Isigi v. Harry's Nurses Registry et al

Filing 56

MEMORANDUM and ORDER ADOPTING REPORT AND RECOMMENDATION: Magistrate Judge Golds Report and recommendation 50 is adopted except for one procedural nuance. Fed. R. Civ. P. 37 allows the Court to directly impose a default judgment, not just a default. Fed. R. Civ. P. 37(b)(2)(A)(vi). Therefore, Defendants answer is stricken, and a default judgment is entered against them. The matter is referred back to the magistrate judge for consideration of damages and any other appropriate remedies. Ordered by Judge Frederic Block on 10/4/2017. (Innelli, Michael) Modified on 10/4/2017 (Innelli, Michael).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROSELYN ISIGI,
Plaintiff,
-against-

MEMORANDUM AND ORDER
1:16-cv-2218(FB)(SMG)

HARRY’S NURSES REGISTRY, INC.,
and HARRY DORVILIER
Defendants.
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Appearances:
For the Plaintiff
JONATHAN A. BERNSTEIN
Levy Davis & Mahler LLP
39 Broadway, Suite 1620
New York, NY 10006

For the Defendant
ROBERT SCHIRTZER, ESQ.
Law Office of
Robert Schirtzer, Esq., P.C.
104-18 Metropolitan Avenue
Forest Hills, NY 11375

BLOCK, Senior District Judge:
On September 7, 2017, Magistrate Judge Steven M. Gold issued a Report and
Recommendation (“R&R”) recommending the Court enter default against Defendants
Harry’s Nurses Registry, Inc. and Harry Dorvilier (“Defendants”) in this action for
unpaid overtime wages under the Fair Labor Standards Act because of Defendants’
repeated failures to meet court deadlines and participate in discovery. The R&R
instructed that “[a]ny objections to the recommendations contained in this Report must
be filed with the Clerk of the Court within fourteen days of the date of this Report and in
any event no later than September 21, 2017.” Defendants objected within the allowed

time period. Therefore, the Court reviews the R&R de novo. 28 U.S.C. § 636(b)(1);
United States v. Tortora, 30 F.3d 334, 337 (2d Cir. 1994).
I
Fed. R. Civ. P. 37(d)(1)(A) empowers the court to order sanctions against a party
or a party’s officer, director, or managing agent if that person fails, after being served
with proper notice, to appear for his deposition. Fed. R. Civ. P. 37(d)(1)(A). Fed. R.
Civ. P. 37(d)(3) allows any of the sanctions listed in Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi)
to be imposed. One such sanction is a default judgment against the disobedient party.
Fed. R. Civ. P. 37(b)(2)(A)(vi).
“Although entry of a default judgment is an extreme measure, discovery orders
are meant to be followed. ‘A party who flouts such orders does so at his peril.’
Defendants rolled the dice on the district court’s tolerance for deliberate obstruction,
and they lost.” Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 853 (2d Cir. 1995)
(citation omitted) (quoting Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 73 (2d
Cir. 1988)). The sanction of default judgment is appropriate “when a court finds
willfulness, bad faith, or any fault on the part of the noncompliant party.” Guggenheim
Capital, LLC v. Birnbaum, 722 F.3d 444, 451 (2d Cir. 2013). The efficacy of lesser
sanctions, duration of noncompliance, and existence of fair warning to the
noncomplying party are other factors to consider when imposing a default judgment as a

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Rule 37 sanction. Id.
Since the beginning of litigation, Defendants have failed to participate in good
faith. Defendants’ repeated failures to participate in discovery or attend hearings have
led this court to enter default once before, on October 10, 2016. Plaintiff withdrew her
motion for default judgment on June 7, 2017 and gave Defendants one more chance to
participate meaningfully in the case. Two weeks later, on June 19, 2017, Defendants’
counsel failed to appear at a scheduled status conference.
The magistrate judge ordered Defendant Harry Dorvilier (“Dorvilier”) to
personally appear at a second status conference on June 26, 2017, at which the
magistrate judge told him, “any future failures to meet court-imposed deadlines, given
the history of this case, will result in a recommendation that he be held in default. Mr.
Dorvilier, do you understand me?” Pl’s Br. Ex. A 3:18-4:2. Dorvilier responded, “Your
Honor, I understand.” Id. 4:3.
Dorvilier then failed to appear at three consecutive deposition dates, twice
claiming health issues and the third time giving no explanation at all. At a status
conference on September 7, 2017, the magistrate judge instructed defense counsel to
inform his client that default would be entered against him unless he agreed to appear
for deposition the following day. Defense counsel informed the magistrate judge that his
client would not agree to attend the deposition, and the magistrate judge filed his R&R

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the same day.1
Defendants filed a letter objection to the R&R, arguing that Dorvilier had good
reasons for missing the four deposition dates—twice because of health problems and
twice because of work obligations. Defendants’ position has no merit. Dorvilier
personally agreed to the third deposition date after missing the first two. He still failed
to appear without explanation until he had to justify himself after the fact. Nor is his
eventual excuse—work obligations—a valid reason to miss a scheduled deposition,
especially on a pre-agreed date. Dorvilier’s excuses are insufficient to justify his
continued abuse of the discovery process.
His excuses are also directly contradicted by his own words. Right before filing
his formal letter motion, Dorvilier filed a pro se letter with the Court arguing that he
should not have to obey its orders because he was unable to obtain Letters of
Satisfaction of Judgment related to a different matter, docketed at 1:07-cv4672(NGG)(MDG), and categorically refusing to attend any deposition until that matter
is resolved. This is nothing short of willful defiance of the Court’s authority and will not
be tolerated.
Dorvilier’s defiance of the magistrate judge’s orders, after repeated warnings as to
the consequences, favor the imposition of a default judgment against Defendants. While

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Dorvilier is the principal for Defendant Harry’s Nurses Registry, Inc. Therefore, his
misdeeds are on behalf of both Defendants and justifies the default judgment against both
Defendants.
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Dorvilier is right that the Second Circuit favors disposition on the merits, such
disposition is impossible when one party categorically refuses to participate in the
discovery process or respect the court’s authority.
II
The magistrate judge’s R&R is adopted except for one procedural nuance. Fed. R.
Civ. P. 37 allows the Court to directly impose a default judgment, not just a default.
Fed. R. Civ. P. 37(b)(2)(A)(vi). Therefore, Defendants’ answer is stricken, and a default
judgment is entered against them. The matter is referred back to the magistrate judge for
consideration of damages and any other appropriate remedies.
SO ORDERED
_/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
October 4, 2017

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