Baez et al v. The City of New York et al

Filing 28

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)

prosecution. Id

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------x
VANESSA BAEZ, JOAQUIN LUGO, and CRISTINA
MONTANEZ,
Plaintiffs,

-against-

CITY 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 and in Their Official Capacities,:

MEMORANDUM & ORDER
16-cv-6340 (ENV) (VMS)

Defendants.
---- ·---------------------------------------------------------------X
VITALIANO, D.J.,

At the center of the storm is a failure of diligence on the part of plaintiffs' counsel, who

represents a contemptuous client, which prompted defendants' motion for sanctions, pursuant to
Rule 37(b) of the Federal Rules of Civil Procedure, and, alternatively, to dismiss for failure to

prosecute, pursuant to Rule 41(b). Defs.' Mot. to Dismiss (ECF No. 25). Litigation commenced
in November 2016, when plaintiffs Vanessa Baez, Joaquin Lugo, and Cristina Montanez filed a
complaint against the City of New York, Police Officer Ryan Doherty, and ten "John Doe"
police officers, as authorized by 42 U.S.C. § 1983. Compl. (ECF No. 1).
The claimed violations of constitutional rights are said to result from plaintiffs' arrest for

selling alcohol to minors and their ensuing 18 hours in custody prior to release without

,r 17.

Pertinent on the motion is the fact that, after an unascribed eight-month

delay in the proceedings, plaintiff Baez failed to appear for a noticed deposition. She then
disobeyed a follow up court order to appear for a rescheduled deposition. For the reasons set
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December 20, 2017, defense counsel mailed notices of deposition to plaintiffs' counsel, id 111,
during the week of January 22, citing concerns about her job, id 114. Baez's refusal to appear

to communicate with her lawyer, Epperson Deel. 1 6, and failed to appear for her deposition, id

forth below, defendants' 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 facts and

issues raised in the lawsuit are not relevant to it. The litigation history is that plaintiffs

commenced this action on November 15, 2016. Compl. Over a year later, on December 19,
2017, all counsel conferred by phone and agreed to conduct depositions during the week of

January 22, 2018. Deel. of Hannah V. Faddis 19 (ECF No. 25-2) ("Faddis Deel."). On

but plaintiffs; 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, defense counsel followed up by email. Faddis Deel. 1 12. Nevertheless, on

January 22, 2018, plaintiffs' counsel gave notice that Baez was refusing to appear for deposition

prompted a motion to compel Baez's appearance, Mot. (ECF No. 22), and the issuance by

Magistrate Judge Scanlon of an order requiring her to appear for a deposition during the week of
February 12, 2018, setting discovery to close on February 16, 2018, and indicating that no

further extensions of time would be granted. It was during this time period that Baez chose not

17. On February 21, 2018, after discovery had been ordered closed by Judge Scanlon, Baez
resumed communication with her counsel and advised that she was now willing to appear for a

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deposition during the week of February 26. Id Plaintiffs' counsel having not sought an order
·reopening discovery, defense counsel refused to schedule her deposition. Id; Defs.' Reply at 4
(ECF No. 27). On March 2, 2018, defendants moved for sanctions and to dismiss for lack of
prose()ution.

Discussion
I.

Sanctions Under Rule 37(b)

To enforce the discovery rules, Rule 37(b) empowers district courts to impose sanctions
for "fail[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 part," Fed. R. Civ. P.
37(b)(2)(A)(v). The district court "has wide discretion in imposing sanctions, inclucling 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. MIV Fakredine, 951 F.2d 1357, 1365 (2d Cir. 1991)
(citations omitted). The Second Circuit has set forth four factors for district courts to consider in
determining whether to impose dismissal as a sanction: "(1) the willfulness of the non-compliant
party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the
period of noncompliance; and (4) whether the non-compliant party has been warned of the
consequences of . . . noncompliance." Agiwal v. Afid'Island Mortg. Corp., 555 F.3d 298, 302 (2d
Cir. 2009) (alteration in original) (citation omitted).
a. Reason for Noncompliance

Making the dog ate my homework excuse blush, Baez's attorney alibied for 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.

Epperson Deel. i-f 2. But, even if Baez's attorney never received the physical notices, the docket
memorializes for all to see that he conferred by phone with defense counsel prior to the notice's
mailing and agreed to complete depositions during the week ofJanuary 22, 2018. Mot. for
Extension at 1 (ECF No. 22). Defense counsel was, of course, entitled to assume that this assent
by Baez's counsel was upon notice and confirmation 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 for 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 Er.1ps. & Rest. Emps. Int'! Union,
No. 00 Civ. 3613 (LAP), 2004 WL 1943099, at *25 (S.D.N.Y. Aug. 27, 2004)). Therefore, to
the extent that Baez was aware ofthe pending deposition schedule or her attorney failed to
inform.her ofthat schedule, sanctions may be imposed.
Unilaterally, after her counsel had received unequivocal notice of the scheduling ofher
deposition, Baez decided not to seek judicial reliefand, instead, announced that she would not
appear for her January deposition because "she had just started a new job [and] would lose her
job ifshe missed work for the deposition." Epperson Deel. i-f 6. The Court is sympathetic to this
predicament, but the advance notice documented in defendants' letter ofJanuary 30, 2018
suggests that Baez could hav� worked around her scheduling concerns. Regardless, even if
Baez's failur� to appear in fanuary was found excusable, her repeat performance failure to
appear during the week ofFebruary 12, 2018, pursuant to a court order, is not.
Refining the focus, with Baez's exasperating New Year's noncompliance, Magistrate
Judge Scanlon issued a rescheduling order, on January 31, 2018, directing Baez to appear for a
deposition during the week ofFebmary 12, 2018, so that discovery could close, as she had

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directed, by February 16, 2018. Baez once again failed to appear. Seeking to lower. the bar for
what might pass for a legitimate excuse, Baez's counsel offers that "perhaps" Baez failed to
comply with Judge Scalon's order to "demonstrate her displeasure at the short notice [of the
January deposition]." Id.

'ii 6.

Obviously, mere "displeasure" with the Court or her counsel is

more than an insufficient excuse for ignoring an explicit court order; Such conduct is ·
contemptuous. Therefore, the willfulness of Baez's noncompliance counsels in favor of
dismissal.
b. Lesser Sanction
The next factor to consider is the efficacy of a lesser sanction .. Certainly, Baez could be
ordered, once more, to appear for a deposition. Some cause for optimism about the efficacy of
such an order is provided by Baez's resumption of communication with her lawyer. In fact, at
one point, she expressed willingness to appear during the week of February 21, 2018. That
concession was, however, at odds with Magistrate Judge Scarilon's order of January 31, 2018,
which•expressly warned that "[n]o further extensions of time will be given." With that order
1mrelieved, notwithstanding Baez's supposed amenability 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. Therefore, the Court must impose a
more severe sanction than a simple repeat of its January 31, 2018 order. Moreover, the Rules
mandate the issuance of an order requiring "the disobedient party, the attorney advising that
party, or both to pay t}:le reasonable expenses, including attorney's fees, caused by the failure"
.

.

given that Baez's failure to appear for deposition as ordered by the Court was not "substantially

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claimsthat could be precluded, see Fed.R.Civ.P.37(b)(2)(i)-(ii). Additionally, not that

justified." Fed.R. Civ.P.37 (b)(2)(C). Other "lesser" sanctions would be hard to devise. For
example, neither party has proposed specific facts that could be designated as established or

plaintiff responded to it, defendants' argument takes the position that "[a]ny order of preclusion,
or designation of facts as established ...would necessarily implicate Baez's claims in their
entirety, which would be tantamount to dismissing her claims" altogether. Def.Br. at 6 (ECF
No; 25,.1).

Therefore, practically speaking, the only viable "lesser sanction" is another order to
appear for a deposition, but coupled with an award of costs, including attorney's fees incurred by
defendants 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 are explicitly and sternly warned that
failure to comply with this discovery order setting a period within which she must sit for
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 from the agreement, she simply breached jt That caused
defendants the expense of seeking a rescheduling order from Judge Scanlon. The order directed
Baez to appear for deposition the week of February 12, 2018. She refusecl. Then Baez deigned
to resurface on February 21, 2018. Using these time marke�s, the period ofpractical delay is
approximately one month (mid-January to mid-February 2018). However, for purposes of a
R�le '.3 7(b) motion, in calculating the period of delay� the relevant delay is only that from

February 16, 2018 - the last date on which Baez could appear for 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 for failures 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 for preclusion been perfected.
d. Notice
The final factor inquires whether Baez was 011 notice that her lawsuit might be dismissed
account ofher noncompliance. Significantly, no order on the docket warned her ofthe

011

possibility ofdismissal. In assessing her culpability, however, notice is taken that defendants
had previously moved for dismissal "pursuant to Rule 41(b) for failure to prosecute, and failure
to comply with the Court's September 14th Order." Mot. for Extension (ECF No. 2i).
Moreover, Baez is and was represented by counsel, who presumably complied with his
obligation to communicate that order to her. Arguably, these facts provide constructive notice
.

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but do not, in and ofthemselves, establish actual notice. Such constructive notice would seem
insufficient to support dismissal. The Second Circuit has held that a warning from 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 of1\1odern Art, 29 F.3d 47, 50 (2d Cir. 1994)). It is not a far
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., White v. City ofNew York, No. 08-cv-2238 (KAM)

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(MDG), 2009 WL 3233121, at *2 (E.D.N.Y. Oct. 2, 2009). This factor, 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 sanction of dismissal is not. A righting of the,
discovery ship is the main objective of this sanctions order. To do that, it must, first, order that
Baez appear for a deposition to be completed before June 28, 2019. She is expr�ssly warned
that, if she fails 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
failure to appear for a deposition during the period from January 22 to February 16, 2018 and of
the making of this motion, including attorney's fees. In furtherance of this sanctions order,
plaintiffs'counsel is directed to explain her obligations under this order to Baez, who Vvill be
expected to maintain active communication with her lawyer.
Dismissal Unded:�ule 41(b)

II.

· Under Rule 4 i (b), courts have power "to dismiss a complaint for failure to comply with a
courtorder, treating noncompliance as a failure to prosecute." Simmons v. Abruzzo, 49 F.3d 83,
87 (2d Cir. 1995). "Courts have repeatedly found that ' [d]ismissal of an action is warranted
when a litigant, whether represented or instead proceeding pro se; fails 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
' .

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dismiss for failure to prosecute, a district court must consider "1) the dunition of plaintiff's
failures or non-compliance; 2) whether plaintiff had notice that such conduct would result in
dismissal; 3) whether prejudice to the defendant is likely to result"; 4) the balai�ce of the court's

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"interest in managing its docket against plaintiffs interest in receiving an opportunity to_be
heard;" and 5) ''the efficacy of a sanction less draconian than dismissal." Ba.ff.av. Donaldson,
·. Lufkin & 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 are similar to those relevant to the
Rule 41 (b) motion. The only additional factors for purposes of Rule 41 (b) are prejudice to the
defendant and the court's interest in managing its docket. Defendants have not explained what
prejudice woald result from allowing plaintiff one last chance to appear ·for 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 plaintiffs' claims are identical to.Baez's,
judicial economy does not require dismissaf Therefore, because the Court has declined to
.

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dismiss this action, pursuant to Rule 37(b)(2)(A)(v), it declines to do so, pursuant to Rule 41(b),
as well.

Conclusion
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In line with the foregoing, defendant's motion for sanctions is granted to the. extent that
Baez is ordered to appear for and complete her deposition before June 28, 20 i 9. She is expressly
warned: that failure to comply with this order to appear for 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 failure to appear for deposition in the period from January 22 to
Februc1r_y 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

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directed to submit their demand for costs, including any associated time records and/or invoices,
· for assessment by Magistrate Judge Scanlon. Defend;mts' motion seeking dismissal for failure to
prosecute is denied.
So Ordered.·
Dated: Brooklyn, NewYork
May 18, 2019
/s/ Hon. Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge

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