Arnett v. United States of America et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION. Plaintiff has filed no objections to 29 Report and Recommendation. It amply describes plaintiff's total non-compliance with his discovery obligations, and establishes more than sufficient grounds for the sanction of dismissal under Rule 37. The R&R is therefore adopted as the decision of this Court granted defendants' motion to dismiss. The Clerk is directed to enter judgment accordingly. Ordered by Judge Brian M. Cogan on 8/15/2019. C/M by chambers. (Barrett, C)

C/M

Plaintiff has filed no objections to this Report and Recommendation. It amply describes plaintiff's total non-compliance
with his discovery obligations, and establishes more than sufficient grounds for the sanction of dismissal under Rule 37.
The R&R is therefore adopted as the decision of this Court granted defendants' motion to dismiss. The Clerk is directed
to enter judgment accordingly.
SO ORDERED: 8/15/19

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ELIAS ARNETT,

Digitally signed by Brian M. Cogan
___________________________________
USDJ

Pro se Plaintiff
SUA SPONTE
REPORT &
RECOMMENDATION
-againstCV 17-3339 (BMC) (AKT)
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT OF
VETERAN AFFAIRS, DR. JOHN P. FITZGERALD,
and DR. APRIL ADAMS SZAFRAN,
Defendants.
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A. KATHLEEN TOMLINSON, U.S. Magistrate Judge:
I.

PRELIMINARY STATEMENT
Pro se Plaintiff Elias Arnett (“Plaintiff”) commenced this action against the United States

of America, the United States Department of Veteran Affairs, Dr. John P. Fitzgerald, and Dr.
April Adams Szafran (“Defendants”), pursuant to the Federal Tort Claims Act, 28 U.S.C.
§§ 1346, et seq., (“FTCA”) for injuries suffered as a result of Defendants’ alleged medical
malpractice. See generally Plaintiff’s Complaint (“Compl.”) [DE 1]. Although multiple
conferences before the undersigned were held in this action, the case failed to make significant
headway owing primarily to the pro se Plaintiff’s repeated failure to comply with discovery
orders and, most significantly, his failure to retain a required medical expert.
On December 13, 2018, Defendants moved this Court to dismiss Plaintiff’s Complaint as
a discovery sanction, pursuant to Fed. R. Civ. P. 37(b)(2)(v). See generally Defendants’ Motion
to Dismiss (“Pl.’s Mot.”) [DE 22]. No opposition to that motion has been filed. In light of the

underlying history of the case as discussed below, the Court has no alternative but to recommend
to Judge Cogan that Defendants’ motion to dismiss be GRANTED.
II.

PROCEDURAL BACKGROUND
Plaintiff filed his Complaint in this matter on June 5, 2017. See DE 1. On November 1,

2017, Plaintiff filed a motion “to request an extension of time to retain an attorney.” DE 5/6. On
November 3, 2017, this Court sought additional information about Plaintiff’s circumstances,
noting that service had not been effected and, as a result, “[t]here are some complications with
Rule 4 which impact plaintiff’s motion.” DE 7. On November 17, 2017, Plaintiff filed a letter
explaining that his attempts to retain several different attorneys were unsuccessful and arguing
that his attempts constituted “good cause” sufficient to permit an extension of time to effect
service and retain counsel. DE 8. On November 21, 2017, the Court issued the following
Order:
Although the Court understands that Plaintiff has made good faith
efforts to find an attorney, that in itself does not establish “good
cause” as that term is defined in the case law of the Second Circuit.
However, the Court is granting Plaintiff extraordinary relief to the
following extent: Plaintiff will have one final opportunity to obtain
counsel and to serve the Complaint by January 8, 2018. If Plaintiff
has not obtained counsel, he must proceed pro se and take the
necessary steps to serve the defendants with the Complaint by
January 8, 2018. If Plaintiff needs assistance, he is encouraged to
contact the staff of the Pro Se Office here in the Courthouse (631712-6060). If Plaintiff does not present proof of service showing that
the Complaint was served by January 8, 2018, this Court will have
no alternative but to recommend to Judge Azrack1 that Plaintiff’s
case be dismissed.

1

This matter was subsequently reassigned several times and is now pending before
Judge Cogan.
2

DE 9 (emphasis in original). Plaintiff filed proof of service of the Summons and Complaint on
January 8, 2018, indicating that both were served upon the Defendants on December 22, 2017.
See DE 10. Defendants served and filed their Answer shortly thereafter. See DE 11, 12.
This Court set its Initial Conference for June 18, 2018 to give the pro se Plaintiff the
opportunity to retain counsel as he had requested. Defendants’ counsel was directed to serve the
Initial Conference Scheduling Order on the Plaintiff and to file proof of such service on ECF.
See DE 13. When the case was called on the morning of June 18, 2018, however, the Court
learned that the Defendants had not served Plaintiff with the Initial Conference Scheduling
Order. As a result, the Plaintiff did not appear and the Court put the Initial Conference over to
July 2, 2018. See DE 14.
On July 2, 2018, Plaintiff and counsel for the Defendants appeared for the re-scheduled
Initial Conference. See DE 16. At that time, Plaintiff again asked the Court to adjourn the
conference so that he could retain counsel. The Court declined that request, explaining to the
Plaintiff that the Court had already granted him three prior adjournments for that purpose. See
id. The Court then (1) directed Plaintiff to provide Defendants’ counsel with executed HIPAAcompliant releases within two weeks, (2) set a schedule in place for the initial phase of
discovery, and (3) scheduled September 25, 2018 for the Discovery Status Conference once
paper discovery had been exchanged. See id. Plaintiff was also
reminded that in order to proceed with this case, he must obtain a
medical expert to testify in this action. Otherwise, plaintiff’s case
cannot proceed. . . . By the time plaintiff appears here for the
September 25, 2018 Discovery Status Conference, he must be
prepared to advise the Court that he has obtained the necessary
medical expert. Otherwise, the plaintiff is running the risk of this
Court recommending to Judge Azrack that his case be dismissed.
Id.

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On September 25, 2018, Plaintiff and Defendants’ counsel appeared for the Discovery
Status Conference. See DE 18. At that time, Plaintiff again requested an adjournment of the
conference, this time so that he could find a medical expert. See id. The Court explained to the
Plaintiff that he had had ample time to find an expert and pointed out the Court could not
continue to adjourn this matter as it had previously done. See id. Plaintiff also informed the
Court that he had not provided Defendants’ counsel with the necessary HIPAA authorizations as
directed and had not responded to Defendants’ document demand. See id. The Court stated to
the Plaintiff that his inability to find an expert was a separate issue and in no way prevented him
from providing Defendants’ counsel with the HIPAA releases or from responding to Defendants’
document demands. See id. The Court then issued the following rulings:
The Court reluctantly granted Plaintiff one final adjournment of this
matter in order for the Plaintiff to retain an expert.
The Court also provided Plaintiff with HIPPA releases at today’s
conference, and informed Plaintiff that he had one week from today
to return the executed HIPPA releases to Defendant’s counsel,
meaning that they must be postmarked no later than October 2, 2018.
Similarly, the Court instructed Plaintiff that he had one week from
today’s conference to respond to counsel’s document demands.
These too must be postmarked no later than October 2, 2018.
The Court told Defendant’s counsel that if he did not receive either
the completed HIPPA releases or the document production, counsel
was to notify the Court.
The Court emphasized to Plaintiff that this was his final opportunity
to move this action forward, and that if he failed to comply with any
of the three directives set forth today (retaining an expert by the date
of the next conference, providing HIPPA releases postmarked by
October 2, and providing his document production postmarked by
October 2), the Court will have no alternative but to recommend to
Judge Azrack that Plaintiff’s case be dismissed.

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September 25, 2018 Civil Conference Minute Order [DE 18] (emphasis in original). The Court
also scheduled a further Status Conference for November 28, 2018. See id.
On November 28, 2018, Plaintiff and Defendants’ counsel appeared before the Court as
directed. See DE 20. Unfortunately, the pro se Plaintiff informed the Court that he still had not
retained an expert for his medical malpractice claim. See id. The Court recounted the previous
warnings given to Plaintiff and pointed out that in light of the procedural history of the case,
specifically Plaintiff’s continued failure to comply with the Orders issued by the Court, the case
could not proceed. See id. The Court granted Defendants’ counsel leave to file a Rule 37 motion
by December 14, 2018 seeking dismissal as a discovery sanction. The Court informed Plaintiff
of his right to oppose the motion once it was filed. The deadline for Plaintiff’s opposition was
set at January 4, 2019. See id. the Court cautioned that it did not intend to extend these
deadlines. Further, the Court stayed all other action in the case pending review of the anticipated
Rule 37 motion. See id.
Defendants filed and served their Rule 37 motion to dismiss on December 13, 2018. See
DE 22. No opposition to that motion was ever filed by the Plaintiff.
III.

DISCUSSION
A.

Applicable Legal Principles

The subsection of Rule 37 of the Federal Rules of Civil Procedure relevant to the instant
motion provides as follows:
(2) Sanctions Sought in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's
officer, director, or managing agent--or a witness designated
under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide
or permit discovery, including an order under Rule 26(f), 35, or
37(a), the court where the action is pending may issue further
just orders. They may include the following:
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(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the
action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing
designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient
party; or
(vii) treating as contempt of court the failure to obey any
order except an order to submit to a physical or mental
examination.
*

*

*

(C) Payment of Expenses. Instead of or in addition to the orders
above, 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). As the language of the Rule itself makes clear, Rule 37 provides a
district court with a variety of potential sanctions which it may apply to a wide range of
circumstances – potential sanctions extend from payment of expenses and similar monetary
sanctions at one end of the spectrum to default judgment or dismissal of the action on the other.
See generally FED. R. CIV. P. 37; see also Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d
130, 135 (2d Cir. 2007) (“We have noted that district courts possess ‘wide discretion’ in
imposing sanctions under Rule 37.”) (quoting Daval Steel Prods. v. M/V Fakredine, 951 F.2d
1357, 1365 (2d Cir. 1991)); Xiao Hong Zheng v. Perfect Team Corp., 739 Fed. App’x 658, 661
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(2d Cir. 2018) (“Rule 37(b)(2)(A) empowers a district court to impose ‘just’ sanctions on a party
for noncompliance with a discovery order.”).
As the Second Circuit has stated,
[d]isciplinary sanctions under Rule 37 are intended to serve three
purposes. First, they ensure that a party will not benefit from its own
failure to comply. Second, they are specific deterrents and seek to
obtain compliance with the particular order issued. Third, they are
intended to serve a general deterrent effect on the case at hand and
on other litigation, provided that the party against whom they are
imposed was in some sense at fault.
Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d 67, 71 (2d Cir. 1988). In effectuating these
purposes and determining whether and which sanctions under Rule 37 are appropriate, courts
consider several well-known, non-exhaustive factors. “These include: ‘(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 had been
warned of the consequences of . . . noncompliance.’” Agiwal v. Mid Island Mortg. Corp., 555
F.3d 298, 302-03 (2d Cir. 2009) (quoting Nieves v. City of New York, 208 F.R.D. 531, 535
(S.D.N.Y. 2002)). While dismissal of an action (in the case of a plaintiff’s non-compliance) or
entry of default judgment (in the case of a defendant’s non-compliance) are extreme measures, in
certain circumstances they may be appropriate. Guggenheim Capital, LLC v. Birnbaum, 722
F.3d 444, 450-51 (2d Cir. 2013) (“Certain Rule 37 remedies—dismissing a complaint or entering
judgment against a defendant—are severe sanctions, but they may be appropriate in ‘extreme
situations,’ as ‘when a court finds willfulness, bad faith, or any fault on the part of the’
noncompliant party.”) (quoting Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir.
1990)).

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The Court also takes into account Plaintiff’s pro se status in reviewing Defendants’
motion papers and the underlying issue concerning Plaintiff’s non-compliance. However,
“Plaintiff's status as a pro se litigant does not relieve [him] of [his] obligation to adhere to all
applicable procedural rules.” Guity v. Uniondale Union Free Sch. Dist., No. 15-CV-5693, 2017
WL 1233846, at *3 (E.D.N.Y. Mar. 31, 2017); see Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 477 (2d Cir. 2006) (“[P]ro se status does not exempt a party from compliance with
relevant rules of procedural and substantive law.”) (internal quotations and citations omitted).
B.

Application to the Facts

In his Complaint, Plaintiff alleges, among other things, that prior to his undergoing a
circumcision procedure on December 18, 2014 at the VA Medical Center in Northport, New
York, the Defendant physicians failed to perform certain tests and, as a result of the circumcision
procedure, plaintiff became impotent. Compl. ¶¶ 25-27. This action is brought pursuant to the
Federal Toward Claims Act and Plaintiff charges Defendants with medical malpractice, lack of
informed consent and negligence.
As an initial matter, and as Defendants correctly point out in their motion, to prevail on a
medical malpractice claim under New York law, a plaintiff must be able to establish “(1) that the
defendant breached the standard of care in the community, and (2) that the breach proximately
caused the plaintiff’s injuries.” Arkin v. Gittleson, 32 F.3d 658, 664 (2d Cir. 1994). Moreover,
“New York law provides that, in a medical malpractice case, ‘except as to matters within the
ordinary experience and knowledge of laymen . . . expert medical opinion evidence is required’
to make out both of these elements.” Molina v. United States, No. 11-CV-04097, 2015 WL
4394045, at *9 (E.D.N.Y. July 16, 2015) (quoting Milano by Milano v. Freed, 64 F.3d 91, 95 (2d
Cir. 1995)); Sitts v.United States, 811 F. 2d 736, 739 (2d Cir. 1987) (explaining that under New

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York law “unless the alleged act of malpractice falls within the competence of a lay jury to
evaluate, it is incumbent upon the plaintiff to present expert testimony in support of the
allegations to establish a prima facie case of malpractice”) (quoting Keane v. Sloan-Kettering
Institute for Cancer Research, 96 A.D.2d 505, 506, 464 N.Y.S.2d 548, 549 (2d Dep't 1983)).
Therefore, as the Court explained to Plaintiff multiple times, his retention of a medical expert is a
prerequisite to his ability to meet his burden on the merits of his claim.
As outlined above, in reviewing Defendants’ motion and the underlying facts, the Court
considers (1) the willfulness and reason for Plaintiff’s non-compliance, (2) the efficacy of lesser
sanctions, (3) the duration of the period of noncompliance, and (4) whether the Plaintiff had been
warned of the consequences of non-compliance. Agiwal, 555 F.3d at 302-03. Here, all but
possibly one of these factors weighs in favor of granting Defendants’ motion and dismissing the
Complaint, as explained below.
With respect to the length of non-compliance, setting aside the adjournments related to
Plaintiff’s attempt to effect service and to retain counsel, Plaintiff’s failure to comply with
discovery directives related to his HIPAA authorizations and Defendants’ document requests
extended from, at a minimum, mid-July 2018 (two weeks following the Initial Conference), see
DE 16, to the most recent conference on November 28, 2018. See DE 20. Plaintiff’s failure to
retain a necessary medical expert extended, at a minimum, from the September 25, 2018
Discovery Status Conference, see DE 18, to the November 28, 2018 conference. See DE 20.
While these periods may not be viewed as objectively lengthy – two and half and two months,
respectively – they should not be viewed in a vacuum. Rather, they are indicative of a larger
failure of Plaintiff to actively participate in this litigation. This is best illustrated by the fact that,
although the Complaint was filed on June 5, 2017, service was not effected until December 22,

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2017. And, as of November 28, 2018, no discovery had been exchanged. These delays were
almost exclusively the result of Plaintiff’s inaction.
With respect to whether Plaintiff was warned of the consequences of non-compliance, the
Court advised Plaintiff multiple times that he needed to retain an expert and to comply with
discovery obligations and that his failure to complete these tasks meant that he was running the
risk of his lawsuit being dismissed. See DE 16, 18, 20.
As to the efficacy of lesser sanctions, in light of the nature of Plaintiff’s non-compliance,
particularly his failure to retain a medical expert, there is nothing the Court can do to resolve this
issue. See Sitts, 811 F. 2d at 742 (finding that since plaintiff had no medical expert who would
testify for him at trial, and since plaintiff did not identify such an expert prior to the courtimposed deadline, the District Court properly found that plaintiff’s failure to have such an expert
was dispositive, requiring the entry of judgment in favor of the defendant as a matter of law);
Urena v. Yan Wolfson, M.D., 09-CV-01107, 202 WL 958529, at *5 (E.D.N.Y. Mar. 20, 2012)
(“This requirement for a plaintiff to submit expert medical opinion applies equally to pro se
inmate plaintiffs.”). Here, without an expert, this action is fatally flawed.
And finally, with respect to the willfulness of Plaintiff’s non-compliance, while his
failure to retain an expert may not necessarily be considered “willful” in the sense that he
attempted to but was unable to retain one, under the circumstances of this case the Court finds
that Plaintiff Arnett’s omissions were willful. His failure to participate in discovery despite
warnings of the consequences, his failure to provide the necessary HIPAA authorizations despite
specific Orders from the Court to do so on multiple occasions, and his general failure to comply
with the Orders of the Court all support the conclusion that this case cannot proceed. Cf. Fisher
v. Richmond, The Am. Intl. Univ. in London, Inc., 18-2477-CV, 2019 WL 2024815, at *2 (2d Cir.

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May 8, 2019) (denying motion for sanctions where defendant ultimately provided corrected
transcript and court concluded there was no indication that defendant acted in bad faith);
Shcherbakovskiy, 490 F.3d at 1352 (“[T]he sanction of dismissal should not be imposed under
Rule 37 unless [the party's conduct] is due to willfulness, bad faith, or any fault of the [party].”)
(internal quotation marks omitted).
IV.

CONCLUSION
For the foregoing reasons, the Court respectfully recommends to Judge Cogan that

Defendants’ motion to dismiss the Complaint as an appropriate sanction under Rule 37 be
GRANTED
V.

OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure,

the parties shall have fourteen (14) days from service of this Report and Recommendation to file
written objections. See also Fed. R. Civ. P. 6(a), (e). Such objections by an attorney of record
shall be filed with the Clerk of the Court via ECF. In the case of a party proceeding pro se, the
Pro Se Plaintiff Arnett must file his objections in writing with the Clerk of the Court within
the prescribed time period noted above. A courtesy copy of any objections filed is to be
sent to the Chambers of the Honorable Brian Cogan and to the Chambers of the
undersigned. Any requests for an extension of time for filing objections must be directed to
Judge Cogan prior to the expiration of the fourteen (14) day period for filing objections.
Failure to file objections will result in a waiver of those objections for purposes of appeal.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Beverly v. Walker, 118 F.3d 900, 901 (2d Cir. 1997),
cert. denied, 522 U.S. 883 (1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).

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Defendants’ counsel is directed to serve a copy of this Report & Recommendation
forthwith upon the pro se Plaintiff by overnight mail and first-class mail and to file proof of
such service on ECF by July 29, 2019.

SO ORDERED.
Dated: Central Islip, New York
July 24, 2019
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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