Opinion
17cv03170 (LGS) (DF)
02-08-2019
HANS GEORGE ALEXANDER, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE LORNA G. SCHOFIELD, U.S.D.J.:
Currently before this Court is a motion by Defendants to dismiss the Section 1983 Complaint of pro se plaintiff Hans George Alexander ("Plaintiff") under Rule 41(b) of the Federal Rules of Civil Procedure, for failure to prosecute, or under Rule 37(b), for failure to comply with this Court's discovery orders. (Dkt. 68.) Alternatively, Defendants have moved for preclusive sanctions for Plaintiff's discovery violations. (See id.)
As a preliminary step to resolving Defendants' motion, this Court issued an Order on October 17, 2018, directing Plaintiff to show cause why this Court should not recommend dismissal of the Complaint or discovery sanctions. (Dkt. 69.) Fully a month after the deadline set by this Court for Plaintiff to respond to the Order To Show Cause, Plaintiff filed a short letter, indicating only that, for some unspecified period of time, he had been out of town witnessing the birth of his granddaughter, and that he was now "ready to proceed." (Dkt. 71.) Plaintiff said nothing in his letter regarding the status of any efforts that he had made, or was in the process of making, to comply with this Court's long-outstanding discovery orders. As discussed below, this Court finds Plaintiff's belated response to the Order To Show Cause to be inadequate to excuse his extended noncompliance with discovery orders. As a result, while this Court does not recommend the extreme sanction of dismissal, it does recommend that Plaintiff be sanctioned under Rule 37(b), as set forth below.
BACKGROUND
The procedural history of this case is described in detail in the October 17 Order To Show Cause, familiarity with which is assumed. To summarize briefly, while Plaintiff initially made some efforts to participate in the discovery process and to comply with the Court's orders, Defendants have indicated that, for the better part of these proceedings, Plaintiff has failed to communicate or cooperate fully with Defendants' counsel, or to comply with court orders concerning the production of documents.
When Plaintiff failed to comply with a June 1, 2018 Order of this Court requiring him to provide certain discovery (Dkt. 65), Defendants filed a letter motion requesting that this Court recommend to the Honorable Lorna G. Schofield, U.S.D.J., that the action be dismissed (Dkt. 66). Rather than making such a recommendation at that time, this Court denied Defendants' application without prejudice and issued another discovery Order, dated July 9, 2018, expressly cautioning Plaintiff that he could be sanctioned for failure to comply, and describing the types of sanctions that he could face. (Dkt. 67.) When Plaintiff failed to comply with that Order, as well, Defendants, by letter motion dated August 22, 2018, renewed their motion for dismissal, or, in the alternative, requested preclusive sanctions. (Dkt. 68.)
In this regard, this Court's July 9 Order stated:
Plaintiff is expressly cautioned that, if he fails to make that production by July 27, 2018, or if he fails to inform this Court of any reason why, in good faith, he is unable to comply with this Court's directives by that date, then this Court may impose sanctions against him, pursuant to Rule 37(b) of the Federal Rules of Civil Procedure. Those sanctions may include, but would not necessarily be limited to, staying further proceedings until this Court's discovery Order is obeyed, directing that certain facts be taken as established for purposes of the action, or prohibiting Plaintiff from introducing certain evidence or otherwise supporting elements of his claims in this case. Plaintiff is further cautioned that, if he continues to fail to comply with this Court's discovery Order, then this Court may conclude, based on the totality of the circumstances presented, that it should recommend to Judge Schofield that this action be dismissed, either as a discovery sanction under Rule 37(b), or for failure to prosecute, under Rule 41(b).(Id.)
In light of the report of Plaintiff's continued discovery failures - specifically including (1) his failure to produce a copy of an affidavit that he had reportedly submitted to the state court in support of his motion to dismiss his underlying criminal case, and (2) his failure to provide Defendants with a fully completed and executed authorization form for the release of New York University ("NYU") records showing the classes he attended there - this Court issued its October 17, 2018 Order To Show Cause, directing Plaintiff to provide an explanation in writing, no later than November 2, 2018, of the reason for his noncompliance. (Dkt. 69.) In addition, this Court again warned Plaintiff that,
absent a persuasive explanation for his failure to participate fully in the discovery process and to comply with the Court's discovery orders, he may face sanctions that could include a stay of these proceedings until he fully complies with outstanding orders; an order that certain facts be taken as established for purposes of the action; an order precluding him from introducing certain evidence or otherwise supporting elements of his claims; or the dismissal of his claims in their entirety, without - or, potentially, with -prejudice.(Id.) After Plaintiff failed to respond to the Order to Show Cause by the November 2 deadline, Defendants submitted yet another letter to this Court, on November 9, 2018, reiterating their earlier request for a dismissal of this action. (Dkt. 70.)
Plaintiff made no contact with the Court until December 6, 2018, when he submitted a one-page letter, stating, in its entirety:
I am back, was in Lancaster PA to witness the birth of my new granddaughter[,] ready to proceed.(Dkt. 71.) Attached to this letter was a photograph, which was of poor quality, but which appeared to show Plaintiff, holding and feeding a baby with a bottle. (Id.)
Upon becoming aware of Plaintiff's December 6 letter, this Court's chambers contacted Defendants' counsel to inquire whether Defendants wished to reply, and to request that counsel update this Court with any relevant information regarding Plaintiff's compliance, or continued lack of compliance, with the outstanding discovery orders, since the date of the Order To Show Cause.
By letter dated February 1, 2019 (Dkt. 72), Defendants' counsel, Assistant Corporation Counsel Nakul Y. Shah, Esq. ("Shah"), provided the requested update. Shah informed this Court that Plaintiff had still not produced the outstanding discovery, and further represented that, "[t]hroughout [P]laintiff's absence from this litigation, [Shah] ha[d] repeatedly attempted to contact [P]laintiff by telephone to obtain the outstanding discovery, to no avail." (Id., at 1-2.) Shah did state, though, that Plaintiff had contacted him by email on November 26, 2018 - i.e., more than three weeks after Plaintiff's deadline to respond to the Order To Show Cause - "to advise that he [would] be prepared to continue this litigation within one week." (Id. at 2 n.1.) Plaintiff also reportedly contacted Shah by telephone on December 4, 2018, to discuss potential settlement. (Id.) Finally, according to Shah, Plaintiff appeared, unannounced, at the Office of the Corporation Counsel on January 23, 2019 (in connection with "an unrelated matter that he is currently litigating"), and, when Shah approached Plaintiff at that time, Plaintiff informed Shah that he "was not in possession of the outstanding discovery documents" at issue in this case. (Id., at 2.)
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A court may dismiss an action under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute, where the plaintiff fails to fulfill his general obligation to prosecute his case diligently. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982); West v. City of New York, 130 F.R.D. 522, 526 (S.D.N.Y. 1990) ("A plaintiff's lack of diligence alone is enough for dismissal." (citation omitted)). In deciding whether to dismiss an action for failure to prosecute, the Court should consider: "(1) the duration of plaintiff's failures or non-compliance; (2) whether plaintiff had notice that such conduct would result in dismissal; (3) whether prejudice to the defendant is likely to result; (4) whether the court balanced its interest in managing its docket against plaintiff's interest in receiving an opportunity to be heard; and (5) whether the court adequately considered the efficacy of a sanction less draconian than dismissal." Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 63 (2d Cir. 2000) (citing Nita v. Conn. Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994)). The claim of a pro se plaintiff, in particular, "should be dismissed for failure to prosecute 'only when the circumstances are sufficiently extreme.'" Baptiste v. Sommers, 768 F.3d 212, 217 (2d Cir. 2014) (quoting LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001)).
Separately, Rule 37(b) of the Federal Rules of Civil Procedure provides that sanctions may be imposed against a plaintiff who fails to comply with discovery orders. Fed. R. Civ. P. 37(b)(2)(A). "[A]ll litigants, including pro ses, have an obligation to comply with court orders." Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir. 2009) (quoting Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990)). While Rule 37(b) expressly allows for the sanction of dismissal, see id., and a plaintiff's extended delinquency in meeting discovery obligations can provide sufficient grounds for dismissal of his claims, see, e.g., Minotti, 895 F.2d at 103; Angermeir v. Cohen, No. 12cv55 (KBF), 2015 WL 3766683, at *2 (S.D.N.Y. Jun. 17, 2015), the likely effectiveness of lesser sanctions should be considered before a court opts for the severe sanction of dismissal, see S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010); see also Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007) (noting that "[t]he sanction of dismissal is a drastic remedy that should be imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions" (internal quotation marks and citation omitted)). Among the lesser sanctions that may be considered under Rule 37(b) for a violation of discovery orders is the sanction of "prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence." Fed. R. Civ. P. 37(b)(2)(A)(ii).
II. APPROPRIATENESS OF SANCTIONS IN THIS CASE
Assuming that Plaintiff's brief letter of December 6, 2018 was intended to be a response to this Court's Order To Show Cause, that response was plainly insufficient. Not only was Plaintiff's submission untimely by several weeks, but, as noted above, Plaintiff's bare statement that he was out of town for his grandchild's birth offered no information directed to his particular and long-standing failures to comply with the Court's discovery orders. Further, Plaintiff's assurance that he was "ready to proceed" (see Dkt. 71), even if earnest, did not even demonstrate a commitment to producing the still-outstanding materials that were the subjects of this Court's June 1 and July 9, 2018 Orders. Plaintiff also could not rationally take the position (as he seems to have suggested to Defendants' counsel) that he did not have any of the materials in question in his possession, custody, or control, given that one of the items that this Court repeatedly and explicitly instructed Plaintiff to provide to Defendants was an authorization - in a form provided by Defendants - for the release of his student records. In these circumstances, Plaintiff's failure to comply with this Court's discovery orders, as well as the Order To Show Cause, warrants sanctions.
Nonetheless, this Court does not recommend the draconian sanction of dismissal. Dismissal under Rule 41(b) for failure to prosecute would certainly be unduly harsh, given that Plaintiff has recently filed a submission with the Court stating that he is "ready to proceed," and that, on at least three occasions since the date of the Order To Show Cause, he has apparently been in contact with Defendants' counsel about this case. Where a pro se plaintiff has engaged in conduct that appears to manifest a desire to continue to prosecute his case, the court should refrain from issuing a Rule 41(b) dismissal. See Baptiste, 768 F.3d at 217 (finding that dismissal was unwarranted where, even after a delay of almost two years, plaintiff eventually obtained counsel and then complied with the court's directives). Further, while this Court's repeated discovery orders would be rendered meaningless, were their violation to have no consequence, Plaintiff's disregard of the orders at issue here can be addressed effectively under Rule 37(b) by the imposition of sanctions that are tailored to his acts of noncompliance, and that are less severe than dismissal. See Shcherbakovskiy, 490 F.3d at 140 (noting that "the severity of sanction must be commensurate with the non-compliance").
First, with respect to Plaintiff's continued failure to produce a copy of the affidavit that he had previously submitted to the state court (or to explain why he was unable to obtain a copy from the state court, after having been directed by this Court, on June 1, 2018, "to take prompt steps" to do so (Dkt. 65)), I recommend that he be precluded from introducing that affidavit, for any purpose, on summary judgment or at trial. This sanction would ameliorate any prejudice to Defendants arising from Plaintiff's failure to produce this document, and would be a logical consequence of Plaintiff's noncompliance with the Court's orders to produce it. See Thompson v. Jamaica Hosp. Med. Ctr., No. 13cv1896 (RWS), 2015 WL 3824254, at *4 (S.D.N.Y. June 19, 2015) (sanctioning plaintiff, for noncompliance with court order to produce certain documents, by precluding plaintiff from introducing such documents into evidence at trial); Vaccaro v. Waterfront Homes Marina, No. 10cv4288 NRB, 2011 WL 5980997, at *3 (S.D.N.Y. Nov. 30, 2011) (same).
Second, with respect to Plaintiff's failure to provide a completed and executed authorization for the release of his educational records from NYU, I recommend - as Defendants themselves proposed, in their motion, as an alternative sanction to dismissal (see Dkt. 68, at 3) - that Plaintiff be precluded from claiming, on summary judgment or at trial, any economic damages flowing from his allegedly unlawful arrest. More specifically, I recommend that Plaintiff be precluded from claiming any economic damages resulting from the arrest's impact on his ability to open a bank.
As explained by Plaintiff to this Court in a discovery conference, and as set out by Defendants in their August 22, 2018 letter motion, it is Plaintiff's contention that, had he not been wrongfully arrested by Defendants, he would have proceeded on a planned career path of opening a bank, something he asserts he would have been qualified to do as the result of credentials he had received through career-advancement classes at NYU. (See id. (explaining Plaintiff's contention that "he had undergone years of schooling at [NYU] in order to create a bank, but could no longer open that bank because of his underlying arrest").) Plaintiff further contends that the loss of his ability to open a bank caused him a substantial loss of future income, which he seeks to recover as damages in this case. Records from NYU showing the classes that Plaintiff attended there are, therefore, directly relevant to Plaintiff's economic damages claim, and his refusal to allow the release of those records has prejudiced Defendants' ability to defend against that claim. Precluding Plaintiff from proceeding with this damages claim would eliminate this prejudice and would also serve to deter future noncompliance with court orders.
CONCLUSION
For all of the foregoing reasons, I recommend that Defendants' pending motion to dismiss or, alternatively, for preclusive sanctions (Dkt. 68) be granted in part and denied in part, as follows:
(1) To the extent Defendants seek dismissal of Plaintiff's Complaint either under Rule 41(b), for failure to prosecute, or under Rule 37(b), as a sanction for noncompliance with this Court's discovery orders, I recommend that the motion be denied.
(2) To the extent Defendants seek preclusive sanctions under Rule 37(b), I recommend that the motion be granted, and that:
(a) Plaintiff be precluded from introducing into evidence, for any purpose, either on summary judgment or at trial, any affidavit he submitted to the state court in connection with his underlying criminal case; and
(b) Plaintiff be precluded from claiming, either on summary judgment or at trial, any economic damages based the effect of his arrest on his ability to open a bank.
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 to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lorna G. Schofield, at the United States Courthouse, 500 Pearl Street, Room 201, New York, New York, 10007, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, Room 1660, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Schofield. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York
February 8, 2019
Respectfully submitted,
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies to: Mr. Hans George Alexander
712 Union Avenue
Bronx, NY 10455 Defense counsel (via ECF)