Davis v. Citibank, N.A., No. 1:2012cv01678 - Document 28 (S.D.N.Y. 2013)
Court Description: OPINION: re: 22 MOTION to Dismiss the action with prejudice and/or striking the complaint filed by Citibank, N.A. For the foregoing reasons, the Defendant's motion is denied in part and granted in part. (Signed by Judge Robert W. Sweet on 3/7/2013) (cd)
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UNITED STATES DISTRI COURT SOUTHERN DISTRICT OF NEW YORK EDWARD F. DAVIS, iff, PI 12 Civ. 1678 against OPINION CITIBANK, N.A. , Defendant. ---- --------- --------- --------- A P PEA RAN C E S: Attorneys the Defendant ZEICHNER ELLMAN & KRAUSE LLP 575 Lexington Avenue New York, NY 10022 By: Barry J. Glickman, Esq. Greg M. Bernhard, Esq. Pro Se EDWARD F. DAVIS X Sweet, D.J. Defendant Citibank, N.A. ("Citibank" or the "Defendant") has moved pursuant to Rule 37 of the Federal Rules of Civil Procedure to strike and/ or dismiss the complaint of pro se plaintiff Edward F. Davis ("Davis" or the "Plaintiff"). Alternatively, Citibank seeks an order from the Court to direct Plaintiff to appear for deposition on a date certain. Upon the facts and conclusions set forth below, the motion is denied in part and granted in part. Prior Proceedings & Facts The following facts are drawn from the allegations in the complaint and submissions by the parties, and do not constitute findings by the Court. In April 2009, Citibank used a Sears branded credit card account to the Plaintiff (the "Account"). In October 2010, Plaintiff failed to make the minimum monthly payments due on the Account. 1 As a re September 26 1 t of the Plaintiff/s payment defaults l on 2011, Citibank commenced an action, seeking to recover a sum in excess of $6,664.09, which was due in connection with Account. See Citibank l N.A. v. Edward F. Davis, No. CV-11-1015, City Court of the City of Newburgh (the "City Court Action") . On December 30, 2011, Plaintiff served an answer to the City Court Action. On October 211 2011, instead of asserting a counterclaim in the City Court Action l Plaintiff commenced an action in New York County, in which he alleged "multiple vi ations of consumer credit act and overcharges." Edward F. s v. Citibank, N.A., No. 3362 NSC 2011, Civil Court, New York County (the "Small On February 13, 2012, action in New York County. aims Action") . iff commenced another Edward F. Davis v. Citibank, N.A., No. 101622/12, Supreme Court, New York County (the "State Court Action lf ). In the State Court Action complaint, PIa ., unconscionable. alleged that Citibank used and sing, threatening and otherwise abusive conduct" to collect a debt (State Court Action Compl. addition iff l ~~ 8, 9). In Plaintiff alleges violations of "consumer credit 2 protection laws" Id. ~ 3). On March 7, 2012, Citibank removed the State Court Action to this Court. At the time Plaintiff commenced the State Court Action he represented to Citibank that he would execute a stipulation of discontinuance of the Small Claim Action. the court in the Small Claims Action of Plaintiff advised s intention to do so, order for his claims could be resolved in one action and in one forum. Accordingly, counsel for Citibank in the City Court Action sent Plaintiff stipulations of discontinuance for both the Small Claims Action and the City Court Action. By a notice of motion dated March 21, 2012, Plaintiff sought leave to amend the complaint in the ant action to assert claims against Citibank of harassment and unfair debt lection practices. Court regarding its de On March 28, 2012, Citibank wrote to the re to assert its claim from the City Court Action against Plaintiff in a count aim once the City Court Action, Small Claims Action and State Court Action were each dismissed and requested a conference with the Court to address Citibank's counterclaim and Plaintiff's motion to amend the complaint. 3 On April 3, 2012, Plaintiff was granted leave to file an amended complaint (the "AC") to include Citibank was 1 relevant claims. so granted leave to file an answer to the AC and assert a counterclaim in that pleading. multiple pending lawsuits dismiss the Small t In consideration of the the Court advised Plaintiff to aims Action and suggested that Citibank should secure an order dismissing the City Court Action in order to facilitate one court as the exclusive forum in which the parties I disputes would be resolved. Plaintiff and Citibank again appeared before this Court on October 24 t 2012 for a status conference t at which time the Court established an expedited timetable for the completion of discovery and suggested that depositions Plaintiff and one representative from Citibank should be sufficient. aintiff raised no objection to the court ordered deposition. Plaintiff filed the AC that day. See Bernhard Decl. Ex. A) . On October 25, 2012 Citibank served an answer to the AC with affirmative defenses and counterclaims and served a deposition notice on the aintiff. See id. Exs. B-C). On November 6 t 2012 Plaintiff served a "Reply 4 Affirmation opposition to Defendant's and Motion for Protective Order" t for Deposition (the "Motion") by which he contended that, because he is pro set he should not be required to submit to a deposition. protective order (See id. Ex. D). Motion sought a Plaintiff contended that he was unable to "obtain an attorney to attend the deposition[,]" that a "a deposition by oral examination considering that plaintiff is pro se would be wrong[,]" and that the deposition "would be more (rd. ) burden than the plaintiff can handle." According to Citibank, on November 8, 2012, appeared at a hearing of the Small CIa Action and "explic ly advised would not submit to a deposition unless directed to do so by Court." (rd. Ex. E). By an order dated November 15, 2012, this Court denied the Motion, and directed Plaintiff to appear for a deposition on November 29, 2012 Order nonprivi ructed Plaintiff to testi The November 15 about "any matter that is relevant to claims and/or defenses in this matter." and paid (the "November 15 Order"). (See id. Ex. E). fees for a court Plaintiff's deposition. tibank's counsel schedul in preparation for the Plaintiff, however, failed to appear for his deposition on November 29, 2012. 5 aintiff sent a "Memorandum and On November 28, 2012, Note of Issue" (the "November 28 Submission"), in which he acknowledged receipt of the November 15 Order but reiterated his objection to the deposition. (See id. Ex. F). Submission stated that "nothing is The November 28 ir about letting the their own office[,]" and that the defendant interrogate me deposition "would be more trauma than I can handle and open the door for further abuse of power. " Id. Defendants now move to strike the AC and/or have the action dismissed aintiff's its entirety with prejudice based on lure to appear for his deposition and allegedly willful disobedience of the November 15 Order. The motion was filed on January 18, 2013 and marked fully submitted on February 15, 2013. The Standard for Sanctions It is well settled that a dist ct court has "inherent power to regulate litigation, preserve and protect the integrity of the proceedings before it, and sanction parties for abusive practices." 68, 72 Turner v. Hudson (S.D.N.Y. 1991). it Lines Inc., 142 F.R.D. Sanctions for failure to comply with a 6 court order is governed by Rule 37(b) (1) of the Federal Rules Civil Procedure, which states that when a court "orders a deponent to be sworn or to answer a question and the deponent ls to obey, the failure may be treated as contempt of court." . R. Civ. P. 37(b) (1). motion, R. Sanctions are also available, upon a party's failure to attend his own deposition. 37 (d) (1) (A) (i) . P. A wide spectrum of sanctions is provided for by Rule 37. appropriateness of a given sanction is not guided by ined rule or doctrine but should be just, and any c should serve guidelines outlined by the Second Circuit in Inc. v. Modiin Publi Ltd., 843 F.2d 67 ~--------~~--------------------------~~------ Cir. 1988). sanctions: (2d outlined three purposes of Rule 37 (1) they insure that a party will not benefit from failure to comp with discovery requests, (2) they are specific deterrents in a case to a particular party, and (3) they have "a general deterrent ef litigation . " on the case at hand and on other Id. at 71. Similarly, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a court may dismiss an action "[i]f the plaintiff fails to prosecute or comply with . the court." Fed. R. Civ. P. 41(b) 7 any order of The Second Circuit has cautioned that dismissal under Rule 41(b) is appropriate only in extreme "is a harsh remedy and tuations." F.3d 532, 535 (2d Cir. 1996). Lucas v. Miles, 84 following factors are to be considered by the district court prior to dismissing a case for failure to comply with a court order: (1) the duration of the plaintiff's failure to comply with court order, (2) whether plaintiff was on notice that failure to comply would result in dismis (3) whether defendants are likely to be prejudiced by further lay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a r chance to be heard t and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Lucas, 84 F.3d at 535. The level of intentionality goes rectly to the degree of severity of any sanction that may be warranted. Dismissal requires a showing of "willfulness, bad faith, or any fault" on the part of the sanctioned party. See Jones v. NFTA, 836 F.2d 731, 734 (2d Cir. 1987) c ion omitted). predicated on a f (int quotation marks and An adverse inference sanction may so be of intentional misconduct, or fault in the form of gross negligence. See Reil v. Natwest Markets ------~~~----------~----~~~ ____~_I_n_c _ 181 F.3d 253, 267-68 (2d Cir.1999). In determining _ ., degree of severity of the sanction warranted by 8 particular level of intentionalitYI the best approach is a "case-by-case" one. rd. at 267. LastlYI a court must be cognizant of the special latitude that pro se litigants may be awarded. See e.g' l Lucas l 84 F.3d at 535 (explaining that district courts should "dismiss a pro se litigant/s complaint only when circumstances are sufficiently extreme.") i Webb v. Bermudez 1 No. 92 Civ. 7305 1 1996 WL 599673 1 at *1 (S.D.N.Y. Oct. 171 1996) (stating that "dismissal against pro se litigants should be granted only when they deliberately frustrate the process through a misunderstanding. II ). l However 1 not when they do so '''[a]ll litigants l including pro ses, have an obligation to comply with court orders 1 1 and failure to comply may result in sanctions including dismissal wi Mortg. Corp. 1 prejudice. 555 F.3d 298 1 302 II Agiwal v. Mid Island (2d Cir. 2009) v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990)). of a pro se I l (citing Minotti Thus 1 "dismissal igant's action may be appropriate 'so long as a warning has been given that non-compliance can result in dismissal.'11 rd. F.3d 47, 50 (citing Valentine v. Museum (2d Cir. 1994)). The Deposition Will Be Rescheduled 9 Modern Art, 29 In consideration of PI upon review iff's se status, and ~----- the record, the extreme sanction dismis of this action is not appropriate at this time. Defendant, however, has submitted sufficient evidence that aintiff exhibits an apparent unwillingness to participate ly in discovery process. The November 15 Order denied Plaintiff's motion for a protective and provided adequate notice with regard to Plaintiff's deposition, including the date which he was to appear. re Plaintiff knowingly and willfully to participate in his deposition, despite the November 15 Order. Indeed, aintiff repeated his refusal in his November 28 Submission to the Court. Accordingly, Plaintiff's deposition shall held on a date mutually agreeable to the parties on or before 20 days of this Order. Plaintiff is directed to appear for his deposition and cooperate fully in answering questions regarding any nonprivileged matters relevant to the claims or defenses in this action. Any failure by the Plaintiff to cooperate with scheduling the deposition, to appear for the deposition or to follow the terms of this Order, may result in dismissal the case with prejudice and/or sanctions in the form of reasonable costs that the Defendant will incur in scheduling the 10 deposition, including but not limited to court reporter fees and attorneys/ fees. Conclusion For the foregoing reasons / the Defendant / s denied in part and granted in part. It is so ordered. New York, NY March, ,(, 2013 U.S.D.J. 11 motion is
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