Baez et al v. The City of New York et al, No. 1:2016cv06340 - Document 28 (E.D.N.Y. 2019)
Court Description: ORDER denying 25 Motion to Dismiss for Lack of Prosecution; granting in part and denying in part 25 Motion for Sanctions. Defendant's motion for sanctions is granted to the extent that Baez is ordered to appear for and complete her depositio n before June 28, 2019. She is expressly warned that failure to comply with this order to appear for deposition will result in the dismissal of her lawsuit. She and her counsel are also directed to pay as sanctions all costs incurred by defendants in relation to her failure to appear for deposition in the period from January 22 to February 16, 2018 and of the making of this sanctions motion, including defendants' attorney's fees. The total costs shall be paid to defendants in equal shares by Baez and Epperson, although enforcement of this monetary sanction is stayed until the conclusion of the case. Defendants are directed to submit their demand for costs, including any associated time records and/or invoices, for assessment by Magistrate Judge Scanlon. Defendants' motion seeking dismissal for failure to prosecute is denied. Ordered by Judge Eric N. Vitaliano on 5/18/2019. (Siegel, Max)
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Baez et al v. The City of New York et al Doc. 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------------x VANESSA BAEZ, JOAQUIN LUGO, and CRISTINA MONTANEZ, Plaintifs, -againstCITY OF NEW YORK, POLICE OFFICER RYAN DOHERTY, Shield No. 20696, SERGEANT DEANE POWELL, Shield No. 5244, POLICE OFFICER HERNAN CONTRERAS, Shield No. 18917, POLICE OFFICER ROBERT MOLLOY, Shield No. 24779, POLICE OFFICER DERICK SINGH, Shield No. 27283, POLICE OFFICER JOHN SULLIVAN, Shield No. 18088, Individually nd in Their Oficial Capacities,: MEMORANDUM & ORDER 16-cv-6340 (ENV) (VMS) Deendants. ---- ·---------------------------------------------------------------X VITALIANO, D.J., At the center of the storm is a ailure of diligence on the part of plaintifs' counsel, who represents a contemptuous client, which prompted deendnts' motion or sanctions, pursuant to Rule 37(b) of the Federal Rules of Civil Procedure, and, altenatively, to dismiss or ailure to prosecute, pursuant to Rule 41(b). Des.' Mot. to Dismiss (ECF No. 25). Litigation commenced in November 2016, when plaintifs Vanessa Baez, Joaquin Lugo, and Cristina Montanez iled a complaint against the City of New York, Police Oficer Ryan Doherty, and ten "Jon Doe" police oicers, as authorized by 42 U.S.C. § 1983. Compl. (ECF No. 1). The claimed violations of constitutional rights are said to result rom plaintifs' arrest or selling alcohol to minors and their ensuing 18 hours in custody prior to release without prosecution. Id r 17. Pertinent on the motion is the act that, ater an unascribed eight-month delay in the proceedings, plaintif Baez ailed to appear or a noticed deposition. She then disobeyed a ollow up court order to appear or a rescheduled deposition. For the reasons set 1 Dockets.Justia.com orth below, deendnts' motion is granted to the extent that monetary sanctions shall be imposed. in equal shares against Baez and Dietrich Epperson, her counsel, but her claims shall not be dismissed. Background The motion presents a discovery dispute. For the most part, the substantive acts and issues raised in the lawsuit are not relevant to it. The litigation history is that plaintifs commenced this action on November 15, 2016. Compl. Over a yer later, on December 19, 2017, all counsel conerred by phone and agreed to conduct depositions during the week of Janury 22, 2018. Deel. of Hannah V. Faddis 19 (ECF No. 25-2) ("Faddis Deel."). On December 20, 2017, deense counsel mailed notices of deposition to plaintifs' counsel, id 111, but plaintifs; counsel avers that he never received them, due to a change of address, Deel. of Dietrich P. Epperson 12 (ECF No. 26-1) ("Epperson Deel."). At any rate, deense counsel ollowed up by email. Faddis Deel. 1 12. Nevertheless, on January 22, 2018, plaintifs' counsel gave notice that Baez was reusing to appear or deposition during the week of January 22, citing concens about her job, id 114. Baez's reusal to appear prompted a motion to compel Baez's appearance, Mot. (ECF No. 22), and the issuance by Magistrate Judge Scanlon of n order requiring her to appear or a deposition during the week of February 12, 2018, setting discovery to close on February 16, 2018, and indicating that no ther extensions of time would be granted. It was during this time period that Baez chose not to communicate with her lawyer, Epperson Deel. 1 6, and ailed to appear or her deposition, id 17. On February 21, 2018, ater discovery had been ordered closed by Judge Scanlon, Baez resumed communication with her counsel and advised that she was now willing to appear or a 2 deposition during the week of February 26. Id Plaintifs' counsel having not sought an order ·reopening discovery, deense counsel reused to schedule her deposition. Id; Defs.' Reply at 4 (ECF No. 27). On March 2, 2018, deendants moved or sanctions and to dismiss or lack of prose)ution. Discussion I. Sanctions Under Rule 37(b) To enorce the discovery rules, Rule 37(b) empowers district courts to impose sanctions or "ail[ure] to obey an order to provide or permit discovery," Fed. R. Civ. P. 37(b)(2)(A), including "dismissing the action or proceeding in whole or in prt," Fed. R. Civ. P. 37(b)(2)(A)(v). The district court "has wide discretion in imposing sanctions, incluling severe sanctions, under Rule 37(b)(2)(A), and will only be reversed if its decision constitutes an abuse of discre ion." Daval Steel Prods. v. IV Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991) (citations omitted). The Second Circuit has set orth our actors or district courts to consider in determining whether to impose dismissal as a sanction: "(1) the willulness of the non-compliant prty or the reason or noncompliance; (2) the eficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant prty has been waned of the consequences of . . . noncompliance." Agiwal v. fidIsland Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (alteration in original) (citation omitted). a. Reason or Noncompliance Making the dog ate my homework excuse blush, Baez's attoney alibied or his client's nonappearance that he did not receive the notice of deposition sent on December 20, 2017 because he had recently char ged offices and the notice was thus sent to the wrong address. 3 Epperson Deel. f 2. But, even if Baez's attoney never received the physical notices, the docket memorializes or all to see that he conferred by phone with deense counsel prior to the notice's mailing and agreed to complete depositions during the week ofJanuary 22, 2018. Mot. or Extension at 1 (ECF No. 22). Deense counsel was, of course, entitled to assume that this assent by Baez's counsel was upon notice and conirmation by his client of her availability. However, even ifsuch communication did not occur, "[t]he 'acts and omissions ofcounsel are normally wholly attributable to the client' and sanctions may be imposed against a party or her counsel's misconduct." Perez v. Siragusa, No. 05-cv-4873 (CPS), 2008 WL 2704402, at *4 (E.D.N.Y. July 3, 2008).(quoting Metro. Opera Ass'n v. Local 100, Hotel E1ps. & Rest. Emps. Int'! Union, No. 00 Civ. 3613 (LAP), 2004 WL 1943099, at *25 (S.D.N.Y. Aug. 27, 2004)). Thereore, to the extent that Baez was aware ofthe pending deposition schedule or her attoney ailed to inorm.her ofthat schedule, sanctions may be imposed. Unilaterally, ater her counsel had received unequivocal notice of the scheduling ofher deposition, Baez decided not to seek judicial reliefnd, instead, announced that she would not appear or her January deposition because "she had just started a new job [and] would lose her job ifshe missed work or the deposition." Epperson Deel. f 6. The Court is sympathetic to this predicament, but the advance notice documented in deendants' letter ofJanury 30, 2018 suggests that Baez could hav worked around her scheduling concens. Regardless, even if Baez's ailur to appear in fanuary was ound excusable, her repeat perormnce ailure to appear during the week ofFebruary 12, 2018, pursuant to a court order, is not. Reining the ocus, with Baez's exasperating New Year's noncompliance, Magistrate Judge Scanlon issued a rescheduling order, on January 31, 2018, directing Baez to appear or a deposition during the week ofFebmary 12, 2018, so that discovery could close, as she had 4 directed, by February 16, 2018. Baez once again ailed to appear. Seeking to lower. the bar or what might pass or a legitimate excuse, Baez's counsel ofers that "perhaps" Baez ailed to comply with Judge Scalon's order to "demonstrate her displeasure at the short notice [of the January deposition]." I. i 6. Obviously, mere "displeasure" with the Court or her counsel is more than an insuficient excuse or ignoring an explicit court order; Such conduct is · contemptuous. Thereore, the willulness of Baez's noncompliance counsels in avor of dismissal. b. Lesser Sanction The next actor to consider is the eicacy of a lesser sanction .. Certainly, Baez could be ordered, once more, to appear or a deposition. Some cause or optimism about the eficacy of such an order is provided by Baez's resumption of communication with her lawyer. In act, at one point, she expressed willingness to appear during the week of February 21, 2018. That concession was, however, at odds with Magistrate Judge Scailon's order of January 31, 2018, which•expressly wned that "[n]o urther extensions of time will be given." With that order 1mrelieved, notwithstanding Baez's supposed menability to deposition, the deposition did not take place. The question is should rescheduling of the deposition now be the response to her contemptuous conduct. The lesson is obvious: a mere rescheduling and the adoption of a new.discovery schedule Would underminejudicial c ntrol of the discovery process. Thereore, the Court must impose a more severe sanction than a simple repeat of its Jnury 31, 2018 order. Moreover, the Rules mandate the issuance of an order requiring "the disobedient party, the attorney advising that prty, or both to pay tle reasonable expenses, including attoney's ees, caused by the ailure" . . given that Baez's ailure to apper or deposition as ordered by the Court was not "substantially 5 justiied." Fed.R. Civ.P.37 (b)(2)(C). Other "lesser" sanctions would be hard to devise. For example, neither party has proposed speciic acts that could be designated as established or claimsthat could be precluded, see Fed.R.Civ.P.37(b)(2)(i)-(ii). Additionally, not that plaintif responded to it, deendants' argument takes the position that "[a]ny order of preclusion, or designation of acts as established ...would necessrily implicate Baez's claims in their entirety, which would be tantamount to dismissing her claims" altogether. Def.Br. at 6 (ECF No; 25.1). Thereore, practically speaking, the only viable "lesser sanction" is another order to apper or a deposition, but coupled with an award of costs, including attoney's ees incurred by deendants in connection with the previous attempts to schedule Baez's deposition and the costs of making this motion to secure compliance. Any documentation supporting the assessment of these costs m.ust attach related time records_ and any invoices to prove the costs claimed. Beyond that, as part of this sanctions order, Baez and her counsel re explicitly and stenly wned that ailure to comply with this discovery order setting a period within which she must sit or deposition will result in the dismissal of all of her claims in this action. c. Duration of Noncompliance Baez was on notice that her deposition was to be taken during the week of January 22, 2018. Rather than seek relief rom the agreement, she simply breached jt That caused deendants the expense of seeking a rescheduling order rom Judge Scanlon. The order directed Baez to appear or deposition the week of February 12, 2018. She reusecl. Then Baez deigned to resurace on February 21, 2018. Using these time marke s, the period ofpractical delay is approximately one month (mid-January to mid-February 2018). However, or purposes of a R le 3 7(b) motion, in calculating the period of delay the relevant delay is only that rom 6 February 16, 2018 - the last date on which Baez could appear or a deposition in compliance with the operative order- and February 21, 2018 - the date on which Baez expressed willingness to appear- because sanctions are only available or ailures to obey court orders,see Fed. R. Civ. P. 37(b)(2)(A); 8B Federal Practice & Procedure§ 2289. This delay ofless than one week is not particularly severe. Ifthe Court were to turn a blind eye to the overall context ofher contemptuous dealing with the Court and her counsel, this would weigh against dismissal or preclusion had such a claim or preclusion been perected. d. Notice The inal actor inquires whether Baez was 01 notice that her lawsuit might be dismissed account ofher noncompliance. Signiicantly, no order on the docket wned her ofthe 01 possibility ofdismissal. In assessing her culpability, however, notice is taken that deendants had previously moved or dismissal "pursuant to Rule 41(b) or ailure to prosecute, and failure to comply with the Court's September 14th Order." Mot. or Extension (ECF No. 2i). Moreover, Baez is nd was represented by counsel, who presumably complied with his obligation to communicate that order to her. Arguably, these acts provide constructive notice . ' but do not, in and ofthemselves, establish actual notice. Such constructive notice would seem insuicient to support dismissal. The Second Circuit has held that a waning rom the court that dismissal is J. possible sanction is required when a litigant proceeds prose. Agiwal, 555 F.3d at 302 (quoting Valentine v. Museum of11odern Art, 29 F.3d 47, 50 (2d Cir. 1994)). It is not a ar stretc4 to conclude, especially where the litigant is untrained in the law, that its reasoning should apply with respect to represented parti s as well. Indeed, ourts in this district have chosen to provide explicit notice to represented parties prior to dismissing an action, particularly when no sanction was previously imposed. See, e.g., hite v. Ciy ofNew York, No. 08-cv-2238 (KAM) 7 (MDG), 2009 WL 3233121, at *2 (E.D.N.Y. Oct. 2, 2009). This actor, too, weighs against dismissal as a sanction. As a consequence, considering the totality of the circumstances, the Court concludes that sanctioris are warranted but that the draconian snction of dismissal is not. A righting of the, discovery ship is the main objective of this sanctions order. To do that, it must, irst, order that Baez appear or a deposition to be completed beore June 28, 2019. She is expr ssly wned that, if she ails to appear and complete her deposition as directed by this Order, her claims will be dismissed. Second, Baez and her counsel are ordered to pay all costs associated with Baez's ailure to appear for a deposition during the period rom January 22 to February 16, 2018 and of the making of this motion, including attoney's fees. In urtherance of this sanctions order, plaintifs'counsel is directed to explain her obligations under this order to Baez, who vill be expected to maintain active communication with her lawyer. Dismissal Unded: ule 4(b) II. · Under Rule 4 i (b), courts have power "to dismiss a complaint or ailure to comply with a courtorder, treating noncomplince as a ailure to prosecute." Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995). "Courts have repeatedly ound that ' [dismissal of an action is wrranted when a litigant, whether represented or instead proceeding pro se; ails to comply with legitimate court directives."' Robinsonv. Sposato, No. i3-cv-3334 (.TFB) (WDW), 2014 WL 1699001, at *1 (E.D.N.Y. Apr. 24, 2014) (alteration in original) (quoting Yulle v. Barkley, No. 9:05-cv-0802 (LEK/D:EP), 2007 WL 2156644, t *2 (N.D.N.Y. July 25, 2007)). In evaluating a motion to ' . .. . . dismiss or ailure to prosecute, a district court must consider "1) the dunition of plaintif's ailures or non-compliance; 2) whether plaintif had notice that such conduct would result in dismissal; 3) whether prejudice to the deendant is likely to result"; 4) the balai ce of the court's 8 "interest in managing its docket against plaintiffs interest in receiving an opportunity to_be heard;" and 5) ''the eicacy of a sanction less draconian thn dismissal." Ba.av. Donaldson, ·. Lukin & Jenrette Sec. Corp,, 222 F.3d 52, 63 (2d Cir. 2000). It is also well-settled that no one factor is dispositive. Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009). The considerations relevant to the Rule 37(b) motion re similar to those relevnt to the Rule 41 (b) motion. The only additional actors or purposes of Rule 41 (b) are prejudice to the deendant and the court's interest in managing its docket. Deendants have not explained what prejudice woald result rom allowing plaintif one last chance to appear ·or a deposition. Moreover, because dismissing Baez's claims would not terminate this case or substantially less n it burden on the Court, given that the other plaintifs' claims are identical to.Baez's, judicial economy does not require dismissaf Thereore, because the Court has declined to . . dismiss this action, pursuant to Rule 37(b)(2)(A)(v), it declines to do so, pursunt to Rule 41(b), as well. Conclusion . . . In line with the oregoing, deendant's motion or snctions is granted to th. extent that Baez is ordered to apper or and complete her deposition beore June 28, 20 i 9. She is expressly wned: that ailure to comply with this order to appear or deposition will res·Jlt in the dismissal of her lawsuit. She and her counsel are also directed to pay as san?tions ali costs incurred by defe dapts in relation ic her ailure to appear or deposition in the period rom Janury 22 to Febru1r_y 16, 2018 and of the making of this sanctions motion, including deendants' attoney's ees. The total costs shall be paid to deendants in equal shares by Baez and Epperson, although enorcement of this monetary sanction is stayed until the conclusion of the case. Deendants are 9 directed to submit their demand or costs, including any associated time records an/or invoices, · or assessment by Magistrte Judge Scanlon. Deendmts' motion seeking dismissal or ailure to prosecute is denied. So Ordered.· Dated: Brooklyn, NewYork May 18, 2019 /s/ Hon. Eric N. Vitaliano ERIC N. VITALIANO United States District Judge 10
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