Opinion
11 Civ. 3194 (CS) (AEK)
02-07-2024
REGINA LEWIS, Plaintiff, v. NEWBURGH HOUSING AUTHORITY, INC. et al., Defendants.
CATHY SEIBEL, U.S.D.J.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
Currently before the Court is Defendants' motion for sanctions against pro se Plaintiff Regina Lewis based on her failure to appear for her court-ordered deposition. ECF No. 248. For the reasons stated below, I respectfully recommend that Defendants' motion be GRANTED.
BACKGROUND
This case has a lengthy history, which is exhaustively detailed in prior decisions issued by Magistrate Judge Lisa Margaret Smith. See, e.g., ECF Nos. 37, 38, 74, 104, 122, 153, 201. It is not necessary to discuss all of that history here-instead, the Court addresses only those points that are relevant to the adjudication of the current motion for sanctions.
I. Commencement of the Action Through Dismissal Without Prejudice
Plaintiff filed this action on May 11, 2011, asserting that she was denied her constitutional and civil rights by Defendants when Defendants refused to suspend Plaintiff's housing choice voucher, and refused to extend her voucher term, as a reasonable accommodation for her disabilities. The claims are based on alleged violations of the Fair Housing Amendments Act of 1988, the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, and the United States Constitution. See ECF No. 2 (Complaint). Although Plaintiff was initially represented by counsel, on October 26, 2011, the Court granted counsel's motion to withdraw, ECF No. 25, and Plaintiff has since been proceeding pro se.
As addressed in Judge Smith's prior decisions, the record in this matter is replete with examples of Plaintiff disregarding court orders, failing to appear at court-ordered conferences, engaging in abusive and threatening conduct, and largely refusing to participate in discovery. See, e.g., ECF No. 104 at 5, 13-14, 18, 21-28, 34-36, and 43. Critically for purposes of the current motion, Defendants have never been able to take Plaintiff's deposition.
After numerous and complex proceedings, Judge Smith dismissed this case without prejudice on November 5, 2018; in that order, Judge Smith stated that “[i]f Plaintiff is, at some point, deemed competent by a federal court . . . she may move to reopen this action.” ECF No. 202 at 2.
II. Reopening of the Case
Following Judge Smith's retirement from the bench, this case was reassigned to Your Honor on July 28, 2022. Your Honor issued a memo endorsement that same day, which construed Plaintiff's July 2022 letters (ECF Nos. 214 and 216) as a motion to reopen the case, and authorized further submissions in connection with that motion. ECF No. 217. On November 23, 2022, Your Honor issued an Opinion and Order vacating the November 5, 2018 dismissal and reopening the case, based on the finding that Plaintiff was no longer incompetent and could once again proceed to represent herself. ECF No. 222. In that decision, Your Honor noted that “Plaintiff is on notice that any delay, abusive behavior or failure to comply with court orders on her part may result in dismissal of this action with prejudice.” Id. at 9 n.6. The November 23, 2022 Opinion and Order also cautioned Plaintiff that “the Court will have little tolerance for abusive, noncompliant or dilatory behavior,” ordered Plaintiff not to telephone the Court, and instructed that all communications with the Court “must be in writing.” Id. at 11-12.
III. Proceedings Since the Reopening of the Case
Your Honor held a status conference on December 14, 2022, and subsequently issued a revised Civil Case Discovery Plan and Scheduling Order, which set May 22, 2023 as the deadline for the completion of depositions and June 22, 2023 as the deadline for the completion of all fact discovery. See ECF No. 225. On that same date, the case was referred to the undersigned to conduct a settlement conference. ECF No. 226.
On December 29, 2022, as directed by Your Honor during the December 14, 2022 conference, counsel for Defendants re-sent Plaintiff “all previous disclosure that has taken place in this matter,” including all disclosures made by both Plaintiff and Defendants, which constituted “all of the disclosure that was produced during the course of this matter.” ECF No. 227. That same day, as also directed by Your Honor during the December 14, 2022 conference, counsel for Defendants sent Plaintiff “a copy of all of our prior settlement correspondence.” ECF No. 228. On January 10, 2023, Defendants served supplemental interrogatories on Plaintiff. ECF No. 229.
On April 10, 2023, the undersigned conducted a settlement conference with the parties and counsel by telephone and video, but no settlement was reached. Docket Sheet, Minute Entry dated 4/10/2023. Thereafter, on May 8, 2023, Defendants retained new counsel, who sought 90-day extensions of the deadlines set in the December 15, 2022 Civil Case Discovery Plan and Scheduling Order. ECF Nos. 232, 233. At a status conference held before Your Honor on June 2, 2023, the deadline for the completion of discovery was extended to July 30, 2023, and Plaintiff was directed to answer Defendants' interrogatories by June 16, 2023. Docket Sheet, Minute Entry dated 6/2/2023. The case was then referred to the undersigned for general pretrial supervision via an amended order of reference. ECF No. 237.
The undersigned scheduled a status conference for June 27, 2023. ECF No. 238. In advance of the conference, Defendants filed a letter raising a number of discovery issues that required Court intervention. ECF No. 240. First, Defendants stated that they had noticed Plaintiff's deposition for July 24, 2023 at Defendants' counsel's office, but that Plaintiff informed counsel that she “will not submit to a deposition, and engaged in vulgar and abusive language.” Id. Second, Plaintiff indicated her intent to depose Defendant Marc Starling, the former Executive Director of the Newburgh Housing Authority. Defendants' counsel reported that because Mr. Starting was no longer employed by the Newburgh Housing Authority, counsel did not have the ability to facilitate the deposition, and further noted that Mr. Starling refused to appear for a deposition absent a subpoena. Id. While Defendants offered to produce another witness instead, Plaintiff insisted on deposing Mr. Starling, and proposed to take the deposition by telephone and to record the proceedings on her cell phone; Defendants objected to this proposal. Id. Third, Defendants requested the appointment of a special master or referee to oversee any depositions in the case. Id. Fourth and finally, Plaintiff served a set of interrogatories on Defendants, but Defendants maintained that all but the first two interrogatories requested information outside the permissible scope of interrogatories under Local Civil Rule 33.3 of the Joint Local Civil Rules of the United States District Courts Southern and Eastern Districts of New York, and further objected that many of the interrogatories were improperly phrased and/or irrelevant. Defendants asked Plaintiff to withdraw the objectionable interrogatories, but she refused to do so. Id.
Although Defendants appeared by telephone for the June 27, 2023 status conference, Plaintiff failed to appear, and the conference was rescheduled to July 7, 2023. See Docket Sheet, Minute Entry dated 6/27/2023; ECF No. 242. Both Plaintiff and Defendants appeared by telephone at the July 7, 2023 conference. Docket Sheet, Minute Entry dated 7/7/2023; see ECF No. 249 (“Gaba Decl.”) Ex. M (“7/7/23 Tr.”). During the conference, this Court noted Plaintiff's position “that there shouldn't be any discovery,” to which Plaintiff responded, “[t]hey've had discovery. They've filed two motions to dismiss already. So they've had their crack at the apple several times already.” 7/7/23 Tr. at 6; see id. at 7 (“I'm not . . . going to participate in any more discovery ....”). As this Court memorialized in an order issued after the conference, “Plaintiff expressed her unwillingness to engage in discovery in strident tones”; she “became increasingly irate, issued an abusive and expletive-laden tirade, and then terminated her participation in the conference by hanging up the phone.” ECF No. 243; see 7/7/23 Tr. at 6-12.
Plaintiff additionally stated,
There's not going to be any more discovery from my side based on the record, based on the delays that they've created, based on the magistrate who testified for them on more than one occasion and put it in writing in an order that I am not disabled and, therefore, I wasn't entitled to a reasonable accommodation ....So, based on what the magistrate did, I want a remedy right now. No more discovery.7/7/23 Tr. at 8. As she became more agitated, Plaintiff later added,
So I'm telling you now, Judge Krause, and then I'm getting ready to hang up, there will be no more discovery. I filed a motion for summary judgment. The case is 13 years old. They haven't even answered or controverted my claim. They waived the right for any discovery. They waived the right for anything. So I'm done with discovery.Id. at 9.
After Plaintiff hung up from the telephone conference, this Court granted Defendants' application to take Plaintiff's deposition. 7/7/23 Tr. at 12. This Court explained that it would issue an order directing that Plaintiff's deposition take place at the United States Courthouse in White Plains, and noted that Rule 37(d) of the Federal Rules of Civil Procedure provides for the imposition of sanctions if a party fails to appear for his or her deposition. Id. at 13-14. This Court further stated that Rule 37(b) of the Federal Rules of Civil Procedure provides for the imposition of sanctions if a party fails to comply with a court order. Id. at 14. This Court told Defendants' counsel that if Plaintiff failed to comply with the order to appear for her deposition, then counsel would be authorized to file a motion for sanctions under both of those rules. Id.
With respect to the other discovery issues raised in Defendants' pre-conference letter, see ECF No. 240, the Court denied without prejudice the application for the appointment of a special master, 7/7/23 Tr. at 15; held in abeyance Plaintiff's request to depose Mr. Starling in light of Plaintiff's stated “lack of interest in discovery,” Id. at 16; and ordered Defendants to serve formal responses to Plaintiff's interrogatories by July 14, 2023, Id. at 16-17.
As contemplated at the July 7, 2023 conference, this Court issued an order on July 12, 2023, directing Plaintiff to appear for her deposition on July 24, 2023 at the United States Courthouse in White Plains. ECF No. 243 (“July 12 Order”). The July 12 Order cited Rule 37(d)(1)(A)(i) of the Federal Rules of Civil Procedure, which states 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). The July 12 Order further directed that “[t]o ensure that the prerequisites of Rule 37(d) have been satisfied, by no later than July 17, 2023, Defendants must serve ‘proper notice' on Plaintiff to require her to appear for her deposition . . . and must file proof of service on the docket.” ECF No. 243 at 2 (emphasis in original). This Court cautioned that “[i]f the notice is served, and if Plaintiff then fails to appear for her properly noticed deposition, the Court will authorize the filing of a motion for sanctions.” Id. The July 12 Order also cited Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure, which provides for the imposition of sanctions if a party “fails to obey an order to provide or permit discovery.” Fed.R.Civ.P. 37(b)(2)(A). This Court again cautioned that “if Plaintiff fails to obey this order to appear for her deposition, she will be subject to the imposition of sanctions ....” ECF No. 243 at 2 (emphasis in original). This Court also explained that pursuant to both Rule 37(b) and Rule 37(d), available sanctions 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). Plaintiff was specifically warned that failure either to appear for her deposition or to obey this Court's order to appear for her deposition could result in “dismissal of the entire case.” ECF No. 243 at 2 (emphasis in original); see also id. at 3 (“Accordingly, by way of this Order, the Court is placing Plaintiff on notice of Rule 37(b) and Rule 37(d) of the Federal Rules of Civil Procedure; the obligations that they place on her to appear for her deposition; and the possible sanctions that she might face, including dismissal of this action, if she fails to appear for the deposition.”) (emphasis in original).
On July 14, 2023, Defendants filed a certificate of service, confirming that a deposition notice was served upon Plaintiff that day. ECF No. 244; see Gaba Decl. Ex. O. After being sent the July 12 Order and being served with Defendants' deposition notice, Plaintiff wrote a letter to Chief Judge Laura Taylor Swain on July 21, 2023, in which she stated, “I have just informed Judge Seibel's law clerk that I do not intend to participate in any further discovery and especially deposition until a remedy has been made to address the delay and bias caused by the court.” ECF No. 245 at 1. Plaintiff further wrote that she was “requesting that all discovery be ended for good cause because the endless discovery is in bad faith.” Id. Plaintiff stated that she was “requesting a remedy with an order terminating discovery, and granting my motion for Summary Judgment on the law as to violations of the ADA of 1990 and the Rehabilitation Act of 1973.” Id. at 3.
While the certificate of service states that a copy of the deposition notice is “annexed,” the filing on the docket does not include a copy of the deposition notice. See ECF No. 244. A copy of the deposition notice is, however, included as part of Exhibit O to the Gaba Declaration, which also includes documentation confirming that the deposition notice was served upon Plaintiff by certified mail, return receipt requested, as specified in the certificate of service. See Gaba Decl. Ex. O.
Rather than engage in discovery, at various points over the course of this litigation, Plaintiff has filed-or attempted to file-motions for summary judgment. See ECF Nos. 89, 176, 213, 241, 245. In the July 21, 2023 letter to Chief Judge Swain, Plaintiff stated that she filed her second motion for summary judgment on June 22, 2023, but that it was not docketed. ECF No. 245 at 1. She further stated that her original motion for summary judgment was filed on August 13, 2015. Id. This appears to be an error-the only document filed in this case on August 13, 2015 was a letter from Plaintiff, asking for a copy of Judge Smith's decision on the motion for summary judgment that purportedly had been filed by Plaintiff's former lawyer in 2011, as well as a copy of the motion itself. See ECF No. 102. No such motion was ever filed by Plaintiff's former lawyer. See ECF No. 104 at 32. Instead, the first purported motion for summary judgment was filed by Plaintiff herself-a letter dated June 25, 2015 titled, “Motion for Summary Judgment on the pleadings.” ECF No. 89; see ECF No. 104 at 29. But regardless of whether Plaintiff has filed documents labeled as motions for summary judgment, Plaintiff has been told repeatedly that any such motion would be premature since discovery in this case has still not yet been completed. See, e.g., ECF No. 104 at 8; ECF No. 201 at 19 (“It is apparent that Plaintiff is steadfast in her belief that at this juncture in the litigation, she is entitled to judgment in her favor, even though discovery has yet to be completed.”); 7/7/23 Tr. at 6.
Plaintiff failed to appear for her deposition on July 24, 2023, Gaba Decl. Ex. Q, and Defendants informed the Court that they intended to file a motion for sanctions and to seek dismissal of the case pursuant to Rule 37 of the Federal Rules of Civil Procedure, ECF No. 246. On August 2, 2023, this Court issued an order setting a briefing schedule for the motion for sanctions; in the order, this Court reiterated that the July 12 Order had “warned Plaintiff that she would be subject to the imposition of sanctions if she failed to appear for her deposition, including the possibility of dismissal of her entire case.” ECF No. 247. Before Defendants had filed their motion for sanctions, Plaintiff filed a document dated August 19, 2023, and titled “Plaintiff's Follow up for Motion for Summary Judgment on the law for ADA and the Rehabilitation Act.” ECF No. 253. In accordance with the briefing schedule, Defendants filed their motion for sanctions on August 23, 2023. ECF Nos. 248-51. Plaintiff did not file anything in opposition to the motion for sanctions. Nevertheless, Defendants filed a reply submission in further support of their motion for sanctions on September 22, 2023. ECF Nos. 254-256. Plaintiff subsequently filed two letters-one dated October 4, 2023, and one dated October 31, 2023-addressed to Chief Judge Swain, but neither letter discussed the pending motion for sanctions. See ECF Nos. 258, 259.
The copy of the second letter from Plaintiff that is docketed on ECF appears to be incomplete. See ECF No. 259. Only the first page of the letter can be accessed on ECF, but it does not mention Defendants' pending motion for sanctions.
DISCUSSION
I. Legal Standard
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). In addition, Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure provides for the imposition of sanctions if a party “fails to obey an order to provide or permit discovery.” Fed.R.Civ.P. 37(b)(2)(A). Again, the available sanctions for failing to follow a court order to provide or permit discovery are listed at Rule 37(b)(2)(A)(i)-(vi), and include the possibility of “dismissing the action or proceeding in whole or in part.” Fed.R.Civ.P. 37(b)(2)(A)(v).
Defendants also bring their motion pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, seeking dismissal of the action for failure to prosecute. But “whether a court has power to dismiss a complaint because of noncompliance with a production order depends exclusively upon Rule 37, which addresses itself with particularity to the consequences of a failure to make discovery. There is no need to resort to Rule 41(b), which appears in that part of the Rules concerned with trials and which lacks such specific references to discovery.” Salahuddin v. Harris, 782 F.2d 1127, 1134 (2d Cir. 1986) (cleaned up) (emphasis in original). In any event, motions for dismissal under Rule 37(b), Rule 37(d), and Rule 41(b) are evaluated largely using the same criteria. See Dauphin v. Chestnut Ridge Transp. Inc., No. 06-cv-2730 (SHS), 2009 WL 5103286, at *2 (S.D.N.Y. Dec. 28, 2009); Sanders v. Does, No. 05-cv-7005 (RJS), 2008 WL 2117261, at *2 (S.D.N.Y. May 15, 2008).
“All litigants, including pro ses, have an obligation to comply with court orders,” and although pro se litigants are “generally entitled to ‘special solicitude' before district courts,” they “are not immune to dismissal as a sanction for noncompliance with discovery orders.” Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (per curiam) (brackets omitted). Indeed, “[t]he severe sanction of dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal.” Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (per curiam). However, “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.” Agiwal, 555 F.3d at 302 (quotation marks omitted).
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.” Id. (cleaned up). “Generally, a persistent refusal to comply with a discovery order presents sufficient evidence of willfulness, bad faith, or fault by the noncompliant party.” Kamdem-Ouaffo v. Balchem Corp., No. 17-cv-2810 (PMH) (PED), 2020 WL 8838038, at *7 (S.D.N.Y. Dec. 23, 2020) (cleaned up), adopted by 2021 WL 1101126 (S.D.N.Y. Mar. 23, 2021).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Civil Rule 7.2 of the Joint Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases that are unpublished or only available by electronic database are being simultaneously mailed to the pro se Plaintiff along with this Report and Recommendation.
If a court decides to impose sanctions for a party's failure to attend his or her deposition, then 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).
II. Application of Legal Standard
A. Appropriateness of Sanctions
Plaintiff's failure to appear for her deposition, after being served with a deposition notice by Defendants and receiving an order from this Court directing her to appear, warrants the imposition of sanctions pursuant to Rule 37(d)(1)(A)(i) and Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure. Furthermore, this Court has considered the factors that govern whether dismissal would be an appropriate sanction and finds that in this case, especially in light of Plaintiff's lengthy history of noncompliance with court orders and abusive behavior aimed at both the Court and Defendants' counsel, dismissal is warranted.
As detailed below, all of the relevant factors make clear that dismissal is a proper sanction for Plaintiff's conduct.
1. Whether Plaintiff was Warned of the Consequences of Noncompliance
Plaintiff was explicitly warned by this Court of the consequences of noncompliance with the July 12 Order to appear for her deposition, including the possibility that the entire case could be dismissed if she disregarded the order and failed to appear for her deposition. See July 12 Order. The Court reiterated this warning in its subsequent order setting the briefing schedule for the motion for sanctions. See ECF No. 247.
Moreover, Plaintiff is familiar-from her own prior experience in litigating this matter- with the consequences of failing to comply with court orders to participate in the litigation of her case, as she has been provided such warnings in the past. See ECF No. 37 at 2 (“a failure to comply with this Court's orders, to produce discovery, and to appear at the next conference, may result in the imposition of sanctions . . . including permitting Defendants to make a motion to dismiss the case ....”); ECF No. 38 at 9 (“In the event that [P]laintiff chooses not to appear [at the upcoming conference], the Court will consider the imposition of sanctions against [P]laintiff, including possibly permitting [D]efendants' counsel to make a motion to dismiss the case for failure of the [P]laintiff to pursue her prosecution diligently.”); ECF No. 74 at 12 (“Plaintiff is on notice that any further failures on her part in complying with the Orders set forth herein, or in participating in completing the pre-trial process in this case, will be considered a basis for a motion to dismiss for failure to prosecute.”).
2. The Willfulness of, or the Reason for, Plaintiff's Noncompliance
Plaintiff has provided no reason for her failure to appear for her July 24, 2023 deposition, other than her repeated contention that discovery is, or should be, over. See ECF No. 253 at 3 (“The court continues denying that discovery is complete since 2006 .... The court continues to order discovery and the defendants continue to lie about being in receipt of discovery.”). Plaintiff also maintains, as she has repeatedly over the course of this litigation, that she is entitled to summary judgment as “[t]here are no triable issues.” Id. But there is no merit to Plaintiff's contention that she may refuse to appear for her deposition and proceed directly to adjudication of her motion for summary judgment. Plaintiff's disregard of her court-ordered obligations has stymied the Court's ability to move this case forward and reach the conclusion of the discovery phase of the litigation, at which point Plaintiff could properly seek to file her motion for summary judgment. Indeed, Judge Smith explicitly stated as long ago as her February 11, 2015 order that “[i]n order for the litigation to continue to either the trial or the summary judgment phase Plaintiff must make herself available for a deposition by Defendants' counsel.” ECF No. 74 at 10 (emphasis added). Simply put, Plaintiff's noncompliance cannot be justified.
Plaintiff's conduct since the case was reopened makes clear that her decision not to appear for her deposition is willful. Indeed, as Plaintiff expressly stated on the record during the July 7, 2023 conference, “[s]o I'm telling you now, Judge Krause, and then I'm getting ready to hang up, there will be no more discovery. I filed a motion for summary judgment. The case is 13 years old. They haven't even answered or controverted my claim. They waived the right for any discovery. They waived the right for anything. So I'm done with discovery.” 7/7/23 Tr. at 9 (emphases added). And in her July 21, 2023 letter to Chief Judge Swain, Plaintiff stated that she “do[es] not intend to participate in any further discovery and especially deposition until a remedy has been made to address the delay and bias caused by the Court.” ECF No. 245 at 1 (emphasis added). Plaintiff added that “[c]ontrary to Magistrate Krause, I may file a motion for Summary Judgment on the law,” and she was “requesting that all discovery be ended for good cause because the endless discovery is in bad faith.” Id. In short, Plaintiff has made her intentions abundantly clear at every opportunity-she will not comply with this Court's order to sit for a deposition or otherwise participate in the discovery process.
Contrary to Plaintiff's assertion, Defendants filed their answer to Plaintiff's complaint on July 12, 2011. ECF No. 6.
Later during the conference, Plaintiff, in the midst of an expletive-laden and antisemitic tirade, declared again that “[t]hey're getting no more discovery.” See 7/7/23 Tr. at 10.
3. The Duration of the Noncompliance
Plaintiff has failed to accept that there is further discovery for her to provide in this case, despite being told repeatedly that discovery has not been completed. As noted above, in a February 11, 2015 order, Judge Smith made clear to Plaintiff that “[i]n order for the litigation to continue to either the trial or the summary judgment phase Plaintiff must make herself available for a deposition by Defendants' counsel.” ECF No. 74 at 10.
Even after Your Honor granted Plaintiff's motion to reopen the case and set a new discovery schedule, Plaintiff has remained persistent in her refusal to participate in any further discovery. She made that point clear on the record at the July 7, 2023 conference with this Court, and as recently as October 4, 2023, Plaintiff wrote to Chief Judge Swain, “I am requesting a cease and desist from all frivolous duplicitous harassing communication from the defendants, pending my motion for summary judgment on the law ....” ECF No. 258 at 2. This Court has no reason to believe that Plaintiff will ever comply with her remaining discovery obligations in this action, including her obligation to sit for her deposition.
Moreover, this Court's assessment of Plaintiff's complete and total unwillingness to abide by court orders regarding her deposition and other discovery obligations is reinforced by Plaintiff's continued abusive behavior toward both Defendants' counsel and the Court. As Defendants' counsel reported in a June 26, 2023 letter, he contacted Plaintiff by telephone on June 22, 2023, and “[a]fter briefly discussing the case, the Plaintiff launched into a shouting tirade laden with obscenities, racial insults and anti-Semitic slurs directed at myself, my client, your Honor, and Judges Karas and Smith.” ECF No. 254 (Reply Declaration) Ex. A. Then, during the July 7, 2023 conference, “Plaintiff expressed her unwillingness to engage in discovery in strident tones. Plaintiff became increasingly irate, issued an abusive and expletive-laden tirade, and then terminated her participation in the conference by hanging up the phone.” July 12 Order at 1; see 7/7/23 Tr. at 6-12. Not only is such behavior intolerable, but it has created an insurmountable obstacle to the progress of the case. As has been extensively documented throughout the course of the litigation, Plaintiff has demonstrated a repeated inability to behave civilly toward both Defendants' counsel and the Court, despite the best efforts of both to exercise patience and to move the case forward. Unfortunately, and despite numerous warnings, Plaintiff's abusive behavior, and her refusal to accept her obligation to complete discovery in this action, show no signs of abating.
4. The Efficacy of Lesser Sanctions
There are no sanctions short of dismissal that would promote Plaintiff's compliance with her discovery obligations. Plaintiff's intransigence and refusal to follow court orders is made manifest by the history of the case. As Judge Smith wrote in her February 11, 2015 order, “[t]here are no appropriate lesser sanctions, as Plaintiff does not have possession of any evidence which she could be barred from offering at trial, and she is indigent, and thus unable to pay any fine. This case has been pending for more than three and one-half years, and further delay will have significance in Defendants' ability to pursue its defense.” ECF No. 74 at 12. These facts are all still true, except that now the case has been pending for over twelve years, and the impact of any further delay on Defendants' ability to pursue their defenses is unquestionably severe. Plaintiff's conduct-and her own words, expressed at conferences and in writing-make plain that she has no intention of moving forward with her deposition, or completing any of her remaining discovery obligations. Accordingly, while the sanction of dismissal is a harsh one, it is the necessary and appropriate step to take in this case.
In sum, considering all of the relevant factors, I respectfully recommend that Defendants' motion for sanctions be GRANTED, and that the case be dismissed with prejudice.
B. Award of Expenses
Rule 37(d) of the Federal Rules of Civil Procedure states that “the court must require the party failing to act . . . 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 did not address this issue in their motion papers. It is clear, however, that an award of expenses here would be unjust. Plaintiff does not have the financial resources to pay any monetary sanction that the Court would impose, even if such an additional sanction is warranted based on the burdens that Plaintiff has inflicted on Defendants and defense counsel through her failure to appear for her court-ordered and properly noticed deposition. Any such monetary penalty would be unduly severe and burdensome in light of Plaintiff's financial status. Accordingly, I respectfully recommend that the circumstances of this case make an award of expenses unjust, and that no monetary award be imposed.
CONCLUSION
For the reasons stated above, I respectfully recommend that Defendants' motion for sanctions (ECF No. 248) be GRANTED, and that the case be dismissed with prejudice. I further respectfully recommend that there be no award of expenses pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, as such an award would be unjust.
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), (d) (adding three additional days when service is made by mail). 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 Cathy Seibel, 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 Seibel, 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).
A copy of this Report and Recommendation has been mailed to the pro se Plaintiff by chambers.