Shibata et al v. Swingle et al
Filing
91
ORDER adopting 61 Report and Recommendation in its entirety. The Amended Complaint (Dkt. No. 40 ) is DISMISSED without prejudice. Signed by District Judge Brenda K. Sannes on 10/9/2018. (sal )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TOMO SHIBATA AND YAYOI SHIBATA,
Plaintiffs,
3:16-cv-01349 (BKS/DEP)
v.
ROGER A. SWINGLE AND RAS ENTERPRISES,
Defendants.
APPEARANCES:
Plaintiffs pro se:
Tomo Shibata
Yayoi Shibata
Alturas, CA 96101
For Defendants:
Alan J. Pope
Pope, Schrader & Pope, LLP
2 Court Street, 4th Floor
P.O. Box 510
Binghamton, NY 13902
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
Plaintiff pro se Tomo Shibata brought this diversity action against Defendants Roger A.
Swingle and RAS Enterprises asserting various claims arising out of a contract and proposed
residential construction project located in Danby, New York. (Dkt. No. 40). Currently before the
Court are United States Magistrate Judge David E. Peebles’ May 9, 2018 Report and
Recommendation, (Dkt. No. 61), and Plaintiff Tomo Shibata’s objections thereto, (Dkt. No. 64).
For the following reasons, the Report and Recommendation is adopted in its entirety and the
Amended Complaint, (Dkt. No. 40), is dismissed.
II.
BACKGROUND
A.
Procedural History
Plaintiffs initiated this action on November 14, 2016, (Dkt. No. 1), and filed an Amended
Complaint on December 19, 2017, (Dkt. No. 40). On August 30, 2017, Magistrate Judge Peebles
issued a pretrial scheduling order setting a discovery deadline of March 31, 2018. (Dkt. No. 25).
Following Defendants’ repeated unsuccessful attempts to schedule Plaintiff’s deposition, (Dkt.
No. 42), Plaintiff asserted that she was financially unable to travel from her home in California to
New York and requested that her deposition be taken remotely by telephone or video conference,
(January 29, 2018 Text Minute Entry). After considering Plaintiff’s additional financial
disclosures, (Dkt. Nos. 47–48), on February 26, 2018, Magistrate Judge Peebles concluded, inter
alia, that Plaintiff had not demonstrated financial hardship sufficient to outweigh Defendants’
interest in taking her deposition in person; accordingly, he ordered Plaintiff to submit to
deposition in the Northern District of New York on a date “not later than March 31, 2018,” (Dkt.
No. 50). Further, Magistrate Judge Peebles warned that, if Plaintiff failed to attend her deposition
in New York before the close of discovery, he would recommend that the Amended Complaint
be dismissed. (Id.). Plaintiff subsequently appealed that order, (Dkt. No. 69), which this Court
affirmed on July 25, 2018, (Dkt. No. 73).
On March 12, 2018, Defendants issued a formal Notice of Deposition scheduling
Plaintiff’s deposition in New York on March 30, 2018. (Dkt. No. 54-1, at 6). Plaintiff failed to
appear. (Dkt. No. 54-1, at 2).
On April 16, 2018, Defendants filed a “motion for summary judgment to dismiss” the
Amended Complaint on the ground that Plaintiff failed to appear for deposition (Dkt. No. 54),
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which the Court referred to Magistrate Judge Peebles for a Report and Recommendation. (Dkt.
No. 55). On May 9, 2018, Magistrate Judge Peebles recommended that the Court grant Plaintiff’s
motion to dismiss 1 the Amended Complaint, (Dkt. No. 61), and Plaintiff filed her objections on
May 23, 2018, (Dkt. No. 64).
B.
Standard of Review
This court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper
objection is one that identifies the specific portions of the [report-recommendation] that the
objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl.
Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks omitted).
Properly raised objections must be “specific and clearly aimed at particular findings” in the
report. Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009).
Findings and recommendations as to which there was no properly preserved objection are
reviewed for clear error. Id. Finally, a district judge may accept, reject, or modify, in whole or in
part, the findings and recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F.
Supp. 1330, 1345 (S.D.N.Y. 1994).
III.
DISCUSSION
To the extent the Court is able to discern, Plaintiff first objects to the Report and
Recommendation on the grounds that Magistrate Judge Peebles erred in concluding that Plaintiff
willfully failed to appear for her scheduled and noticed deposition on March 30, 2018 in
As Magistrate Judge Peebles found, Defendants’ motion, styled as one for “summary judgment to dismiss” as a
result of Plaintiff’s failure to comply with the Court’s February 26, 2018 order (Dkt. No. 54, at 1), implicated Rule
37(b)(2) or Rule 41(b). Fed. R. Civ. P. 37(b)(2), 41(b); see Dkt. No. 61 at 6–11.
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Binghamton, New York, because Defendants’ counsel had in fact cancelled the deposition. (Dkt.
No. 64, at 3–4). The Report and Recommendation accurately recites what the record reflects: (i)
after Magistrate Judge Peebles ordered that Plaintiff was required to appear in New York before
the close of discovery on March 30, 2018, Defendants’ counsel offered by email seven potential
dates to take Plaintiff’s deposition; (ii) Plaintiff never responded in any manner; (iii) Defendants’
counsel formally notified Plaintiff that her deposition was scheduled for March 30, 2018, the
date of the court-imposed deadline; (iv) Plaintiff did not respond or appear for her deposition on
the scheduled date. (Dkt. No. 61, at 5). Plaintiff acknowledges as much, but argues that
Defendants’ counsel cancelled her deposition in his March 23, 2018 email that stated: “You have
not committed to come to New York for your deposition. If some reason you have changed your
mind and are coming to Binghamton for your deposition, I need to know immediately in order to
line up a court reporter.” (Dkt. No. 64-2, at 1). The email, however, indicates that Defendants’
counsel was merely exercising diligence by attempting to avoid the unnecessary expense of
hiring a court reporter for a deposition if Plaintiff had no intention of appearing. 2 It does not
suggest that Defendants’ counsel was cancelling the scheduled deposition. Accordingly,
Plaintiff’s objection is without merit. 3
Plaintiff also objects to the Report and Recommendation on the basis that two of the
cases cited to therein are based on “radically different premises, and thus cannot warrant the
degree of severity of the recommended sanction in the instant case, unless the recommended
dismissal is without prejudice.” (Dkt. No. 64, at 20–21). The Report and Recommendation,
The record indicates that Defendants’ counsel did, ultimately, schedule a court reporter for the scheduled
deposition. (Dkt. No. 54-1, ¶ 8).
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Plaintiff alleges that Defendants’ counsel’s email “was a set up to frame Plaintiff TS for the failure to attend the
noticed deposition” and that his representations to the Court amount to perjury. (Dkt. No. 64, at 4). As described
above, Plaintiff’s characterization of Defendants’ counsel’s conduct and her accusations of perjury have no
foundation in the record.
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however, cites to these cases 4 for the limited proposition that Federal Rule of Civil Procedure 37
provides a range of options for sanctions where a plaintiff fails to appear for a deposition after
being served with a proper notice. (Dkt. No. 61, at 6). Accordingly, despite whatever factual
distinctions may be drawn between those cases and the facts presently before the Court, the cases
provide the principles applicable here.
Finally, Plaintiff objects on the basis that, in recommending dismissal, Magistrate Judge
Peebles failed to consider lesser alternative sanctions to dismissal. (Dkt. No. 64, at 21 (citing S.
New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010))). The Report and
Recommendation indicates that Magistrate Judge Peebles carefully considered all of the relevant
Rule 37 and 41(b) factors, and concluded that dismissal was appropriate. (Dkt. No. 61, at 6–10).
Furthermore, in the Report and Recommendation, Magistrate Judge Peebles expressly
“considered less-drastic sanctions,” such as further reprimand, but rejected them due to the fact
that Plaintiff’s “history of non-compliance with court directives and defendants’ legitimate
discovery requests” indicates that anything less than dismissal “would be futile.” (Dkt. No. 61, at
10). There was no error. 5
In sum, the Court agrees with the Report and Recommendation and concludes that
dismissal without prejudice under Rules 37 and 41(b) of the Federal Rules of Civil Procedure is
appropriate in light of: (i) Plaintiff’s willful noncompliance; (ii) Magistrate Judge Peebles’
repeated warnings that noncompliance would result in dismissal; (iii) the fact that any lesser
The case citations to which Plaintiff objects are S.E.C. v. Razmilovic, 738 F.3d 14 (2d Cir. 2013) and Dixon v.
Albany County Board of Elections, No. 08-cv-502, 2010 WL 1171225, 2010 U.S. Dist. LEXIS 27397 (N.D.N.Y.
Feb. 18, 2010), adopted by 2010 WL 1171483, 2010 U.S. Dist. LEXIS 36546 (N.D.N.Y. Mar. 22, 2010).
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Plaintiff’s remaining objections do not identify specific portions of the Report and Recommendation she asserts are
erroneous, but are merely restatements of the arguments included in her appeal of the February 26, 2018 order
requiring her to appear for her deposition in New York. (Dkt. No. 64, at 1–14). As such, they are not proper
objections. See Kruger, 976 F. Supp. 2d at 296. In any event, the Court considered and rejected those arguments in
its July 25, 2018 Order denying her appeal. (Dkt. No. 73).
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sanction would be futile; (iv) the prejudice to Defendants that further delay would cause; and (v)
the Court’s interest in promoting judicial economy and managing its docket. 6
IV.
CONCLUSION
For these reasons it is
ORDERED that the Report and Recommendation (Dkt. No. 61) is ADOPTED in its
entirety; and it is further
ORDERED that the Amended Complaint (Dkt. No. 40) is DISMISSED without
prejudice; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with
the Local Rules.
IT IS SO ORDERED.
Dated: October 9, 2018
Syracuse, New York
Defendants’ motion did not initially indicate whether they intended to seek recovery of costs and attorneys’ fees
against Plaintiff, but Defendants have since moved for such costs and fees. (Dkt. No. 63). That motion remains
pending.
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