05 CV 4341 (RJD) (LB).
June 20, 2007
REPORT AND RECOMMENDATION
The instant action was referred to the undersigned for all pretrial purposes. On April 17, 2007, I granted plaintiff's request to reschedule his April 13, 2007 Court ordered deposition and ordered him to appear for his rescheduled deposition on May 21, 2007. By letter to the Court dated May 30, 2007, counsel informs the Court that plaintiff failed to appear for his rescheduled deposition on May 21 as ordered. Plaintiff was explicitly warned that I would recommend that his case should be dismissed if he failed to appear for his deposition on May 21. As plaintiff failed to appear as ordered, it is respectfully recommended that plaintiff's case should be dismissed.
Plaintiff filed this pro se action pursuant to the American with Disabilities Act, 42 U.S.C. § 1201 et seq. on September 1, 2005 against the New York City Department of Education (the "defendant") alleging that defendant discriminated against him when it failed to hire him because of his status as a recovering drug addict. Plaintiff's application to proceed in forma pauperis was granted, and the United States Marshals Service served defendant. Defendant requested and was granted permission to move to dismiss plaintiff's complaint. Plaintiff filed an amended complaint on March 29, 2006 and defendant was directed to respond to plaintiff's amended complaint. On August 9, 2006 defendant moved to dismiss plaintiff's amended complaint and by Memorandum and Order dated October 18, 2006, the Court denied defendant's motion. The Court held an initial conference in this matter on December 6, 2006 and set February 16, 2007 as the deadline for the completion of all discovery in this matter. On January 23, 2007, I granted defendant's request to extend the discovery deadline until March 16, 2007.
By letter to the Court dated March 16, 2007, counsel for defendant requested a second extension of the discovery deadline and informed the Court that plaintiff had failed to appear without warning for his deposition which had been noticed for March 9, 2007. By order dated March 19, 2007, I granted defendant's request for an extension of the discovery deadline and ordered plaintiff to appear for his deposition on April 13, 2007. My order informed plaintiff that if he failed to appear for his deposition, I would recommend that this case should be dismissed pursuant to Fed.R.Civ.P. 37(d).
On April 9, 2007, plaintiff requested that his deposition be rescheduled. By order dated April 17, 2007, I granted plaintiff's request and ordered plaintiff to appear for his deposition on May 21, 2007. The Court explicitly warned plaintiff that if he failed to appear for his deposition on May 21, the action would be dismissed pursuant to Fed.R.Civ.P. 37(d). Defendant informs the Court that plaintiff failed to appear as ordered on May 21, 2007.
The Court may dismiss a complaint for a party's failure to comply with a Court Order regarding discovery. See Fed.R.Civ.P. 37(b)(2)(C) (". . . 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) [a]n order . . . dismissing the action or proceeding or any part thereof . . ."). In particular, Rule 37 applies to a litigant's failure to appear for his or her deposition. See, e.g., Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759 (2d Cir. 1990) (affirming dismissal of action, pursuant to Fed.R.Civ.P. 37, for pro se plaintiffs refusal to appear at her deposition);Salahuddin v. Harris, 782 F.2d 1127 (2d Cir. 1986) (motion to dismiss for failure to participate in deposition is properly considered under Fed.R.Civ.P. 37).
In deciding whether to impose sanctions under Rule 37, the Court considers the following factors: "(1) the willfulness of the noncompliant party or the reasons for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the noncompliant party had been warned of the consequences of his noncompliance." Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002) (citing Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849 (2d Cir. 1995)). "Dismissal under Fed.R.Civ.P. 37 . . . should be imposed only in extreme circumstances" where the failure to comply is due to "willfulness, bad faith, or any fault." Salahuddin, 782 F.2d at 1132 (internal quotes omitted). However, "[t]he severe sanction of dismissal with prejudice may be imposed even against a plaintiff who is proceeding pro se, so long as warning has been given that noncompliance can result in dismissal." Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir. 1994). This sanction is available even against pro se litigants because "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." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988).
Plaintiff has been given several chances to comply with the Court's Order. Plaintiff has failed to appear for two depositions, the first noticed by defendant for March 9, 2007, and the second ordered by the Court for May 21, 2007. Moreover, the Court explicitly warned plaintiff that it would recommend dismissal of this action if he failed to appear as ordered for his deposition. Plaintiff has not given the Court any basis to excuse his failure to appear for his deposition in this matter. The Court finds that plaintiff's failure to comply with the Court's Order is willful and cannot be tolerated.
Plaintiff's refusal to comply with the Court's Order and his willful disregard for the Court's authority warrants dismissal of the complaint with prejudice. See Bobal, 916 F.2d 759 (2d Cir. 1990) ( pro se plaintiff stated the conference scheduling her deposition was improper and failed to appear at deposition);McDonald, 850 F.2d 121 (2d Cir. 1988) ( pro se plaintiff refused to answer questions at deposition, even when reminded of his obligation pursuant to the Court's Orders). Here, as in Bobal andMcDonald, plaintiff's refusal to comply with the Court's Order is not based on any misunderstanding, but on plaintiff's willfulness and bad faith.
The interest of justice is not served by giving plaintiff unlimited chances to obey the Court's Order. Rather than dismissing the action upon plaintiff's earlier failure to appear, the Court afforded plaintiff the opportunity to comply. However plaintiff did not comply. Accordingly, it is respectfully recommended that plaintiff's action should be dismissed.
FILING OF OBJECTIONS TO REPORT AND RECOMMENDATIONPursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made within the ten-day period. Failure to file a timely objection to this Report generally waives any further judicial review.Marcella v. Capital District Physician's Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); see Thomas v. Am, 474 U.S. 140 (1985).