96 CIV 7699 (GBD)
January 18, 2001
MEMORANDUM OPINION AND ORDER
Pursuant to Fed.R.Civ.P. 37(b)(2)(c), defendants move to dismiss plaintiff's complaint on the grounds that plaintiff willfully and repeatedly refused to complete his oral deposition. On July 20, 2000, plaintiff refused to complete a second scheduled deposition after being warned by his attorney and personally ordered by the Court to complete his deposition or have his case dismissed.
On October 10, 1996, plaintiff, who was then an inmate in Green Haven Correctional Facility, filed a pro se claim based on 28 U.S.C. § 1983 alleging that prison officials retaliated against him by denying him certain privileges because plaintiff filed grievances relating to activities at the prison's medical facility. Plaintiff was later assigned pro bono counsel with the law firm of Kaye, Scholer, Fierman, Hays Handler.
On January 30, 2000, with plaintiff counsel's consent, United States District Judge Michael B. Mukasey signed a written order granting defendant's application to depose the plaintiff. Both plaintiff's counsel and defendants' counsel agreed and intended that plaintiff's deposition would be conducted on March 3, 2000 without further order from the court. On March 3, 2000, counsel for both parties traveled to Woodbourne Correctional Facility in Sullivan County, New York, where plaintiff is presently an inmate, to conduct plaintiff's deposition. After answering some initial preliminary questions, plaintiff unexpectedly informed his attorney that he refused to proceed in "the absence of a formal Rule 30 Order." (Pl's Dep. of 3/3/00 at 5.) As a courtesy to plaintiff's counsel, defendants' counsel agreed to adjourn the deposition in order to obtain such an order.
Plaintiff's counsel stated for the record, "I have discussed the following with the counsel for the Attorney General. Rule 30 of the Federal Rules of Civil Procedure requires that a federal judge issue an order with respect to the deposition of an incarcerated plaintiff. Prior to this deposition, the Attorney General had offered to make such a motion, and it had appeared that we'd just do it on consent. However, I have learned from my client today that he objects to the absence of a formal Rule 30 Order from the judge and he wants an order issued before he's prepared to proceed. Mr. Camuzo, on behalf of the State, has told me that he will not object to making such a formal application and getting such a formal Order." (Pl.'s Dep. of 3/3/00 at 4-5.)
On June 21, 2000, defendants served plaintiff's counsel with a motion to take plaintiff's oral deposition pursuant to Fed.R.Civ.P. 30(a). On June 23, 2000, this Court granted defendant's motion and signed an order which authorized the second scheduled deposition. That order included the following warning: "Plaintiff is further advised that if he fails to attend or complete his deposition, the Court may impose sanctions pursuant to Fed.R.Civ.P. 37(d), which may include an order dismissing the complaint in this action." On July 3, 2000, after consulting with plaintiff's counsel, defendants' counsel served plaintiff's counsel with a notice of deposition for July 20, 2000.
On July 20, 2000, counsel for both parties traveled for a second time to Woodbourne Correctional Facility to depose plaintiff. After answering a few preliminary questions, plaintiff again refused to answer any further questions. Plaintiff stated, "This hearing is illegal and I object to it . . . because you can't proceed without a court order." Plaintiff now demanded that he be personally served with the court's order prior to the date of any scheduled deposition. Plaintiff's counsel confirmed on the record counsel's prior receipt of the Rule 30(a) Order and stated that he had previously notified plaintiff of the deposition on two prior occasions. Defendants' counsel read the last paragraph of the Court's order to plaintiff, which warned of possible sanctions for refusing to proceed with this second scheduled deposition. (Pl.'s Dep. of 7/20/00 at 3-8.) As plaintiff continued his refusal to proceed with his deposition, his attorney advised and warned him:
"[A]s your counsel, I am telling you if we do not continue with this deposition, we are going to have to call the judge. The judge may possibly dismiss this suit . . . my firm has done everything possible legally to notify you of this deposition. While we, in fact, may have failed to send you an actual copy of the judge's order, despite the fact that we said in the letter that we would include that, there is no reason for you not to continue with this deposition. . . If you are not going to continue with the deposition, then we will have to call Judge Daniels now; is that what you want us to do?" (Pl.'s Dep. of 7/20/00 at 10-11.)
Plaintiff replied, "Make sure to tell him I'm here," as counsel for both parties called this Court. During the on-the-record telephone conference with the court, defendants' counsel requested that the case be dismissed, while plaintiff's counsel informed the Court that he had already advised his client to continue with his deposition. The following conversation occurred on the record between the Court, plaintiff's counsel and plaintiff:
THE COURT: Is the plaintiff there?
PLAINTIFF'S COUNSEL: Yes, Your Honor . . . I have advised the plaintiff that he has to continue today. I am not advising him not to continue with the deposition. The plaintiff is here, he is in earshot of the speaker phone. However, he is refusing to speak to Your Honor.
THE COURT: [A]dvise your client that if he doesn't continue with this deposition, his case will be dismissed.
PLAINTIFF'S COUNSEL: Mr. Davis [plaintiff], do you understand that?
PLAINTIFF: (no audible response)
THE COURT: No more discussion. I don't care if he discusses it with me or not. You tell him if he wants this lawsuit to go forward, he has the responsibility to be deposed. Every witness has to be deposed in this case. If he is unwilling to be deposed, then that means he does not want to go forward with this case. Now sir [plaintiff], if there is anything you want to say to me, you can say it now. If you don't want to talk to me, that's fine, but if I am told, after today, that this deposition was not completed because you refused to be deposed, your case will be dismissed. Now, this is not negotiable.
PLAINTIFF'S COUNSEL: Mr. Davis, do you have anything you would like to say to his Honor?
PLAINTIFF: (no audible response).
PLAINTIFF'S COUNSEL: Let the record reflect that Mr. Davis is refusing to answer the question. (Pl.'s Dep. of 7/20/00 at 13-15.)
Plaintiff, who was within earshot of the speaker phone, refused to speak to the Court and turned his back to the telephone. During the telephone conference, the Court gave plaintiff every opportunity to personally address any concerns he had about the deposition, or to offer explanations for his conduct. Plaintiff simply refused to respond or communicate with the court.
At the end of the conference, this Court stated:
"I would assume that the deposition is going to go forward and be completed so Mr. Davis can have his day in court. If you tell me that he still continues to refuse to continue with this deposition, then I will assume that Mr. Davis does not wish to go forward with this case because he knows what the consequences are. I will entertain a motion that the Attorney General dismiss this case for failure to prosecute." (Id. at 15-16.)
Despite his own attorney's advice and another chance from this Court to complete his deposition, plaintiff did not proceed with the deposition. After the telephone conference ended, plaintiff's counsel asked plaintiff whether he would like to continue with the deposition. Plaintiff offered no response. Plaintiff's counsel then stated for the record, "Mr. Davis is refusing to answer and we shall consider this deposition finished." Defendant's counsel then added for the record, "Let the record reflect that the plaintiff has absolutely refused to comply with the court order and to undertake the deposition." (Pl's Dep. of 7/20/00 at 16.)
Defendants now move to dismiss this action pursuant to Fed.R.Civ.P. 37(b)(2)(C) for plaintiff's willful refusal to submit to an oral deposition. Rule 37(b)(2)(C) provides, in pertinent part:
If 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: (C) An order . . . dismissing the action or proceeding or any part thereof; or rendering a judgment by default against the disobedient party.
Dismissal of an action with prejudice is a "harsh remedy to be used only in extreme situations," but may be justified when the court finds "wilfulness, bad faith, or any fault on the part of the prospective deponent." Bobal v. Rensselaer, 916 F.2d 759, 764 (2d Cir. 1990). Noncompliance with discovery orders is considered wilful when the court's orders have been clear, when the party has understood them, and when the party's non-compliance is not due to factors beyond the party's control.Baba v. Japan Travel Bureau Int'l., Inc., 165 F.R.D. 398, 402-403 (S.D.N.Y. 1996) (citing Societe Internationale Pour Participations Industrielles et Commerciales v. Rogers, 357 U.S. 197, 212-13, 78 S.Ct. 1087, 1096). Orders of dismissal have been consistently upheld in cases where the trial court issued sufficient warnings that noncompliance may result in dismissal. See e.g. Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir. 1994) (upholding dismissal of case in which pro se plaintiff refused to comply with court orders to appear for a deposition after being repeatedly warned that his case would be dismissed); Bobal, 916 F.2d at 766 (affirming dismissal of pro se action where court warned plaintiff that failure to appear for deposition could result in dismissal); Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 5 (2d Cir. 1997) (affirming dismissal of pro se action where court explicitly warned plaintiff on numerous occasions that noncompliance with discovery orders, including inadequate and evasive deposition answers, would result in sanctions and possible dismissal of the case).
This Court gave clear and explicit orders to plaintiff to complete his deposition or face dismissal of his case. The Court's June 23, 2000 written order warned that severe sanctions could be imposed if plaintiff failed to complete the second scheduled deposition. Plaintiff's attorney advised his client to complete his deposition, otherwise his case may be dismissed by the Court. During the telephone conference on July 20, 2000, this Court specifically admonished plaintiff twice to complete his deposition or face dismissal of his case. Despite these warnings and several opportunities to comply, plaintiff refused to submit to the deposition.
Plaintiff's counsel now argues on plaintiff's behalf that plaintiff refused to proceed with the July 20, 2000 deposition on the basis of his good-faith belief that he must personally receive a copy of the formal Rule 30(a) order prior to his deposition. However, as plaintiff's counsel acknowledged at the time, plaintiff was aware that his counsel had received a copy of the June 23, 2000 Order, and on two separate occasions counsel informed his client of the upcoming deposition. Furthermore, plaintiff expressed no objection to proceeding with his deposition before it was arranged and began for the second time. Plaintiff also saw a copy of the Court's formal order during his July 20, 2000 deposition. More importantly, during the telephone conference, the Court directly and personally ordered plaintiff to go forward with his deposition. Plaintiff was clearly advised on several occasions of the serious consequences of dismissal for his continued refusal to be deposed.
Plaintiff also now attempts to claim that he was unable to hear the Court during the telephone conference due to the physical structure of the deposition room, combined with the interference by prison guards and a ringing in his ear related to an old war injury. However, plaintiff's statements and body language noted throughout the transcript lead clearly to a different conclusion. Prior to the telephone conference, plaintiff told counsel to "make sure to tell him [this Court] I'm here," after being advised that the Court would be contacted by telephone. Furthermore, plaintiff's counsel indicated on the record during the telephone conference that plaintiff was within earshot of the speaker phone and refused to speak. No one disputes the fact that plaintiff defiantly turned his back to the telephone while the Court addressed him and his attorney. Plaintiff was also fully and continuously advised by his own attorney that should he fail to complete his deposition, his case would be dismissed by the Court. Unlike a pro se litigant, plaintiff had the benefit of counsel prior to, during, and after the Court directly ordered that plaintiff must proceed with the deposition or face dismissal of his lawsuit.
Finally, plaintiff's counsel further argues that plaintiff's distrust of his pro bono counsel led him to disregard his attorney's advice, and that in the interest of justice the defendants should not be allowed to escape potential liability. However, plaintiff's willful refusal to participate in the discovery process warrants dismissal without consideration of the potential merit or lack of merit of plaintiff's claim. Moreover, plaintiff's alleged deteriorating relationship with his pro bono counsel is no excuse for refusing to comply with the Court's direct order to complete his deposition. It is clear that plaintiff was a difficult client to represent, which ultimately prompted counsel to move to be relieved because of plaintiff's outrageous behavior. However, plaintiff has never expressed any desire or intention to dismiss his attorneys, a power within his discretion.
The record is clear that plaintiff fully comprehended the nature of the proceedings and its importance. In fact, it was plaintiff himself; not his lawyer, who raised what he argued as technical legal arguments against proceeding with his deposition on both occasions. It is clear that plaintiff has simply sought to defiantly manipulate and abuse the legal process, despite the defendants' acquiescence during the first deposition, plaintiff counsel's advice to the contrary, and a direct order of the Court. This Court cannot countenance such contemptuous behavior.
Counsel for both sides expended considerable effort, expense, and inconvenience in scheduling and traveling to a deposition at an upstate New York State Correctional Facility on two separate occasions, only to find that plaintiff refused to be questioned. Despite repeated warnings from both counsel and this Court, plaintiff willfully and contemptuously refused to complete his deposition. Plaintiff's final refusal to comply with a direct order from this Court that he complete his deposition warrants the severe sanction of dismissing his complaint.
For the forgoing reasons, this Court finds that plaintiff willfully refused to complete his oral deposition. Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 37(b)(2)(c) is GRANTED and the Clerk of the Court is directed to enter judgment dismissing the Complaint with prejudice.