From Casetext: Smarter Legal Research

Embuscado v. DC Comics

United States Court of Appeals, Second Circuit
Oct 1, 2009
347 F. App'x 700 (2d Cir. 2009)

Summary

upholding sanction of dismissal where plaintiff "violated a series of court orders" over period of three months

Summary of this case from Ayinola v. Lajaunie

Opinion

No. 08-1268-cv.

October 1, 2009.

Appeal from a judgment of the United States District Court for the Southern District of New York (Colleen McMahon, Judge; Douglas F. Eaton, Magistrate Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on February 8, 2008 is AFFIRMED.

Restituto Embuscado, pro se, New York, New York.

Patrick T. Perkins, Perkins Law Office, P.C., Cold Spring, New York, for Appellees.

PRESENT: PIERRE N. LEVAL, REENA RAGGI, Circuit Judges, JOHN GLEESON, District Judge.

District Judge John Gleeson of the United States District Court for the Eastern District of New York, sitting by designation.


SUMMARY ORDER

Restituto Embuscado appeals the dismissal of his two complaints pursuant to Fed.R.Civ.P. 37(b) and (d) for failure to comply with the district court's discovery orders. We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.

Dismissal pursuant to Fed.R.Civ.P. 37 is warranted "where a party fails to comply with the court's discovery orders willfully, in bad faith, or through fault." John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988). In determining whether a Rule 37 dismissal is appropriate, a court may consider a variety of factors, 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 Mortgage Corp., 555 F.3d 298, 302 (2d Cir. 2009) (internal quotation marks omitted). We review a Rule 37 dismissal for abuse of discretion. See David Steel Prods, v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991).

Here, the record demonstrates thoughtful consideration of all four factors. Specifically, Magistrate Judge Eaton's report, whose recommendation for dismissal was adopted by Judge McMahon, makes the following findings: (1) over a period of three months, from September through November 2007, Embuscado violated a series of court orders requiring the production of documents and appearance for deposition; (2) Embuscado's violations were willful and deliberate; (3) Embuscado's deliberate and persistent noncompliance rendered lesser sanctions inappropriate; and (4) defendants' October 2007 motion, combined with the magistrate judge's November 2007 warnings concerning possible dismissal, provided Embuscado with sufficient notice that further delay would result in dismissal. On this record, we identify no abuse of discretion in the district court's Rule 37 dismissal.

We have considered all of Embuscado's remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.


Summaries of

Embuscado v. DC Comics

United States Court of Appeals, Second Circuit
Oct 1, 2009
347 F. App'x 700 (2d Cir. 2009)

upholding sanction of dismissal where plaintiff "violated a series of court orders" over period of three months

Summary of this case from Ayinola v. Lajaunie

upholding dismissal where plaintiff willfully and deliberately violated a series of court orders requiring the production of documents and had been warned by the magistrate judge of a possible dismissal

Summary of this case from In re a M Florida Properties II, LLC

affirming Rule 37 dismissal where the plaintiff violated discovery orders over a three-month period

Summary of this case from Lewis v. Marlow

affirming a finding of willful noncompliance where the plaintiff "violated a series of court orders requiring the production of documents and appearance for deposition"

Summary of this case from Villalta v. J.S. Barkats, PLLC

affirming dismissal after three months of noncompliance with discovery order

Summary of this case from Lopez v. J & K Floral USA, Inc.

affirming dismissal after three months of non-compliance with discovery order

Summary of this case from Leibovitz v. City of New York

affirming terminating sanctions in case involving three months of noncompliance

Summary of this case from Grammar v. Sharinn & Lipshie, P.C.

affirming dismissal where, inter alia, over a period of three months, the plaintiff violated the Court's discovery orders

Summary of this case from Brown v. Cnty. of Nassau
Case details for

Embuscado v. DC Comics

Case Details

Full title:Restituto EMBUSCADO, Plaintiff-Appellant, v. DC COMICS, Warner Bros…

Court:United States Court of Appeals, Second Circuit

Date published: Oct 1, 2009

Citations

347 F. App'x 700 (2d Cir. 2009)

Citing Cases

Shukla v. Deloitte Consulting LLP

Second, the Court finds that Plaintiff's “deliberate and persistent noncompliance render[s] lesser sanctions…

Schuster v. Charter Commc'ns

Faced with this "deliberate and persistent noncompliance," the Court concludes that dismissal is an…