Price et al v. City of Troy, New York et al
Filing
153
DECISION and ORDER. Defendants' motion 124 seeking the sanction of dismissal or preclusion is DENIED; Defendants' motion seeking an order to compel is GRANTED. Plaintiffs are directed to respond to all such interrogatores and demands by 8/7/2015. Plaintiffs are cautioned that failure to comply may result in sanctions and dismissal; and Defendants' application for an award of attorneys fees is DENIED without prejudice. Signed by Magistrate Judge Christian F. Hummel on 6/19/2015. (lah)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL PRICE, et al.,
Plaintiffs,
v.
1:12-CV-815
(DNH/CFH)
CITY OF TROY, et al.,
Defendants.
CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
APPEARANCES:
OF COUNSEL:
Office of Vincent U. Uba
750 Broadway
Albany, New York 12207
Attorneys for Plaintiffs
VINCENT U. UBA, ESQ.
Pattison, Sampson Law Firm
22 First Street
P.O. Box 208
Troy, New York 12181-0209
Attorneys for Defendants
DONALD J. SHANLEY, ESQ.
City of Troy Corporation Counsel
Department of Law
1776 6th Avenue
Tory, New York 12180
Attorneys for Defendants
IAN H. SILVERMAN, ESQ.
DECISION AND ORDER
On May 16, 2012, plaintiffs Michael Price, 24 Albany Holding LLC, and Youth
Empowerment Services of New York Inc. commenced this action against defendants. Dkt.
No. 1. On July 21, 2014, plaintiffs filed an amended complaint, which, among other things,
added David L. Slattery as a plaintiff. Dkt. No. 105. On July 31, 2014, defendants filed an
answer with counterclaims. Dkt. No. 106.
I. Background
As previously described in an earlier Decision and Order of this Court, “[g]enerally,
plaintiffs allege a number of violations of state and federal law stemming from actions by
defendants in connection with plaintiffs’ ownership and occupation of a building, located at
275 Fourth Street in Troy, New York.” Dkt. No. 77 at 2.
On March 4, 2015, defendants’ attorney filed a motion for an order dismissing the
amended complaint pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure
(“FRCP”) or, in the alternative, an order pursuant to Rule 37(a) of the FRCP compelling
plaintiffs Michael Price, 24 Albany Holding LLC, and Youth Empowerment Services of New
York Inc. to respond to discovery demands. Dkt. No. 124. 1 Defendants further seek to
recover attorney’s fees. Id. Plaintiffs filed an affidavit of counsel and memorandum of law
in opposition to defendants’ motion. Dkt. Nos. 133, 133-2. On May 19, 2015 defendants
filed a further affidavit in support of their motion. Dkt. No. 149.
II. Procedural History
On October 10, 2012, the Court issued a Unif orm Pretrial Scheduling Order which
required, among other things, that discovery be completed by July 31, 2013. Dkt. No. 27.
On April 30, 2013, this Court issued a text order which extended the deadline for the
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Defendants’ motion is not directed to plaintiff David L. Slattery.
-2-
completion of discovery until September 6, 2013. Dkt. No. 56.
By letter motion dated September 4, 2013, plaintiffs’ counsel requested an extension
of the discovery deadline. Dkt. No. 64. On September 5, 2013, this Court issued an Order
providing that the discovery deadline would be reset pending a decision on plaintiffs’ motion
for a default judgment. Dkt. No. 65.
On November 1, 2013, the Court conducted a discovery conference. On November
4, 2013, the Court issued an Order directing plaintiffs to provide supplemental responses to
each set of interrogatories served by defendants by December 11, 2013. Dkt. No. 73. By
text order dated December 26, 2013, the Court granted plaintiffs’ request for an extension
to serve supplemental interrogatory responses until January 31, 2014. Dkt. No. 75.
A settlement conference was conducted on January 10, 2014. When the case did
not settle, the Court issued an Order extending plaintiffs’ time to serve supplemental
interrogatory responses until February 28, 2014. Dkt. No. 76. That Order further provided
there would be no further extensions of that deadline. Dkt. No. 76.
A conference was conducted on March 6, 2014 to address various discovery-related
issues. Following that conference, the Court issued an Order which, among other things,
extended discovery until July 14, 2014. Dkt. No. 91.
The parties engaged in extensive motion practice directed toward plaintiffs’
complaint. On June 26, 2014, this Court issued a Mem orandum-Decision and Order (Dkt.
No. 98) which granted defendants’ motion for a more definite statement pursuant to Rule
12(e) (Dkt. No. 82) and granted plaintiffs’ motion for leave to amend the complaint (Dkt. No.
96). Plaintiffs were directed to file an amended complaint by July 12, 2014. Dkt. No. 98.
By letter motion dated July 10, 2014, plaintiffs requested an extension of time to file
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an amended complaint as well as an extension of the deadlines for the completion of
discovery and the filing of dispositive motions. Dkt. No. 103. On July 14, 2014, the Court
issued a text order which extended the deadlines for the filing of an amended complaint, the
completion of discovery, and the filing of dispositive motions. Dkt. No. 104. On September
12, 2014, the Court issued another text order extending discovery until December 31, 2014.
Dkt. No. 111.
A discovery conference was conducted on February 10, 2015. Following that
conference, a text order was issued extending discovery until February 27, 2015 to permit
plaintiffs a further opportunity to respond to defendants’ interrogatories. Dkt. No. 118.
On March 3, 2015, plaintiffs’ counsel filed a motion seeking to be relieved as counsel
for plaintiffs Michael Price, 24 Albany Holding LLC, and Youth Empowerment Services of
New York Inc. Dkt. No. 122. On June 13, 2015, the Court issued an Order g ranting Mr.
Uba’s motion to be relieved as counsel for plaintiffs Michael Price, 24 Albany Holding LLC,
and Youth Empowerment Services of New York Inc. Dkt. No. 150. The Court further
directed that Mr. Uba continue as counsel for all plaintiffs until after oral arguments had
been conducted on defendants’ motion for partial summary judgment (Dkt. No. 129), motion
to amend/correct the motion for partial summary judgment in order to seek total summary
judgment (Dkt. No. 135), and a motion for summary judgment directed to plaintiff David L.
Slattery (Dkt. No. 136). The Court has scheduled oral argument on those motions for July
10, 2015.
III. Discussion
Pursuant to the Federal Rules of Civil Procedure, sanctions may be awarded where
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parties fail to comply with court orders or fail to cooperate in discovery. FED. R. CIV. P.
37(b), (d). Such sanctions may include (1) an order establishing facts; (2) an order
precluding issues, evidence, or claims; (3) an order striking a pleading; (4) staying
proceedings; (5) dismissing the action; or (6) rendering a default judgment against the
disobedient party. Id. at (b)(2)(A)(i-vi), (d)(3).
A district court has broad discretion to impose sanctions. Residential Funding Corp.
v. De George Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (citation om itted). Dismissal is a
“drastic remedy” which should generally only be used when lesser sanctions would be
inappropriate. Southern New England Tel. Co. v. Global NAPS Inc., 624 F.3d 123, 144 (2d
Cir. 2010) (citation omitted). However, discovery orders are meant to be complied with;
thus, dismissal is justified when the non-compliance may be attributed to wilfulness, bad
faith, or the fault of the offending party. Id. (citations omitted). On deciding an appropriate
sanction, “the court may consider the full record . . . [specifically] the wilfulness of the noncompliant party; the reasons for the noncompliance; the efficacy of lesser sanctions; the
duration of the noncompliance; and whether the party has been warned of the
consequences of noncompliance.” Broadcast Music, Inc. v. Metro Lounge & Cafe LLC, No.
10-CV-1149 (NAM/ATB), 2012 WL 4107807, at *2 (N.D.N.Y. July 18, 2012) (citations
omitted). The goal of sanctions are to “ensure that a party will not benefit from its own
failure to comply . . . [act as] specific deterrents and seek to obtain compliance with the
particular order issued [and] . . . serve [as] as a general deterrent on the case at hand and
on other litigation . . . .” Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir. 1988)
(citations omitted). Defendants City of Troy, Rosamilia, and Chamberlain contend they
served separate sets of interrogatories upon plaintiffs Price, 24 Albany Holding LLC, and
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Youth Empowerment Services of New York Inc., all dated in August 2014. Dkt. No. 124-1
at 2-3. Defendant McGrath served sets of interrogatories upon Price, 24 Albany Holding
LLC, and Youth Empowerment Services of New York Inc., all dated September 26, 2014.
Dkt. No. 124-1 at 3. Defendant Bentos contends he served a second set of interrogatories
in connection with the amended complaint dated September 4, 2014 on plaintiff Price. Dkt.
No. 124-1 at 3. Defendants Johnson, Wade, French, and Tedesco served separate sets of
interrogatories upon plaintiffs Price and 24 Albany Holding LLC dated October 16, 2014.
Dkt. No. 124-1 at 3. Each defendant contends that the interrogatories served upon the
various plaintiffs remain unanswered. Dkt. No. 124-1 at 2. 2 Plaintiffs’ counsel concedes
that plaintiffs have failed to respond to the various interrogatories propounded by
defendants. Dkt. No. 133 at 2-3. Defendants have also served demands for identity of
witnesses, production of documents, and for computation of damages. Dkt. No. 124-1.
Plaintiffs also concede they have failed to respond to each of those demands. Dkt. No.
133.
Defendants correctly contend that plaintiffs Price, 24 Albany Holding LLC, and Youth
Empowerment Services of New York Inc. have failed to comply with a series of Court orders
directing plaintiffs to provide responses to defendants’ interrogatories and outstanding
demands. Dkt. Nos. 73, 75, 76. “Noncompliance with discovery orders is considered wilful
when the court’s orders have been clear, when the party has understood them, and when
the party’s non-compliance is not due to factors beyond the party’s control.” Baba v. Japan
2
While this motion was pending, plaintiff Price, acting pro se, served responses to the various
interrogatories propounded by defendants. Dkt. No. 149. Defendants contend the interrogatories are
incomplete, unresponsive, and unintelligible. Dkt. No. 149 at 2. The Court has reviewed the responses and
agrees that they are incomplete and insufficient.
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Travel Bureau Int’l, Inc., 165 F.R.D. 398, 402-03 (S.D.N.Y. 1996) (citations omitted).
Plaintiffs’ failure to respond to defendants’ discovery demands and interrogatories is
directly tied to the complete breakdown in communication between plaintiffs’ current
counsel, Mr. Uba, and plaintiff Price. That breakdown is documented in great detail in the
affidavit filed in camera by Mr. Uba in support of his motion to withdraw as counsel for the
plaintiffs who are the focus of this motion. Dkt. No. 141. Based in large part on that in
camera submission, the Court issued an Order granting Mr. Uba’s motion to be relieved as
counsel. Dkt. No. 150.
The affidavit Mr. Uba submitted in opposition to this motion further highlights the
strained relationship between counsel and plaintiffs Price, 24 Albany Holding LLC, and
Youth Empowerment Services of New York Inc. Dkt. No. 124. It also addresses the
difficulties in responding to the interrogatories and other discovery-related demands due to
plaintiff Price’s incarceration.
Under the circumstances of this case, as outlined above, this Court finds plaintiffs’
failure to respond to defendants’ interrogatories and discovery demands was not wilful or in
bad faith. A finding of wilful disobedience is generally required before the Court will impose
sanctions. See Luft v. Crown Publishers, Inc., 906 F.2d 862, 865 (2d Cir. 1990) (requiring
conduct that is “wilful” or “in bad faith” before a sanction is imposed); see also King v. Allied
Vision, Ltd., 65 F.3d 1051, 1063 (2d Cir. 1995) (requiring a finding of “wilful” contempt prior
to award of attorney fees). Defendants have proffered no evidence of wilful disobedience
on plaintiffs’ part. As such, defendants’ motion seeking the sanctions of dismissal or
preclusion is DENIED.
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IV. Conclusion
WHEREFORE, its is hereby ORDERED that:
(1) Defendants’ motion seeking the sanction of dismissal or preclusion is DENIED;
(2) Defendants’ motion seeking an Order compelling Michael Price, 24 Albany
Holding LLC, and Youth Empowerment Services of New York Inc. to respond to all
outstanding interrogatories and discovery requests is GRANTED. Plaintiffs are
directed to respond to all such interrogatories and demands by August 7, 2015;
(3) Plaintiffs Price, 24 Albany Holding LLC, and Youth Empowerment Services of
New York Inc. are cautioned that failure to comply with this Decision and Order will
result in this Court recommending a severe sanction be imposed including striking
plaintiffs’ complaint in this matter, dismissing all of plaintiffs’ claims and the award of
attorneys fees to defendants;
(4) Defendants application for an award of attorneys fees is DENIED without
prejudice to a renewed application if plaintiffs fail to comply with this Decision and
Order.
IT IS SO ORDERED.
Dated: June 19, 2015
Albany, New York
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