Kizer v. Abercrombie & Fitch Co. et al

Filing 46

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Judge Tomlinsons' R&R (Docket Entry 40) is ADOPTED IN ITS ENTIRETY, Defendants' motion to dismiss (Docket Entry 33) is DENIED, and Plaintiff is precluded from offering her expert report in support of her claims. In addition, Defendants may file a properly supported fee application consistent with this Order. So Ordered by Judge Joanna Seybert on 9/23/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHRISTINA KIZER,
Plaintiff,
-againstABERCROMBIE & FITCH CO.,
ABERCROMBIE & FITCH STORES, INC.,
And ABERCROMBIE & FITCH TRADING CO.,
d/b/a ABERCROMBIE AND FITCH, d/b/a
HOLLISTER AND RUEHL,

MEMORANDUM & ORDER
12-CV-5387(JS)(AKT)

Defendants.
---------------------------------------X
SEYBERT, District Judge:
Pending before the Court is Defendants Abercrombie and
Fitch, and Hollister and Ruehl’s (“Defendants”) motion to dismiss
Plaintiff’s Amended Complaint for failure to prosecute (Docket
Entry 33); Magistrate Judge A. Kathleen Tomlinson’s Report and
Recommendation (“R&R”) recommending that the motion be denied, but
that Plaintiff Christina Kizer (“Plaintiff”) be sanctioned for
failing to comply with the Court’s discovery orders (R&R, Docket
Entry 40); and Defendants’ Objections to Judge Tomlinson’s R&R,
(Defs.’ Objections, Docket Entry 43). For the reasons that follow,
Judge Tomlinson’s R&R is adopted, and Defendants are granted leave
to file an application requesting reasonable attorney fees and
costs.

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BACKGROUND
Plaintiff commenced this action on October 24, 2012
arguing that Defendant discriminated against Plaintiff pursuant to
42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964 (“Title
VII”), the New York State Human Rights Law, and the New York City
Human Rights Law, and that Defendants failed to pay her overtime
and spread of hours pay in violation of the Fair Labor Standards
Act, and the New York Labor Law.

(See generally, Am. Compl.,

Docket Entry 7; R&R at 1.)
Defendants filed a motion to dismiss on December 2, 2015,
alleging that Plaintiff’s case should be dismissed for failure to
prosecute because of her failure to comply with multiple discovery
orders.
2015,

(Defs.’ Br., Docket Entry 33, at 1.)
the

undersigned

referred

Defendants’

On December 11,
motion

to

Judge

Tomlinson for an R&R on whether the motion should be granted,
(Docket Entry 36), and Judge Tomlinson issued her R&R on August 5,
2016.

In her R&R, Judge Tomlinson recommends that Defendants’

motion

be

denied,

but

that

the

Court

sanction

Plaintiff

by

precluding her from offering her expert’s report in support of her
case.

(R&R at 22.)

Judge Tomlinson reasoned that dismissal would

be an excessive punishment for Plaintiff’s violations, but that
Plaintiff’s

track

record

of

“anemic

abidance”

with

Discovery/Scheduling Orders warranted a lesser sanction. (See R&R
at 18.)
2

Defendants filed Objections to Judge Tomlinson’s R&R on
August 22, 2016, arguing that (1) Plaintiff’s counsel should be
ordered to pay reasonable expenses and attorneys’ fees incurred as
a result of Plaintiff’s failures to comply with the Court’s orders,
and (2) Plaintiff should be notified that any further delays or
non-compliance

will

result

in

dismissal

of

this

action.

(Objections at 1-2.) (Defs.’ Objections, Docket Entry 43, at 12.)
DISCUSSION
The Court will first address the standard of review
before turning to Plaintiff’s Objections specifically.
I. Standard of Review
“When evaluating the report and recommendation of a
magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).

A party may serve and file

specific, written objections to a magistrate judge’s report and
recommendation within fourteen days of receiving the recommended
disposition.

See Fed. R. Civ. P. 72(b)(2).

Upon receiving any

timely objections to the magistrate judge’s recommendation, the
district “court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3).
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A party

that objects to a report and recommendation must point out the
specific portions of the report and recommendation to which they
object.

See Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at

*1 (S.D.N.Y. Mar. 4, 2002) (citations omitted).
When a party raises an objection to a magistrate judge’s
report, the Court must conduct a de novo review of any contested
sections of the report.

See Pizarro v. Bartlett, 776 F. Supp.

815, 817 (S.D.N.Y. 1991).
or

general

objections,

But if a party “makes only conclusory
or

simply

reiterates

his

original

arguments, the Court reviews the Report and Recommendation only
for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51

(E.D.N.Y. 2008) (internal quotation marks and citation omitted).
Furthermore, even in a de novo review of a party’s specific
objections, the Court ordinarily will not consider “arguments,
case law and/or evidentiary material which could have been, but
[were]

not,

instance.”

presented

to

the

magistrate

judge

in

the

first

Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at

*1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation
omitted).
II.

Reasonable Expenses
Federal Rule of Civil Procedure 37(b)(2)(A) allows a

court to impose sanctions on a party that disobeys discovery
orders.

In addition, Federal Rule of Civil Procedure 37(b)(2)(C)

provides that, instead of or in addition to imposing sanctions for
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a party’s failure to comply with a court order, “the court must
order the disobedient party, the attorney advising that party, or
both to pay the reasonable expenses, including attorney’s fees,
caused

by

the

failure,

unless

the

failure

was

substantially

justified or other circumstances make an award of expenses unjust.”
FED. R. CIV. P. 37(b)(2)(C) (emphasis added).

Although the Second

Circuit has never explicitly held that the payment of expenses
pursuant to Rule 37(b)(2)(C) is mandatory, the burden is on the
violator to show that there was a substantial justification for
the violation, or that circumstances would make it unjust to award
reasonable expenses to the moving party.

See Novak v. Wolpoff &

Abramson LLP, 536 F.3d 175, 178 (2d Cir. 2008) (“The use of the
word ‘shall’ certainly suggests that an award of expenses is
mandatory

unless

justification

or

one

of

other

the

two

exceptions--substantial

circumstances--applies.”);

Commodity

Futures Trading Comm’n v. Royal Bank of Can., No. 12-CV-2497, 2014
WL 1259773, at *1 (S.D.N.Y. Mar. 28, 2014) (explaining that the
court

is

not

required

to

consider

“the

willfulness

of

[the

disobedient party’s] conduct” when awarding expenses under Rule
37(b)(2)(C)).
Judge

Tomlinson

did

not

recommend

that

Plaintiff’s

counsel pay any fees and costs caused by Plaintiff’s failure to
comply with the Court’s discovery orders.

However, Defendants

also did not provide the Court with any information upon which
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such an award could be calculated.
and

costs

is

therefore

DENIED

Defendants’ request for fees

WITHOUT

PREJUDICE.

However,

Plaintiff may submit a properly supported fee application pursuant
to Rule 37.

The application must include an attorney declaration

attaching contemporaneous time records, as well as legal support
for the fees sought.
III. Issuing a Warning
Defendants

also

ask

the

Court

to

warn

Plaintiff’s

counsel that any further delays or noncompliance with the Court’s
orders will result in dismissal.

Although Judge Tomlinson did not

explicitly warn Plaintiff’s counsel that any future noncompliance
will not be tolerated, the Court finds that Judge Tomlinson’s
recommendation that the Court strike Plaintiff’s expert report
provides an implicit warning.

The undersigned therefore need not

supplement Judge Tomlinson’s determination any further.

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CONCLUSION
For the foregoing reasons, Judge Tomlinsons’ R&R (Docket
Entry 40) is ADOPTED IN ITS ENTIRETY, Defendants’ motion to dismiss
(Docket Entry 33) is DENIED, and Plaintiff is precluded from
offering her expert report in support of her claims.
Defendants

may

file

a

properly

supported

fee

In addition,
application

consistent with this Order.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

September
23 , 2016
Central Islip, New York

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