Opinion
14-cv-5449 (NSR) (AEK)
05-01-2023
ELAINE AGHAEEPOUR, et al., Plaintiffs, v. NORTHERN LEASING SYSTEMS, INC., et al., Defendants.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE, United States Magistrate Judge
TO: THE HONORABLE NELSON S. ROMAN, U.S.D.J.
Currently before the Court is Defendants' motion for sanctions against Plaintiffs Julie Higgins (“Higgins”), Jesus Rivera (“Rivera”), and Hong Zhang (“Zhang”) based on their failure to appear for their depositions. ECF No. 154. After receipt of a letter from counsel regarding the schedule for outstanding depositions, this Court issued an order on October 27, 2022 which stated, in relevant part:
As for Plaintiffs Higgins, Rivera, and Zhang, in order for the Court to have the authority to recommend sanctions for these three plaintiffs for the potential failure to attend their depositions, Defendants must satisfy the prerequisites of Rule 37(d) of the Federal Rules of Civil Procedure. Accordingly, by November 4, 2022, counsel for Defendants is directed to serve “proper notice” on Plaintiffs Higgins, Rivera, and Zhang to require them to appear for depositions on a date or dates prior to the deadline for completion of fact depositions. By November 10, 2022, Plaintiffs' counsel must confirm in writing that he agrees to accept service of such notices on behalf of his clients, or explain to the Court in writing why he refuses to accept service. If the notices are served and accepted, and if these three Plaintiffs then fail to appear for their properly noticed depositions, the Court will authorize the filing of a motion for sanctions, which may include a request that the claims of any plaintiff who has failed to appear for a deposition be dismissed without prejudice. See Fed.R.Civ.P. 37(d)(3) (listing types of potential sanctions available pursuant to Rule 37(d)). Based on the agreement of the parties set forth in their letter at ECF No. 147, any motion for sanctions must allow for the possibility
that a plaintiff who has failed to appear for his or her deposition in accordance with the forthcoming notices may potentially cure the failure to appear, if authorized by the Court, if he or she sits for a deposition no later than 45 days prior to the deadline for Defendants to file a motion for summary judgment in this action.ECF No. 149.
In accordance with the Court's order, on October 28, 2022, Defendants served deposition notices on Higgins, Rivera, and Zhang by emailing such notices to Plaintiffs' counsel. See ECF No. 154-1 (“Parness Cert.”) ¶ 4 & Ex. A. Higgins's deposition was noticed for November 15, 2022; Rivera's deposition was noticed for November 16, 2022; and Zhang's deposition was noticed for November 18, 2022. Id. All of the depositions were to be conducted remotely via Zoom. Id. On October 31, 2022, Plaintiffs' counsel accepted service of the notices on behalf of Higgins, Rivera, and Zhang. Parness Cert. ¶ 5 & Ex. B. Higgins, Rivera, and Zhang each failed to appear for their depositions. Parness Cert. ¶¶ 6-8. Defendants now request that the Court “sanction each Plaintiff by dismissing the claims of each such Plaintiff, without prejudice to their opportunity to cure ....” ECF No. 155 at 4.
Rule 37 of the Federal Rules of Civil Procedure provides that “[t]he court where the action is pending may, on motion, order sanctions if . . . a party . . . fails, after being served with proper notice, to appear for that person's deposition[.]” Fed.R.Civ.P. 37(d)(1)(A)(i). Possible sanctions for such a failure are listed in Rule 37(b)(2)(A)(i)-(vi), and include “dismissing the action or proceeding in whole or in part.” Fed.R.Civ.P. 37(b)(2)(A)(v); see Fed.R.Civ.P. 37(d)(3). Courts consider various factors in deciding whether dismissal under Rule 37 is appropriate, including: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant party had been warned of the consequences of noncompliance.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (per curiam) (cleaned up).
In this case, Plaintiffs' counsel does not object to dismissal without prejudice of the claims asserted by Higgins, Rivera, and Zhang. See ECF No. 159 (“Pls.' Mem.”). Counsel notes that he has “worked diligently to locate the Plaintiffs regarding participating and pursuing the present lawsuit” and “has attempted corresponding with Plaintiff's [sic] via telephone, email and certified mail.” Id. at 1. Plaintiffs' counsel's attempts at communicating with Higgins, Rivera, and Zhang have been unsuccessful. Id. at 1-2. While he maintains that “to the best of counsel's knowledge Plaintiffs are unaware of the previously scheduled depositions in which they failed to appear,” he also acknowledges that “absent Plaintiff's [sic] participation, Defendants are prejudiced.” Id. at 2. Plaintiffs' counsel insists that dismissal without prejudice is the appropriate sanction here because the failure to comply with the deposition notices is not indicative of willfulness, bad faith, or fault on the part of Higgins, Rivera, and Zhang. Id.; see also Agiwal, 555 F.3d at 302 (“dismissal with prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds willfulness, bad faith, or any fault by the non-compliant litigant”) (quotation marks omitted).
Notably, when Defendants filed their motion on January 12, 2023, they reported that “[c]ounsel for Plaintiff [sic] recently advised counsel for Defendants that they had made contact with Plaintiff Higgins, and are attempting to confirm her agreement to sit for a deposition in February 2023.” ECF No. 154 at 1 n.1. When Plaintiffs filed their response to the motion on February 10, 2023, however, Plaintiffs' counsel reported that “[a]s of recent [sic], Plaintiff Julie Higgins has been non-responsive to communications.” Pls.' Mem. at 1.
Even if Higgins, Rivera, and Zhang were not acting willfully or in bad faith in failing to attend their depositions, they are unquestionably at fault in failing to maintain contact with their counsel. Indeed, Plaintiffs' counsel represented to the Court that his “last direct contact” with these Plaintiffs was in “December 2019 - January 2020,” ECF No 147, and in the several months since Plaintiffs' counsel accepted service of the deposition notices, he has not succeeded in contacting any of them. See Pls.' Mem. at 2 (“Plaintiff's [sic] counsel has been unable to locate and communicate with Plaintiffs, some believed to be residing out of the country at the current time.”); but see ECF No. 154 at 1 n.1 (regarding counsel's more recent efforts to reach Ms. Higgins). Nor has the Court been notified of any change in circumstances since Plaintiffs' counsel filed his response to the sanctions motion on February 10, 2023, including at the status conference with the Court on March 29, 2023. In light of the apparent inability to contact Higgins, Rivera, and Zhang, there is little reason to believe that any sanction short of dismissal would be effective in compelling these Plaintiffs to comply with their discovery obligations.
Where, as here, a plaintiff cannot be contacted by his or her attorney and fails to appear for a deposition, a court may order dismissal of that plaintiff's claims pursuant to Rule 37(d). See Dauphin v. Chestnut Ridge Transp. Inc., No. 06-cv-2730 (SHS), 2009 WL 5103286, at *1, *3 (S.D.N.Y. Dec. 28, 2009) (adopting recommendation of dismissal where plaintiffs “cannot be contacted by their lawyer,” “discovery ended,” and “plaintiffs have apparently made themselves unreachable,” and noting that “there appears to be little recourse to compel [these plaintiffs'] compliance with court orders regarding discovery”). Similarly, in the context of motions to dismiss for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure, which are judged largely by the same criteria, see id. at *2, courts have found the sanction of dismissal appropriate when a litigant has stopped communicating with counsel and/or the court and has become unreachable. See, e.g., Aguilar v. Kimo Mgmt. Grp. Corp., No. 21-cv-7537 (PGG) (BCM), 2023 WL 2822201, at *2 (S.D.N.Y. Apr. 6, 2023) (adopting recommendation and dismissing a plaintiff's claims without prejudice under Rule 41(b) where she “failed to respond to plaintiffs' counsel's repeated attempts to contact her, plaintiffs' letter requesting her dismissal, or the Order to Show Cause,” noting that “there is no reason to believe that a lesser sanction would be effective in prompting participation from a litigant who has become unresponsive to her own counsel and appears uninterested in pursuing her claims”); Lang v. Town of Somers, No. 21-cv-8503 (KMK) (AEK), 2023 WL 2871420, at *6 (S.D.N.Y. Jan. 10, 2023) (court's inability to communicate with plaintiff made dismissal only appropriate sanction), adopted by 2023 WL 2871099 (S.D.N.Y. Apr. 10, 2023); cf. Petties v. Smalls, No. 20-cv-4350 (ALC) (SLC), 2022 WL 18717422, at *2 (S.D.N.Y. Nov. 22, 2022) (“District courts in this Circuit have recognized that the failure to maintain a current address with the Court is a ground for failure to prosecute because the case cannot proceed without such information.”) (cleaned up), adopted by 2023 WL 2024899 (S.D.N.Y. Feb. 15, 2023).
The sanction of dismissal without prejudice is appropriate here, as Plaintiffs' counsel has acknowledged. There is no dispute that Higgins, Rivera, and Zhang each failed to appear for properly noticed depositions, and it is apparent that they have been out of touch with Plaintiffs' counsel for a substantial period of time. That said, the sanction is being imposed here because of these Plaintiffs' failure to appear for their depositions, and despite the age of this case, those depositions were only noticed for the first time just two months before Defendants filed this motion (pursuant to the timeline authorized by this Court). Accordingly, not only is the more extreme sanction of dismissal with prejudice not warranted based on the record before this Court, but Higgins, Rivera, and Zhang also should be afforded a limited opportunity to cure their failures to appear and have the dismissal sanction lifted entirely. Specifically, this Court respectfully recommends that the dismissal sanction be lifted for Higgins, Rivera, and/or Zhang if they appear for their depositions no later than 45 days prior to the deadline for Defendants to file a motion for summary judgment in this action. The dismissal sanction would be lifted only for the Plaintiff or Plaintiffs who appear for their depositions within this prescribed time, and those Plaintiffs would then be permitted to continue to litigate this case without interruption. This limited opportunity to cure the failure to appear for the deposition tempers the severity of the dismissal sanction while still appropriately reflecting the prejudice experienced by Defendants and the complete and total lack of justification offered by Plaintiffs for their failures.
Rule 37(d) of the Federal Rules of Civil Procedure also provides that “the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(d)(3). Defendants do not address the issue of expenses in their motion papers, nor have they presented the Court with any basis to recommend an award. Accordingly, by May 10, 2023, Defendants must submit a letter of no more than five pages explaining the amount of expenses, if any, that they are seeking in connection with the failure of Plaintiffs Higgins, Rivera, and Zhang to appear for their depositions, along with any documentation necessary to substantiate those expenses, including, for example, receipts for any costs and relevant billing records for a potential award of attorneys' fees. If Defendants are seeking expenses, and if Plaintiffs' counsel is not able to reach a resolution with Defendants' counsel regarding the demand for expenses, Plaintiffs must file a response to Defendants' letter explaining why “the failure was substantially justified or why other circumstances make an award of expenses unjust.” See Fed.R.Civ.P. 37(d)(3).
CONCLUSION
For the reasons stated above, I respectfully recommend that Defendants' motion for sanctions (ECF No. 154) be GRANTED, and that the claims of Plaintiffs Higgins, Rivera, and Zhang be dismissed without prejudice. I further respectfully recommend, however, that the dismissal sanction be lifted for Higgins, Rivera, and/or Zhang if they appear for their depositions no later than 45 days prior to the deadline for Defendants to file a motion for summary judgment in this action. The dismissal sanction would be lifted only for the Plaintiff or Plaintiffs who appear for their depositions within this prescribed time, and those Plaintiffs would then be permitted to continue to litigate this case without interruption.
The parties' respective letters regarding expenses must be filed by May 10, 2023 (Defendants) and May 17, 2023 (Plaintiffs, if necessary), as set forth above.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Nelson S. Roman, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Roman, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).