Kraus v. Beiersdorf, Inc. et al

Filing 119

Ruling and ORDER granting in part and denying in part 95 Motion to Dismiss; denying 98 Motion for Sanctions; denying 105 Motion for Sanctions; granting 114 Motion for Clarification. Signed by Judge Mark R. Kravitz on 7/14/2011. (Falcone, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DEBRA LEE KRAUS,

:
:
Plaintiff,
:
:
v.
:
:
BEIERSDORF, INC. aka BEIERSDORF :
NORTH AMERICA, INC. et al.,
:
:
Defendant.
:

No. 3:09cv01697 (MRK)

RULING AND ORDER
Currently pending before the Court are Defendant Beiersdorf, Inc.'s ("Beiersdorf")
Motion to Dismiss [doc. # 95], Beiersdorf's Motion for Sanctions [doc. # 98], Beiersdorf's
Request for Sanctions [doc. # 105], and Beiersdorf's Motion for Clarification [doc. # 114].
Plaintiff Debra Lee Kraus filed this pro se action on October 22, 2009 alleging
discrimination and harassment based on sex, national origin, and pregnancy in terms and
conditions of employment; hostile work environment; and wrongful termination for opposition to
unlawful practices in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621634; and Connecticut General Statutes §§ 46a-60(a)(1), 46a-60(a)(4), 31-51pp, and 31-75. See
Compl. [doc. # 1] at 1-2. On December 23, 2009, Ms. Kraus amended her complaint to include
allegations of discrimination and harassment based on physical disability, age, gender, and
marital status, as well as unlawful retaliation. See Am. Compl. [doc. # 5] at 3. She also alleged
violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Id. On April 14,
2010, Ms. Kraus again amended her complaint, this time to include violations of the Employee

1

Retirement Income Security Act, 29 U.S.C. §§ 1001-1461. See Second Am. Compl. [doc. # 8] at
3. On July 19, 2010, Ms. Kraus amended her complaint to limit defendants to Beiersdorf, to
remove some of the aforementioned allegations, and to note that she had received three notices
of right to sue Beiersdorf from the Equal Employment Opportunity Commission. Third Am.
Compl. [doc. # 15]. Although Ms. Kraus has been represented by three attorneys at different
times during the course of this suit, she is currently proceeding as a pro se plaintiff. The Court
granted counsels' requests to withdraw from the case on October 14, 2010, Order [doc. # 37], and
June 21, 2011, Order [doc. # 111].
Ms. Kraus has repeatedly failed to comply with discovery requirements. These failures
include her delay in producing information regarding the identity of her treating physician, her
medical records, her use of prescription medications, her relationship with Christopher Arpie and
his role in this litigation, her use of computers and e-mail, and her ability to be deposed or testify
in this case. See Def.'s Mem. in Support of Mot. to Dismiss [doc. # 96] at 2-6. Ms. Kraus also has
disregarded this Court's April 26, 2011 Order [doc. # 72] to produce to Beiersdorf by April 28,
2011 a signed authorization to obtain her Social Security Disability application and associated
documentation. See id. at 6; see also Order [doc. # 83]. Furthermore, Ms. Kraus's physician, Dr.
Ali Hasmi, provided a letter to Ms. Kraus stating that she would be unable to be deposed due to
risks to her health, but Ms. Kraus or her counsel concealed this letter from Beiersdorf while it
was attempting to schedule Ms. Kraus's deposition. Def.'s Mem. in Support of Mot. to Dismiss
[doc. # 96] at 5. After Beiersdorf questioned Ms. Kraus's ability to proceed with this case, on
May 3, 2011, this Court ordered Ms. Kraus's counsel to file a notice no later than June 15, 2011
informing the Court whether Ms. Kraus would ever be physically capable of being deposed or
testifying in this case. Order [doc. # 83]. Ms. Kraus has not responded to that Order.

2

All told, this Court has held eight discovery-related telephonic status conferences in this
case. In the most recent June 21, 2011 conference, Ms. Kraus expressed an interest in Attorney
Bochanis and Attorney Weihing being allowed to withdraw so that she could seek new counsel
and left the telephone conference abruptly thereafter. Ms. Kraus has not taken any action in this
case since that conference.
On June 21, 2011, this Court issued an Order [doc. # 111] providing that, among other
things, Beiersdorf's Motion to Dismiss [doc. # 95], Beiersdorf's Motion for Sanctions [doc. # 98],
and Beiersdorf's Request for Sanctions [doc. # 105] would be discussed at a subsequent hearing
originally scheduled for July 12, 2011. Order [doc. # 111]. The Court warned Ms. Kraus that,
because she had not complied with discovery requests, the case would be dismissed without
prejudice and without fees or costs. Id. The Court also noted that Ms. Kraus could appear at the
hearing to contest the Order. Id. Ms. Kraus failed to appear at the rescheduled July 11, 2011
hearing.
Rule 41(b) of the Federal Rules of Civil Procedure allows a district court to "dismiss a
complaint for failure to comply with a court order, treating the noncompliance as a failure to
prosecute." Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995); see Fed. R. Civ. P. 41(b). There
are detailed factors to consider before dismissing a case for failure to comply with a court order,
and where there is a pro se litigant, courts should conduct this analysis leniently. See Shabtai v.
Levande, 38 Fed. App'x 684, 687 (2d Cir. 2002) (summary order). A district court must consider:

(1) the duration of the plaintiff's failures, (2) whether plaintiff had received notice
that further delays would result in dismissal, (3) whether the defendant is likely to
be prejudiced by further delay, (4) whether the district court judge has take[n]
care to strike the balance between alleviating court calendar congestion and
protecting a party's right to due process and a fair chance to be heard, and (5)
whether the judge has adequately assessed the efficacy of lesser sanctions.
3

Nita v. Conn. Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994) (quotation marks omitted).
"No one factor is dispositive," and the "record as a whole" should be evaluated. United States ex
rel. Drake v. Norden Sys., 375 F.3d 248, 254 (2d Cir. 2004).
Examining the factors in the context of this case, the Court finds that dismissal is
appropriate. After over twenty months of litigation, Ms. Kraus has not yet been deposed and has
repeatedly failed to comply with discovery requests and Court orders. Even after Ms. Kraus was
notified that her delays would result in dismissal, see Order [doc. # 111], Ms. Kraus took no
action and did not appear for the Court’s hearing. The first two factors thus weigh in favor of
dismissal.
As to the third factor, the Second Circuit has held that the question of prejudice "turns on
the degree to which the delay was lengthy and inexcusable." Drake, 375 F.3d at 256. Insofar as
Beiersdorf has been repeatedly stymied in its attempts to take discovery, the Court concludes that
Beiersdorf will be further prejudiced by continued delay and noncompliance. Furthermore, as
Beiersdorf noted, the Court has been involved in discovery in this case more often than in any
other case in recent memory. Def.'s Mem. in Support of Mot. to Dismiss [doc. # 96] at 2. The
Court believes that Ms. Kraus has been given a fair chance to be heard and that lesser sanctions
will not be effective. Even a lenient application of the five Nita factors favors dismissal. See
Nita, 16 F.3d at 485.
However, Ms. Kraus indicated before she abruptly ended the telephonic conference with
the Court that she wanted to find a new lawyer. Therefore, this Court will dismiss Ms. Kraus’s
lawsuit without prejudice to re-filing by a date certain. This Court holds that this case is
DISMISSED without prejudice and without fees or costs for failure to prosecute. The Clerk is

4

directed to close the file. This case is subject to being re-filed by September 22, 2011. This will
give Ms. Kraus over four months from the date her most recent attorneys filed a motion to
withdraw to locate new counsel. See Mot. to Withdraw [doc. # 86]. If the case is not re-filed by
that date, Beiersdorf may move to have the case dismissed with prejudice.
Beiersdorf's Motion to Dismiss [doc. # 95] is GRANTED IN PART and DENIED IN
PART. As this Court disfavors imposing sanctions against pro se litigants, Beiersdorf's Motion
for Sanctions [doc. # 98] and Request for Sanctions [doc. # 105] are DENIED. Finally, as this
Court has clarified its June 21, 2011 Order [doc. # 111] both in the hearing and in this opinion,
Beiersdorf's Motion for Clarification [doc. # 114] is GRANTED.

IT IS SO ORDERED.

/s/

Dated at New Haven, Connecticut: July 14, 2011.

5

Mark R. Kravitz
United States District Judge