Raphael v. DCF et al
ORDER denying 37 Motion to Dismiss. Signed by Judge Vanessa L. Bryant on 9/22/2016. (Hoffman, S)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STATE OF CONNECTICUT DEPARTMENT
OF CHILDREN AND FAMILIES,
CIVIL ACTION NO.
September 22, 2016
MEMORANDUM OF DECISION DENYING
DEFENDANT’S MOTION TO DISMISS [DKT. NO. 37]
The Plaintiff, Ruel Rafael, brought this action alleging employment
discrimination on the basis of race under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e, et seq. Currently pending before the Court is Defendant’s
Motion to Dismiss, which Defendant brought pursuant to Federal Rules of Civil
Procedure 37(b)(2) and 41(b). For the reasons that follow, Defendant’s Motion to
Dismiss is DENIED.
In its December 1, 2015 motion, Defendant stated that it served
interrogatories and requests for production on Plaintiff in September 2015, and
that despite repeated attempts to contact him, Defendant had received no
response. [Dkt. No. 37, Def. Mot. to Dismiss, at 2.] Defendant also argued that
Plaintiff was aware his discovery responses were overdue, because he filed a
motion seeking an extension of time to serve responses. [Dkt. 37 No., Def. Mot.
to Dismiss, at 2-3 (citing Dkt. No. 33, Pl. Mot. for Extension of Time).] As of
December 2, 2015, Defendant claimed it had not received the outstanding
discovery, including responses to interrogatories and requests for production, a
damages analysis, or expert designations. [Dkt. No. 37, Def. Mot. to Dismiss, at
In his response to Defendant’s Motion to Dismiss, Plaintiff stated that “all
Interrogatories and Request[s] for Production [were] sent certified mail to the
attention of Carletha Texidor on December 4, 2015.” [Dkt. No. 38, Pl. Response to
Mot. to Dismiss.] Plaintiff also pointed out that he had previously produced
documents to the Defendant in May and July 2015.1 Id.
Defendant filed a reply in which it acknowledged receiving a package from
Plaintiff, which included “several documents and a compact disc (CD).” [Dkt. No.
39, Def. Reply, at 3]. Defendant argued that these materials were “insufficient and
incomplete” in that Plaintiff failed to provide (1) a written response to Defendant’s
interrogatory requests; (2) responses to several requests for production, and (3)
“a signed authorization for the release of his employment records from his
current employer.” Id.
Pursuant to Federal Rules of Civil Procedure 33(b)(2) and 34(b)(2)(A), a
party responding to interrogatories and requests for production must serve its
Plaintiff also filed a sur-reply attaching a certified mail receipt dated December 4,
2016. [Dkt. No. 40.]
responses and any objections within “30 days after being served.” To the extent
an interrogatory is not objected to, it must “be answered separately and fully in
writing under oath.” Fed. R. Civ. P. 33(b)(3). If a party objects to an interrogatory,
this objection must be “stated with specificity” for each objected-to interrogatory.
Fed. R. Civ. P. 33(b)(4). Similarly, when responding to requests for production, a
party is required to (1) respond in writing to each request (either that it will
produce copies or permit inspection of a requested document), or (2) “state with
specificity the grounds for objecting to the request.” Fed. R. Civ. P. 33(b)(2)(B).
While Plaintiff has offered evidence that he sent something to the Defendant on
December 4, 2015, [see Dkt. No. 40, Plaintiff’s Sur-Reply], he has offered no
evidence to rebut Defendant’s assertion that he provided: (1) no written
interrogatory responses; and (2) no responses to ten requests for production.
Federal Rule of Civil Procedure 37(b) grants the Court discretion to impose
sanctions on a party for failing “to obey an order to provide or permit discovery.”
As an initial matter, the Court notes that Defendant failed to seek such an order
prior to seeking the sanction of dismissal. Consequently, no “order to provide or
permit discovery” exists in this case. Granting Defendant’s motion pursuant to
Rule 37(b) would therefore be inappropriate. See Salahuddin v. Harris, 782 F.2d
1127, 1131 (2d Cir. 1986) (“The plain language of Rule 37(b) requires that a court
order be in effect before sanctions are imposed and we have clearly held that
dismissal under this subdivision is improper in the absence of an order.”
Rule 41(b) permits dismissal “if the plaintiff fails to prosecute or to comply
with [the Federal Rules] or a court order.” The Court has broad discretion to
determine whether dismissal is an appropriate sanction. See Dodson v. Runyon,
86 F.3d 37, 39 (2d Cir. 1996) (“The selection of the appropriate sanction, including
dismissal . . . is a matter consigned to the discretion of the district court.”).
Although Plaintiff’s responses to Defendant's discovery requests appear to have
been inadequate, “dismissal is ‘a harsh remedy to be utilized only in extreme
situations,’” Colon v. Mack, 56 F.3d 5, 7 (2d Cir. 1995) (quoting Harding v. Fed.
Reserve Bank of N.Y., 707 F.2d 46, 50 (2d Cir. 1983)). “District courts should be
especially hesitant to dismiss for procedural deficiencies where, as here, the
failure is by a pro se litigant.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
Factors relevant to the question of whether dismissal is an appropriate
remedy include: (1) “the duration of the plaintiff’s failures”; (2) “whether the
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 judge has taken 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.” Dodson, 86 F.3d at 40. None of these factors is
dispositive, id., and most counsel against dismissal in this case. For example,
while Defendant appears to have contacted Plaintiff numerous times stating that
his discovery responses were insufficient, Defendant sought no assistance from
the Court prior to filing this motion. Plaintiff therefore lacked any formal notice
from the Court that his failure to adequately respond to discovery requests could
result in dismissal. Further, because Defendant now seeks no remedy other than
dismissal, it has not given the Court occasion to determine whether lesser
sanctions would be efficacious. Dismissal at this stage would also be in tension
with the Court’s strong interest in resolving disputes on the merits. See Pecarsky
v. Galaxiworld.com Ltd., 249 F.3d 167, 172 (2d Cir. 2001) (citing Am. Alliance Ins.
Co. v. Eagle Ins. Co., 92 F. 3d 57, 61 (2d Cir. 1996)) (“This Court has held that
strong public policy favors resolving disputes on the merits.” (quotations
In order to assure that the Plaintiff has had a fair opportunity to
comprehend and comply with his duties to prosecute this case, the Court hereby
refers the discovery dispute to Magistrate Judge Richardson for the purpose of
conducting a discovery conference to resolve the discovery disputes. Defense
counsel is asked to contact Judge Richardson's chambers via telephone
conference with the Plaintiff on the telephone line within fourteen (14) days of the
date of this order to schedule a date for the conference. Plaintiff is hereby
ordered to cooperate with counsel for the Defendant to arrange the conference
call and schedule the discovery conference at the earliest possible date. Both
parties will need to have their calendars at the time of the conference call.
Although the Court declines to dismiss this case, it is cognizant, and the
Plaintiff is hereby notified, that an inability to obtain discovery may limit the facts
and arguments available to Defendant on summary judgment. As the Court
reviews Defendant’s Motion for Summary Judgment [Dkt. No. 43], it will take this
into consideration, and may in its discretion draw factual inferences against
Plaintiff or exclude facts that were not produced during discovery. See
Chambers v. NASCO, Inc., 501 U.S. 32, 43 n.8 (1991) (“The court generally may act
sua sponte in imposing sanctions under the Rules.”)
For the foregoing reasons, Defendant’s Motion to Dismiss is DENIED.
IT IS SO ORDERED
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 22, 2016
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