Opinion
99 Civ. 12343 (WHP)(JCF).
April 13, 2001.
MEMORANDUM AND ORDER
William Dew, the pro se plaintiff, brings this action pursuant to the Fair Housing Act of 1968, 42 U.S.C. § 3601, et seq., alleging that the defendants 39th Street Realty, Glenwood Managment Corp. (collectively, the "Glenwood Defendants"), the New York State Housing Finance Agency ("NYSHFA"), and Rockrose Development Corp. ("Rockrose") discriminated against him on the bais of his race, disability, and source of income. All of the defendants as well as the plaintiff have now moved pursuant to Rule 37 of the Federal Rules of Civil Procedure for orders compelling responses to discovery requests. Each motion will be dealt with in turn.
Glenwood Defendants
On October 24, 2000, the Glenwood Defendants served the plaintiff with interrogatories, document requests, and requests for admissions. When Mr. Dew had not responded within thirty days as required by Rules 33(b)(3), 34(b), and 36(a) of the Federal Rules of Civil Procedure, counsel for the Glenwood Defendants contacted him by telephone, but he hung up on them. (Certification of Jennifer Morris cohen dated Dec. 19, 2000 ("Cohen Cert."), ¶¶ 3, 4,; Certification of Richard S. Reig dated Dec. 29, 2000 ("Reig Cert."), ¶ 5). Counsel then sent Mr. Dew a letter asking when responses would be forthcoming. (Cohen Cert., Exh. B). The plaintiff then asserted for the first time that he had not received discovery requests. (Reig Cert., Exh. A). This assertion is not credible, however, in light of evidence that Mr. Dew Personally signed a FedEx receipt acknowledging delivery of the materials on October 24, 2000. (Reig Cert., Exh. C).
In this instant motion, the Glenwood Defendants seek an order (1) compelling the plaintiff to provide complete responses to the discovery requests, (2) requiring him to pay the attorneys' fees and costs incurred by the Glenwood Defendants in connection with this motion (3) extending the discovery deadline, and (4) requiring the plaintiff to serve the Glenwood Defendants with copies of all papers for which service is required by Rule 5. Mr. Dew answered the motion by submitting for the first time his responses to the discovery requests. Although he responded substantively to the requests for admissions, his responses to the interrogatories and document requests consist of boilerplate objections along with the argument that the defendants possess all information requested.
The plaintiff's responses are inadequate for several reasons. First, having failed to provide answers in a timely fashion, Mr. Dew has waived any objections. See Burda Media, Inc. v. Blumenberg, No. 97 Civ. 7167, 1999 WL 413469, at *5 (S.D.N.Y. June 21, 1999); Smith v. Conway, 154 F.R.D. 73, 76 (S.D.N.Y. 1994). Second, his objections are frivolous. His complaints of burden and overbreadth are unsupported. To the extent that he is complaining of the cost of compliance, he is entitled to produce documents for the defendants' inspection, to be copied at their cost. Furthermore, the fact that an adversary may already have some of the information it seeks is not an excuse for failing to produce response documents. Indeed, the plaintiff apparently does possess documents that the defendants do not have but which are responsive to their discovery requests. (Reply Certification of Richard S. Reig dated 2/1/01 ("Reig Reply Cert."), ¶¶ 7, 8 Exh. H.) Accordingly, the Glenwood Defendants' motion is granted, and the plaintiff shall provide complete and substantive responses to all interrogatories and document requests previously propounded. In particular, because he has alleged discrimination on the basis of disability and on the basis of his receipt of Social Security Disability benefits, he shall execute the requested authorization for release of his Social Security records. The balance of the relief requested shall be addressed below.
Rockrose
Rockrose served a request for production of documents on Mr. Dew by mail on October 6, 2000. The plaintiff responded on November 3, 2000 with boilerplate objections to each of the six specific requests. (Certification of Victor Rivera Jr. dated Dec. 29, 2000 ("Rivera Cert."), Exh. C). On November 6 and 14, 2000, counsel for Rockrose sent letters to Mr. Dew asking the plaintiff to contact him regarding the inadequacy of the responses. (Rivera Cert., Exh. D). Instead of replying directly, Mr. Dew sent "amended" responses on November 20, 2000. (Rivera Cert., Exh. F). These answers were ambiguous at best, and Rockrose's attorney wrote to the plaintiff again on November 22, 2000 pointing out the deficiencies. (Rivera Cert., Exh. G). Mr. Dew did not respond. (Rivera Cert. ¶ 9). Rockrose now seeks an order requiring the plaintiff to produce the requested documents and awarding Rockrose its attorneys' fees and costs.
Mr. Dew's objections are without merit. He shall produce all of the requested documents or shall certify that he has none in his possession, custody, or control. Rockrose's fee application will be discussed below.
NYSHFA
NYSHFA served document requests and interrogatories on the plaintiff on May 31, 2000. (Affidavit of Thomas A. DeSimon dated Dec. 28, 2000 ("DeSimon Aff."), Exh. A). On September 5, 2000, Mr. Dew responded with boilerplate objections. (DeSimon Aff., Exh. B). Counsel for NYSHFA then sent a letter dated September 29, 2000, detailing the shortcomings of the plaintiff's responses. (DeSimon Aff., Exh. C). Counsel followed this up with letters dated October 11, 2000, November 1, 2000, and November 7, 2000, but Mr. Dew failed to supplement his responses. (DeSimon Aff. ¶ 8). NYSHFA now requests an order (1) compelling the plaintiff to provide the requested information (2) requiring him to pay the expenses of the motion, (3) directing the plaintiff to serve all papers on each of the defendants, and (4) extending the discovery deadline.
Again, an order compelling the plaintiff to respond to discovery requests is warranted. Only one of Mr. Dew's objections merits discussion. He argues that NYSHFA's requests for production of his W-2 forms and tax returns are "annoying, irrelevant, and inmaterial." (DeSimon Aff. ¶ 6 Exh. A). However, because there are income requirements for the housing to which Mr. Dew allegedly applied, he has placed his income at issue in this litigation. While there is a qualified immunity with respect to the disclosure of tax returns, see Gumowitz ex rel. West Seventy-Ninth Street Associates v. First Federal Savings Loan of Roanoke, 160 F.R.D. 462, 463 (S.D.N.Y. 1995); S.E.C. v. Cymaticolor Corp., 106 F.R.D. 545, 547 (S.D.N.Y. 1985), the standard for permitting discovery of such records has been met here. Its noted above, Mr. Dew's financial information is plainly relevant, and there is little likelihood that it will be available in any other form, particularly in light of the plaintiff's failure to be forthcoming in discovery. Mr. Dew shall therefore provide each of the requested documents and answer each of the interrogatories.
Plaintiff's Motions
Mr. Dew has submitted two motions to compel responses to discovery requests. The second, dated February 21, 2001, seeks an order compelling NYSHFA to respond to requests for admissions. But the requests, which are attached to the motion, are themselves dated February 21, 2001. Since, prior to making this motion, the plaintiff neither allowed NYSHFA the required thirty days to respond nor met and conferred with opposing counsel, the motion is summarily denied.
Mr. Dew had previously filed a motion to compel on December 26, 2000. In support of that motion, he submitted an affidavit that annexe's document requests and interrogatories to each of the defendants and stated in conclusory terms that they had failed to provide the requested information. (Affirmation of William Dew dated Dec. 26, 2000). Each defendant, however, has submitted copious documentation of its substantive responses to the plaintiff's requests. (Certification of Richard S. Reig dated Jan. 8, 2001; Certification of Victor Rivera dated Feb. 1, 2001; Affidavit of Thomas A. DeSimon dated Jan. 18, 2001). Mr. Dew in turn, has failed to specify how these responses were deficient. His motion is therefore denied.
Additional Relief
Rule 37(a)(4)(A) provides:
If the motion [to compel] is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall . . . require the party . . . whose conduct necessitated the motion . . . to pay to the moving party the reasonable expenses incurred in making the motion, including attorneys' fees, unless the court finds . . . that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
Pro Se litigants may be sanctioned pursuant to this provision. See Van Pier v. Long Island Savings Bank, FSB, No. 97 Civ. 6295, 1998 WL 671442, at *1 (S.D.N.Y. Sept. 29, 1998). Moreover, "poverty is not a bar to the imposition of sanctions for wilful misconduct." Odom v. Sielaff, No. 90 Civ. 7659, 1992 WL 2533, at *2 (S.D.N.Y. Jan. 2, 1992).
Nevertheless, an award of monetary sanctions is not appropriate at this time. Mr. Dew has been granted permission to proceed in forma pauperis in this case on the ground that his income consists solely of Social Security Disability benefits and a small pension. Even a small fine would be a significant economic hardship, and it would do little to offset the substantial costs incurred by the defendants.
Accordingly, only non-monetary relief is appropriate. First, discovery shall proceed serially: only after Mr. Dew has fully complied with his obligations to respond to discovery requests may he propound his own discovery demands. Second, if Mr. Dew continues to resist legitimate discovery requests or fails to comply with the Court's orders his complaint will be dismissed with prejudice.
In addition, the plaintiff must provide to each defendant a copy of every communication that he has with any other defendant or with the Court.
Finally, in accordance with the rulings made in this order, the discovery schedule is modified as follows: By May 15, 2001, plaintiff shall provide all documents and interrogatory answers as required by this order. By July 29, 2001, all discovery by the defendants shall be completed and plaintiff may resume discovery. The plaintiff's discovery shall be completed by October 31, 2001. The pretrial order shall be submitted by November 30, 2001 unless any dispositive motion is filed by that date. If such a motion is filed, the pretrial order shall be submitted thirty days after the motion is decided.
Conclusion
To the extent indicated above, the defendants' motions to compel (docket no. 31, 35, 36) are granted. The plaintiffs motions s(docket no. 39, 48) are denied. Discovery shall proceed in accordance with the revised schedule.
SO ORDERED.