 2004, for a commission owed on the sale of property.

Plaintiff has also been a defendant in a number of undisclosed law suits. Although he denied ever having been involved in litigation with GMAC Mortgage Corporation, plaintiff was sued by GMAC Mortgage Corporation in the Supreme Court of New York in a foreclosure action relating to a mortgage debt. Plaintiff has also been sued in Queens County in a debtor-creditor action brought by Hillside Van Lines, Inc., another company with whom he denied any involvement. Furthermore, plaintiff has been involved in litigation with the New York State Department of Taxation, a fact he failed to mention at his depositions.

3. Plaintiff's Previous Allegations of Race Discrimination

Plaintiff testified that, outside of this lawsuit, he has never made an accusation of racial discrimination. However, in the Gallant action, plaintiffs alleged that the "[police] officers at the scene had an ulterior motive, namely racial bias . . . for arresting the Burrells and falsely imprisoning them and their children. . . ." Moreover, in his suit against State Farm Insurance Company, plaintiff brought claims of discrimination, alleging that a company representative made racially discriminatory statements.

4. Plaintiff's Testimony Regarding His Residence

Plaintiff has provided contradictory sworn statements regarding his place of residence. In this case, plaintiff testified that he has resided in Queens, New York since his discharge from AT T. In the Gallant case, however, plaintiff submitted an affirmation in opposition to a motion to transfer venue to the Eastern District of New York. In that affirmation, plaintiff stated, under oath, that he moved to Georgia prior to the initiation of that case in August 2005 and that he has been domiciled in Georgia "for some length of time." Plaintiff also sent a letter to the Honorable Denny Chin in connection with the Gallant case in which he stated that "[t]wo years prior to the filing [of] this lawsuit, I relocated to Georgia." Obviously, plaintiff cannot reside in two different cities at the same time. When confronted with this inconsistency, plaintiff neither admitted nor denied that he lied at his May 5, 2006 deposition when he testified that he lived with his wife and children in New York continuously from 2000 to the present.

C. Plaintiff's Failure to Comply with Previous Court Orders

During plaintiff's deposition, defendants' counsel requested certain documents and information related to earnings and mitigation efforts which plaintiff had not previously produced. Defendants reiterated these requests in a letter to plaintiff's counsel which asked for:

(2) All documents reflecting any earnings that plaintiff received as a result of his services to Prudential Real Estate, including pay stubs, IRS Forms 1099, or any other records reflecting such earnings;

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(4) All documents reflecting any earnings that plaintiff received as a result of his services to ReMax Real Estate, including pay stubs, IRS Forms 1099, or any other records reflecting such earnings.

Defendants also requested that plaintiff sign an authorization for the release of tax returns in response to plaintiff's statement that he did not file a tax return for the year 2001 despite being employed by AT T until April 2001. Plaintiff refused to sign the authorization and failed to produce documents relating to his mitigation efforts and earnings.

These issues were addressed by Magistrate Judge Michael H. Dolinger at a conference held on June 20, 2006. Judge Dolinger issued an Order that same day directing plaintiff to produce the requested documents by June 27, 2006. Plaintiff was also directed to sign a release for tax returns that same day. Plaintiff did not comply with the June 20, 2006 Order. Plaintiff did not sign the authorization, nor did he respond to the request for documents reflecting his earnings from Prudential and/or ReMax. In response to the June 20^th Order, plaintiff produced certain bank records, but those records did not reveal the source of any deposits. Accordingly, on June 29, 2006, after receiving the bank records, defendants requested that plaintiff "provide an explanation of the redactions reflected on [the account statements] and the source of the funds deposited, particularly the deposits of $1,050 and $9,600." Defendants also requested documents reflecting earnings from ReMax and Prudential.

Plaintiff still did not produce the outstanding discovery. As a result, defendants again sought the intervention of the Court. On July 14, 2006, Judge Dolinger issued a Memorandum and Order in which he found that

plaintiff Michael Burrell is in plain and unexcused violation of a court order and his discovery obligations. At a June 20, 2006 conference we directed that he execute and provide to defendants within one week the various documents requested by defendants at his May 5 deposition. Those directives were necessary because plaintiff was in default on his obligation to provide these materials. He has now violated both directives.

To put an end to plaintiff's procrastination, the July 14^th Order concluded with the following directive:

1. If plaintiff does not deliver an original release for his tax records and the remaining damages documents to defendants' counsel by 5:00 p.m. on July 18, 2006, we will entertain a prompt application by defendants to preclude plaintiff from offering any evidence at trial as to damages.

In response to the July 14^th Order, plaintiff informed defendants that he "did not have any earnings as a result of his services at Prudential Real Estate. . . ." Plaintiff also stated that he "produced the original 1040 form for the years 2001 to 2005 to defendants by letter dated July 17, 2006." Thus, plaintiff produced the very income tax return (for 2001) that he denied ever existed.

Defendants subsequently received responses to subpoenas that were served upon plaintiff's known employers, and learned that plaintiff had concealed extensive earnings information. Defendants therefore requested that plaintiff sign authorization forms permitting them to obtain from the IRS all Forms 1099 issued to plaintiff. Defendants' review of the documents received in response to the subpoenas revealed three different social security numbers, at least two of which were provided to employers. Defendants therefore requested that plaintiff authorize release of Forms 1099 issued to him under all three numbers. When plaintiff refused, defendants requested that he sign an authorization for release of Forms 1099 issued under his actual social security number. Plaintiff refused to sign this requested authorization.

III. LEGAL STANDARD

Rule 37(b)(2) provides that "[i]f a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . . (C) An order . . . dismissing the action or proceeding or any part thereof. . . ." Under Rule 37, "the severe sanction of dismissal with prejudice may be imposed . . . so long as a warning has been given that noncompliance can result in dismissal." Furthermore, willful or conscious disregard for the discovery process justifies the sanction of dismissal. The Second Circuit has consistently held that courts "`should not shrink from imposing harsh sanctions where . . . they are clearly warranted.'" In this regard, Rule 37 must be a credible deterrent to abusive discovery practices rather than a "`paper tiger.'" Finally, the imposition of sanctions under Rule 37 "is within the discretion of the district court and a decision to dismiss an action for failure to comply with discovery orders will only be reversed if the decision constitutes an abuse of that discretion."

IV. DISCUSSION

A. The Sanction of Dismissal Is Warranted

Courts have found dismissal to be an appropriate Rule 37 sanction under facts similar to those presented here. For example, in Penthouse International v. Playboy Enterprises, the Second Circuit affirmed the dismissal of a libel suit due to plaintiff's failure to produce certain financial records pursuant to court order. In so doing, the court stated:

The financial records which Penthouse refused to furnish were relevant. Its defiance of the order climaxed a sordid pattern of prolonged and vexatious obstruction of legitimate discovery sought by Playboy, in which false testimony, material misrepresentations by [counsel] and foot-dragging were used in an effort to prevent Playboy from getting at Penthouse records that were relevant to the central issue in this case, which was whether Penthouse suffered any [pecuniary] damages. . . .

The court concluded that "[w]here justified, as here, the imposition of sanctions for discovery abuse is essential to the sound administration of justice."

The significance of perjury was addressed in Miller v. Time Warner Communications, a race discrimination case where the plaintiff deliberately erased handwritten information on documents turned over to the defendants. Compounding her misbehavior, plaintiff lied during her deposition when asked about the erased information. The court weighed the seriousness of plaintiff's misconduct and noted that "plaintiff's deliberate attempt to destroy evidence was exacerbated by her repeated perjury on that subject." Emphasizing the importance of truthful testimony, the court stated:

"perjury goes to the very heart of the fair administration of justice. No legal system can long remain viable if lying under oath is treated as no more than a social solecism. Swearing to tell the truth is a solemn oath, the breach of which should have serious consequences, especially where the perjurer tells his lie in an attempt to obtain money damages."

In considering the propriety of dismissal, the court found that "[n]o lesser sanction would be adequate to penalize plaintiff for her misconduct and to deter others from engaging in similar conduct in the future." In the end, dismissal was deemed appropriate given the plaintiff's "blatant and repeated perjury" which demonstrated "a total disrespect for the Court and the process by which justice is administered."

In Ford v. American Broadcasting Company, the court dismissed a Title VII action because the plaintiff willfully concealed documents concerning his efforts to obtain subsequent employment. The court noted that since the filing of the lawsuit, the plaintiff has "consistently attempted to frustrate defendant's legitimate discovery demands." In determining the appropriate sanction under Rule 37, the court deemed it necessary to consider the willfulness of the plaintiff's behavior. The court held that the harsh sanction of dismissal should only be used "when noncompliance is due to `willfulness, bad faith, or . . . fault.'" With regard to willfulness, the court made the following observations:

Plaintiff is not an unsophisticated man victimized by the infidelity or lack of diligence of his lawyer. . . . The failures of disclosure were his own, not those of his lawyer. And most important, those failures are not the result of oversight, negligence, lack of interest, confusion or incompetence. They result from plaintiff's own bad faith and dishonest conduct, his deliberate and selective attempt to deceive by concealing evidence which he well knows would be powerfully damaging to his lawsuit. This constitutes an attempt to obstruct justice. Compounding the dishonesty of the concealment of properly demanded discovery has been plaintiffs further dishonesty in furnishing false and deceitful affidavits and testimony on the subject.

Because the plaintiff's failure to produce the requested documents was willful and in bad faith, the court found dismissal to be the appropriate sanction.

Dismissal was also found appropriate in Nittolo v. Brand, where the plaintiff sought damages for personal injuries resulting from an automobile accident. During discovery, the plaintiff gave false deposition testimony regarding his prior injuries and employment history and further obstructed discovery by withholding medical records. The court cited Penthouse International for the proposition that "parties who willfully obstruct discovery may suffer dismissal of their claims, not only as punishment for their own conduct, but also as a deterrent to others." After discussing the plaintiff's false and evasive deposition testimony, and the incredulous reasons he offered for physically removing his medical records, the court found that the plaintiff "deliberately engaged in a pattern of conduct designed to conceal facts and to prevent defendants from discovering and obtaining relevant evidence." Despite the plaintiff's efforts, the defendants were able to uncover some of the true facts concerning the plaintiff's medical condition. The court dismissed the case, stating that "[t]he sanctions imposed by Rule 37 for obstructing or failing to comply with discovery procedures would be hollow indeed if they could be imposed only on those whose efforts at concealment proved to be successful."

B. Lesser Sanctions Have Proven Ineffective

Plaintiff has been sufficiently forewarned that this Court will not tolerate his discovery abuses. For example:

(1) On March 9, 2006, I entered an Order requiring plaintiff to produce requested earnings and mitigation discovery on or before March 17, 2006 or the Court would consider striking his Second Amended Complaint;

(2) On April 24, 2006, I entered a preclusion Order stating that plaintiff would not be permitted to rely upon any financial or mitigation records not produced by April 26, 2006;

(3) On June 20, 2006, Judge Dolinger ordered plaintiff to produce damages documents and information that had been requested at his May 5 deposition and in subsequent correspondence from defendants;

On July 14, 2006, Judge Dolinger again ordered plaintiff to comply with the June 20th Order to produce documents relating to his economic damage claim, and warned that if plaintiff failed to provide discovery of financial records, the Court would entertain an application by defendants to preclude plaintiff from offering any evidence at trail as to damages.

In spite of these repeated warnings, plaintiff has not only failed to disclose facts buy has actively misrepresented them in an effort to prevent defendants from obtaining complete and accurate discovery. Plaintiff has never provided discovery relating to his 2006 earnings, his residence in Georgia, or his many lawsuits. All documents and information relating to those subjects have been uncovered by defendants. Each new discovery has served to reveal additional misrepresentations by plaintiff. Plaintiff has even prevented defendants' final efforts to verify his earnings by refusing to authorize defendants to obtain those IRS Forms 1099 issued to him under his correct social security number.

This ongoing conduct has caused such prejudice to defendants that no lesser sanction is appropriate. Plaintiff has perverted the very system of justice he sought to use to redress what he claimed was a grievous wrong. Plaintiff cannot manipulate this system so that it is only there to serve him instead of serving all litigants.

This Court has the inherent power not only to enforce its own rules and orders, but also to protect parties from discovery abuses. As stated by the Supreme Court,

here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of a deterrent.

For all of these reasons, dismissal under Rule 37 is both permissible and justified in this case.

V. CONCLUSION

For the foregoing reasons, defendants' motion to dismiss is granted. Plaintiff's Second Amended Complaint is dismissed and this case is now dismissed with prejudice. The Clerk of the Court is directed to close this motion [Document # 93] and this case.

SO ORDERED: