Opinion
05 Civ. 7840 (SAS).
August 22, 2006
Plaintiff (Pro Se):
Maureen Egan New Bedford, Massachusetts
For Defendant Moriarty:
Richard E. Rosberger Assistant United States Attorney New York, New York.
For Defendants City of New York, Linda Tacoma and Joseph Iodice:
Prathi Reddy Assistant Corporation Counsel New York, New York.
OPINION AND ORDER
I. INTRODUCTION
With the assistance of counsel, plaintiff Maureen Egan brought an action under 42 U.S.C. § 1983 alleging, inter alia, false arrest, false imprisonment, excessive force, malicious prosecution and loss of funds. In particular, Egan claims that on April 2, 2004, police officers and members of the United States Postal Inspector's Office dragged her from her motor vehicle, falsely arrested her, and unlawfully seized approximately $43,000 in cash. Furthermore, Egan claims that she was improperly detained at the Bronx County District Attorney's Office for several hours and then released without ever being prosecuted.
Egan is now proceeding pro se as her former counsel's request to withdraw from the case was granted on May 23, 2006.
Defendant Robert Moriarty, a postal inspector with the United States Postal Inspection Service, is alleged to have been a member of the arresting team as is defendant Joseph Iodice, a police officer with the New York City Police Department ("NYPD"). Defendant Linda Tacoma is an Assistant District Attorney in the Bronx County District Attorney's Office. Moriarty, Iodice, Tacoma and the City of New York (collectively "defendants") move to dismiss plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) for failure to comply with this Court's discovery orders and Rule 41(b) for failure to prosecute. For the following reasons, defendants' motion is conditionally granted and plaintiff's Complaint is dismissed, subject to reinstatement if certain conditions are met in a timely manner.
In summary, plaintiff has obstructed discovery and deliberately flouted this Court's discovery orders. At her deposition, in violation of this Court's telephonic orders, and in disregard of the warning that defendants' counsel could move for dismissal if plaintiff did not comply with such orders, Egan refused to respond to questions seeking information about her friend, Paul Marino. Because Marino was in Egan's motor vehicle at the time of her arrest, he was identified as a person having knowledge about the circumstances surrounding plaintiff's purported false arrest. Moreover, he was one of two witnesses plaintiff anticipated calling as a witness at trial. Given plaintiff's willful violation of this Court's discovery orders and her obstruction of discovery, the only effective sanction is a conditional dismissal of her Complaint.
In her initial disclosures pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure, plaintiff identified Marino as having information relating to the circumstances surrounding her "sham arrest" and the alleged illegal seizure of her money. See Plaintiff's Initial Disclosures, Ex. A to the Declaration of Richard E. Rosberger ("Rosberger Decl."), Assistant United States Attorney, at ¶ A(6). Marino is also identified as one of the witnesses plaintiff anticipates calling at trial. See id. ¶ C.
II. BACKGROUND
A. Plaintiff's Complaint
Planning to drive to her new home in New Bedford Massachusetts from her apartment in the Bronx, plaintiff had just finished packing her belongings into her Chevrolet Suburban truck and a U-Haul trailer at approximately 1:25 p.m. on April 2, 2004. Plaintiff was seated in the passenger seat of her vehicle while her friend, Marino, was in the driver's seat. As Marino started the engine, a group of plain-clothed officers surrounded the vehicle and demanded that the occupants get out. Plaintiff complied with the officers' request, at which point she was dragged out onto the street and handcuffed. Marino was pulled out of the vehicle, handcuffed, put into a police vehicle and driven away. According to plaintiff, Marino was released from state custody on March 30, 2006, after completing a term of incarceration for attempted criminal possession of a forged instrument.
See Plaintiff's Verified Complaint ("Compl."), dated September 2005, Ex. A to the Declaration of Prathi Reddy ("Reddy Decl."), Assistant Corporation Counsel, ¶ 11.
See id. ¶ 12.
See id.
See id. ¶¶ 12-13.
See id. ¶ 12.
See Plaintiff's Response to Defendants' Motion to Dismiss ("Pl. Opp.").
After Marino had left the scene, plaintiff was uncuffed so she could retrieve her cats from the vehicle. While retrieving her second cat, plaintiff tried to secure approximately $43,000 in cash, shrink-wrapped and enclosed in a yellow towel in her gym bag. As she took the towel out of the vehicle, a police officer grabbed her arm and confiscated the money. Plaintiff was then handcuffed again, placed inside a police vehicle, and taken to Central Booking located at 161st Street in the Bronx. While at Central Booking, Egan was interrogated for several hours by Iodice and Moriarty who questioned her about Marino's activities. Later on, Tacoma entered the interrogation room and identified herself as an Assistant District Attorney. Tacoma apologized to Egan and assured her that her money and property would be returned to her. After being in custody for approximately thirteen hours, Egan was driven home by Iodice and Moriarty.
See Compl. ¶ 13.
See id.
See id. ¶ 15.
See id. ¶ 16.
See id. ¶ 17.
See id.
See id.
B. Plaintiff's Deposition
Plaintiff's deposition was noticed to take place on May 15, 2006, at 11:00 a.m. at the United States Attorney's Office at 86 Chambers Street, New York, New York. Plaintiff arrived at approximately 12:15 p.m. Once the deposition began, plaintiff was immediately combative and evasive in her answers despite her attorney's directives that she respond. In particular, plaintiff evaded and refused to answer questions about Marino. For example, she refused to answer questions as to whether Marino had been at her home in New Bedford within the past two weeks. When asked when was the last time she spoke to Marino, Egan responded "No Comment." In response to the question whether she knew where Marino lived, she responded "No comment." When asked how she would contact Marino if she needed to, she responded "He calls me." Because of plaintiff's refusal to answer questions about Marino, and her nonresponsive answers, the parties called the Court seeking guidance. Moriarty's attorney, Richard E. Rosberger, informed the Court that plaintiff refused to answer any questions concerning Marino. After some discussion, I ruled that plaintiff "has to disclose what she knows about Paul Marino."
See 5/15/06 Deposition of Maureen Egan ("Egan Dep."), Ex. B to the Rosberger Decl., at 14-15.
Id. at 9.
Id.
Id. at 18.
See id. at 51-72.
See id. at 56.
Id. at 71.
Following the Court's initial ruling, Rosberger inquired into plaintiff's knowledge of Marino's criminal history, only to be met once again with Egan's evasiveness.
Q: I'm asking you yes or no, this is a yes or no question. Besides what you just testified to, did you know anything else as of April 2nd, 2004 with respect to Paul Marino's criminal history?
A; I will state it again. As of April 2nd, 2004, Paul Marino had had a criminal history. Do I know about it? What he's told me, as I stated three times already, don't care, don't recall, don't want to remember, doesn't belong in my brain. That's my answer. Next question.
Id. at 85-86.
Nor would plaintiff responsively answer when Rosberger asked her whether Marino accompanied her from New Bedford, Massachusetts to New York City to attend her deposition:
Q: Was Paul Marino with you at any time during the trip from New Bedford to New York that you made today on May 15th?
A: Paul Marino was at my house March — no, April — let me think. March 30th — April 3rd to pick up his belongings?
Q: Was Paul Marino —
A: I drove down here to meet with you today.
Q: Was Paul Marino — at any time during the trip from New Bedford to New York City to meet with us here today, was Paul Marino at any time in that vehicle?
A: He wasn't in my Suburban.
* * *
Q: What vehicle did you drive —
A: It wasn't in my Suburban.
Q. From New Bedford to New York City?
A. I don't recall.
Plaintiff previously testified that the last time she drove her Suburban was the day before her deposition and that she drove from New Bedford to New York City on the day of her deposition. See id. at 33, 87. Given that she did not drive her Suburban to her deposition, her response that Marino was not in her Suburban was intentionally misleading.
Id. at 88-89.
Plaintiff's counsel, Raymond B. Grunewald, repeatedly directed her to answer questions about Marino, and even threatened to withdraw from her case. Despite Grunewald's admonitions, plaintiff remained evasive and non-responsive.
See id. at 91-92 ("You're just — I'm withdrawing. I can't stand this. You're just being a total fool." "Answer the goddam question or I will get up — I wouldn't do that, but I will be obliged to stop. Answer the question. Stop playing pussyfoot. Stop it. Got it? Answer the question, yes or no.").
See id. at 92-94.
Out of sheer frustration, the parties called the Court a second time. Rosberger explained that plaintiff refused to testify as to whether there was anybody in the car with her on the trip from New Bedford to New York. I then gave the parties a second ruling:
See id. at 97.
See id.
Look, she gets one last chance. She can answer that question and all such questions, or you can terminate this deposition and you can move to dismiss the case. . . . Of course she should answer who was in the car. She doesn't have to answer about just anybody, but she does have to answer whether Paul Marino was in the car. . . . The question was Paul Marino in the car. The question has to be answered, not who was in the car.
Id. at 98-99.
In complete disregard of the above ruling, plaintiff continued to avoid Rosberger's questions:
Q: During your trip from New Bedford, Massachusetts to New York City to attend this deposition today on May 15th, was Paul Marino ever in the vehicle?
A: Paul Marino was in the vehicle.
* * * *
Q: Where during the course of your trip from New Bedford, Massachusetts to New York City did Paul Marino first enter the vehicle?
A: I don't recall the location. I answered your question, next question.
* * * *
Q: Did Paul Marino enter the vehicle that you drove — in your trip from New Bedford, Massachusetts to New York City that you took to attend this deposition, did Paul Marino enter your vehicle in New Bedford, Massachusetts?
A: Paul Marino was in the vehicle as I arrived here.
Id. at 101-02.
The following colloquy ensued between Egan, her attorney and Rosberger:
MR. GRUNEWALD: The question is very specific.
THE WITNESS: I heard it.
MR. GRUNEWALD: Well, then you better answer it.
THE WITNESS: I don't recall.
MR. GRUNEWALD: You don't recall if he was in the car with you?
THE WITNESS: No.
MR. ROSBERGER: I think we have no choice but to adjourn this.
MR. GRUNEWALD: You're finished. The case is out the window. Kiss your ass good-bye.
Id. at 102.
Following this exchange, counsel for the City of New York closed the deposition in contemplation of making the instant motion.
See id. at 102-03.
On May 18, 2006, Grunewald sought permission to withdraw as plaintiff's counsel. In making this application, he advised the Court that plaintiff made clear that "she will not answer questions about Paul Marino despite the Court's admonition to do so on pain of dismissal of her cause of action." Grunewald's request was granted on May 23, 2006.
5/18/06 Letter from Grunewald to the Court, Ex. C to the Rosberger Decl., at 1 (emphasis in original).
III. LEGAL STANDARDS
A. Failure to Obey Discovery Orders
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: . . . An order . . . dismissing the action or proceeding or any part thereof. . . ." A district court has "broad power" to impose Rule 37(b) sanctions in response to abusive litigation practices. Furthermore, willful or conscious disregard for the discovery process justifies the sanction of dismissal. Under Rule 37, "the severe sanction of dismissal with prejudice may be imposed even against a plaintiff proceeding pro se, so long as a warning has been given that noncompliance can result in dismissal." 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."
Minotti v. Lensink, 895 F.2d 100, 102 (2d Cir. 1990) (per curiam) (affirming dismissal of pro se complaint for plaintiff's failure "to heed discovery orders").
See Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991) ("When a party seeks to frustrate [discovery] by disobeying discovery orders, thereby preventing disclosure of facts essential to an adjudication of the merits, severe sanctions are appropriate"); John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988) ("[d]ismissal under Rule 37 is warranted . . . where a party fails to comply with the court's discovery orders willfully, in bad faith, or through fault"); Carvalho v. Reid, 193 F.R.D. 149, 151 (S.D.N.Y. 2000) (dismissing case where pro se "plaintiff's conduct in thwarting discovery was, at the very least, willful").
Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994).
John B. Hull, Inc., 845 F.2d at 1176.
B. Failure to Prosecute
Rule 41(b) states that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." In determining whether dismissal is appropriate under Rule 41(b), courts look to the following factors:
(1) the duration of the plaintiff's failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendants are likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
Spencer v. Doe, 139 F.3d 107, 112-13 (2d Cir. 1998). Accord Shannon v. General Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999) (affirming district court's dismissal under Rule 41 for failure to prosecute).
And while it is well-settled that a district court has the "inherent power" to dismiss a case for lack of prosecution pursuant to Rule 41(b), dismissal is "a harsh remedy to be utilized only in extreme situations."
IV. DISCUSSION
Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962).
Harding v. Federal Reserve Bank of New York, 707 F.2d 46, 50 (2d Cir. 1983).
In McDonald v. Head Criminal Court Supervisor Officer, the Second Circuit addressed the situation where a pro se litigant refused to answer questions during his deposition. McDonald was incarcerated when he brought a pro se action pursuant to 42 U.S.C. § 1983. During the course of discovery, the district court ordered that his deposition go forward and instructed plaintiff to answer all questions put to him. The court also informed plaintiff that his failure to comply with the court's order could lead to such serious sanctions as dismissal of his complaint. Despite the court's order, plaintiff refused to answer questions concerning, inter alia, his back injuries, his criminal history, his alleged aliases, and his wife's address. The district court granted defendant's motion to dismiss under Rule 37(b)(2) (C), noting that
850 F.2d 121 (2d Cir. 1988).
See id. at 122.
See id. at 123.
See id.
See id.
"special solicitude for the difficulties that a pro se plaintiff must face does not extend to the wilful, obstinate refusal to play by the basic rules of the system upon whose very power the plaintiff is calling to vindicate his rights."
Id. at 124 (quoting McDonald v. Head Criminal Court Supervisor Officer, 117 F.R.D. 55, 58 (S.D.N.Y. 1987)).
The Second Circuit affirmed the district court's dismissal, finding the lower court to be "well within its discretion in determining that McDonald had acted in bad faith in violating the court's discovery order." According to the Second Circuit,
Id.
while pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions. Here, McDonald was clearly warned about the consequences that would follow ifhe disobeyed the court's order.
Id.
Here, as in McDonald, plaintiff failed to obey court-ordered discovery rulings by refusing to answer questions about Marino despite being warned that defendants could move for dismissal should plaintiff fail to comply. Indeed, the grounds for dismissal in this case are even stronger than in McDonald because Egan had the benefit of counsel during her deposition. Thus, her intransigence is even more egregious given her own counsel's advice that she stop being so obstructionist and provide responsive answers to defendants' questions. Furthermore, plaintiff was put on notice that her case could be dismissed if she refused to answer questions about Marino. These circumstances support dismissal under Rule 37(b)(2)(C) as the appropriate sanction.
See Egan Dep. at 100-02.
See id. at 98.
Because I find that dismissal under Rule 37(b) is appropriate, I need reach the issue of whether dismissal is also proper under Rule 41(b).
Plaintiff has offered no countervailing arguments as to why her case should be allowed to go forward in light of her previous conduct. Instead, plaintiff maintains that questions regarding Marino have no relevance to her case. In support of this view, plaintiff erroneously limits her focus to Marino's whereabouts and contact information which, she claims, is publicly available through Marino's parole officer. She thereby justifies her previous obstinance while shifting the blame onto defendants' attorneys and this Court. What plaintiff neglects, however, is that her relationship with Marino is as relevant as his whereabouts, or more so. For instance, Marino's credibility is in issue given that his testimony may be colored by a close, personal relationship with plaintiff. Their relationship is therefore relevant and, hence, discoverable. Rather that off an excuse for her behavior, plaintiff attempts to absolve herself of any wrongdoing with self-serving arguments that ultimately prove unavailing. Accordingly, the Court's conclusion that dismissal is the appropriate sanction remains unaltered.
See Pl. Opp. at 1 ("Questions regarding Paul Marino which have no relevance to these proceedings were agreed would not be answered. His whereabouts, my contact with him prior or post April 2, 2004 have absolutely no relevance to these proceedings.").
See id. at 1-2.
See id. at 2 ("Therefore, all mention by the defendants' attorneys, the court or anyone else concerned that his whereabouts can only be obtained by me being directly deposed is nothing short of ludicrous and a continued smoke and mirror tactic to convenience this court to dismiss this matter with grounds.").
V. CONCLUSION
Because plaintiff has wilfully and in bad faith failed to comply with two of this Court's discovery orders, her case is hereby dismissed. To avoid such a draconian outcome, the dismissal is conditional. Accordingly, plaintiff's action will be reinstated if she meets certain requirements. To wit, plaintiff must make herself available to defendants for deposition within the next thirty (30) days, with or without counsel. Furthermore, plaintiff's responses to all questions, including those regarding Paul Marino, must be deemed adequate by this Court. In determining adequacy, this Court will consult with all parties and will review the deposition transcript independently. If plaintiff fails to meet either of these requirements, her case will remain dismissed with prejudice. The Clerk of the Court is directed to close defendants' motions (Documents # 21 and 25) and this case, subject to reinstatement by Court notice.
SO ORDERED.