Antonmarchi v. Con Edison

Filing 185

MEMORANDUM ORDER terminating 159 Motion for Sanctions; terminating 163 Motion in Limine. The Amended Complaint is hereby dismissed with prejudice pursuant to Rule 37(b) of the Federal Rules of Civil Procedure and the Court's inherent author ity, and the pending motion in limine is denied as moot. Con Edison is directed to serve and file by April 2, 2012, evidence of the expenses and attorneys' fees it incurred in making the instant motion for sanctions. Any response in opposition i s due by April 16, 2012, and any reply is due by April 23, 2012. This Memorandum Order resolves docket entry numbers 159 and 163. The Clerk of the Court is respectfully requested to enter judgment dismissing the Amended Complaint and close this case. (Signed by Judge Laura Taylor Swain on 3/19/2012) (ft)

lJNlTED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------x
ARIEL ANTONMARCHI,
Plaintiff,
No. 03 Civ. 7735 (LTS)(KNF)

-v-

CONSOLIDATED EDISON COMPANY
OF NEW YORK,
Defendant.

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MEMORANDUM ORDER

Plaintiff Ariel Antonmarchi ("Antonmarchi") brings this action against his former
employer, defendant Consolidated Edison Company of New York, Inc. ("Con Edison"), alleging
violations of Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of
1866, the New York State Human Rights Law and the New York City Human Rights Law.
Con Edison, having discovered that Antonmarchi engaged in a variety of pretrial
misconduct, has moved pursuant to Rules 16(f), 37(b) and 41(b) of the Federal Rules of Civil
Procedure and the Court's inherent authority for an order dismissing the Amended Complaint or,
alternatively, making factual findings in Con Edison's favor, precluding certain evidence and/or
holding that, when this case goes to trial, the jury charge will include an inference instruction
adverse to Antonmarchi. Con Edison has also filed a motion in limine seeking to preclude
certain testimony and evidence as inadmissible. The Court has jurisdiction of Plaintiffs Title
VII and section 1981 claims under 28 U.S.c. § 1343 and 42 U.S.c. § 2000s-5(f)(3). The Court
exercises supplemental jurisdiction of Plaintiffs state and local human rights laws claims

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pursuant to 28 U.S.C. § 1367. The Court has reviewed carefully the parties' submissions and,
for the fol1owing reasons, Con Edison's motion will be granted and this action will be dismissed.
BACKGROCND

Antonmarchi has willfully disobeyed multiple court orders to produce discovery
material. At a pretrial conference on November 5, 2010, Antonmarchi claimed that he had
documentary evidence that his union's lawyer, Kevin Jenkins ("Jenkins"), was in Albany, New
York, on November 22, 2002. Antonmarchi asserted that he intended to use this evidence to
rebut any allegation that Jenkins witnessed Antonmarchi sign an agreement in New York City on
November 22,2002, releasing Con Edison from liability for the events fonning the basis of
Antonmarchi's instant claims. At the pretrial conference, waving documents in his hand,
Antonmarchi addressed the Court and stated:
I'm not going to present it now, but in trial I will. I have pictures of
[Jenkins] in a rally. He's in Albany on the 22nd and the paper that I
gave ... was signed by a Sharon Kemp, not Mr. Jenkins, because he
wasn't there. I have proof. That'll be in the trial.
(Nov. 5,2010, Tr. p. 34.)1 At another pretrial conference three months later, the Court instructed
Antonmarchi to produce by the following day the documents that he had held up at the earlier
conference. (Feb. 10,2011, Tr. p. 25-26.) Antonmarchi did not produce the documents.
Instead, his attorney informed Con Edison by email that Antonmarchi did not possess the
evidence that he had claimed to possess, explaining:
Apparently, I misunderstood my client .... [H]e does not have any
documentation regarding [Jenkins's] whereabouts. Apparently, the
newsletter that he had in court on the last court date had something

The title page of the transcript incorrectly shows the date of the conference as
November 3, 2002.
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to do with a "union member being made whole" by a $30,000 payout.
??? [sic] Bottom line, there are no documents in my client's
possession at this time regarding Jenkins' whereabouts on the day in
question (though I'm sure he'll keep looking).
(Mar. 1, 2011, Mem. End. Letter, docket entry no. 154.) On March 10, 2011, the Court issued a
second order, which specifically instructed Antonmarchi that he "must immediately produce the
documents to which he referred at the courthouse (be they newsletters, photographs or other
evidence and whether or not he now contends that they are irrelevant)." (Id.) For two more
weeks, Antonmarchi failed to produce any documents. Finally, at a court-ordered deposition, he
produced certain materials to Con Edison, none of which related to the whereabouts of Jenkins.
Antonmarchi has also admitted to withholding other relevant documents. He
testified that, in 2005, he shipped boxes of relevant documents to Puerto Rico, despite his
discovery obligations to produce such material, because, he claims, he received death threats.
When asked at his deposition where the boxes are now, Antonmarchi responded, "That's for me
to know," then "I refuse to answer that question" and "I don't have to answer that" and
eventually stating that the boxes were in "Cabo Rojo" with his sister but that he did not know the
specific address. (Id. at 77-78,159.) At the same deposition, after speaking with his attorney,
Antonmarchi disclaimed his earlier representations that the boxes contained documents relevant
to this action. The boxes and their contents have still not been produced to Con Edison.
Antonmarchi has also admitted that, while he was under an obligation to produce
discovery material, he failed to produce to his attorney or Con Edison an additional box full of
documents relevant to this action and that the box and its contents were destroyed when his
basement flooded in or about 2005.

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Antonmarchi has demonstrated by his deposition testimony that his disregard for
his discovery obligations and the orders of this Court has been willful. He testified, for instance,
that when he saw one of the orders directing him to turn over documents, he felt "it really didn't
matter" and told his attorney, "I'm not turning [the documents] over." (Id. at 165, 168.) In the
same deposition, Antonmarchi also denied telling the Court that he had pictures of Jenkins in
Albany on November 22,2002. When defense counsel directed Antonmarchi's attention to a
copy of the court transcript indicating that Antonmarchi made just such a statement,
Antonmarchi responded, "I never said that. I never said that," and "I don't think the Judge said,
I don't think she said there was going to be a transcript of that day." (PI.' s Mar. 23, 2011, Dep.
Tr. p.127, 129-30.)
DISCUSSION

If a party fails to obey an order to provide discovery, the court may dismiss the
action in whole or in part, pursuant to Rule 37(b) of the Federal Rules of Civil Procedure. Fed.
R. Civ. P. 37(b)(2)(A). "Rule 37 sanctions must be applied diligently both to penalize those

whose conduct may be deemed to warrant such a sanction and to deter those who might be
tempted to such conduct in the absence of such a deterrent." Penthouse Int'! Ltd. v. Playboy
Entrp., 663 F.2d 371, 386 (2d Cir. 1981 ) (citation, internal quotation marks and some
punctuation omitted). Courts also possess the inherent authority to dismiss an action when a
party fails to "tell the truth and participate in discovery in good faith." McMunn v. Mem. Sloan
Kettering Cancer Ctr., 191 F. Supp. 2d 440,445 (S.D.N.Y. 2002).
Antonmarchi willfully disobeyed two court orders to produce documents he held
in his hand at a pretrial conference. Moreover, he has equivocated and contradicted himself
regarding the contents of these documents, claiming in court that the documents contained
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evidence that Jenkins was in Albany, New York, on November 22, 2002, but later denying that
he possessed such documents and even denying that he had claimed to possess such documents.
Because of Antonmarchi' s repeated and willful disregard for court orders and the potential for
prejudice to the defendant, this action will be dismissed with prejudice pursuant to Rule 37(b) of
the Federal Rules of Civil Procedure.
This action will also be dismissed pursuant to the Court's inherent authority.
Antonmarchi has admitted to shipping boxes of discoverable material to Puerto Rico in
2005-boxes that were never produced to Con Edison and which, now, Antonrnarchi either
refuses to produce, cannot produce because he does not know where they are, or will not produce
because he asserts the documents in the boxes are not relevant to this action. He has also
admitted to withholding evidence during the discovery process, which has now been spoliated.
Because of Antonmarchi's clear failure to participate in discovery in good faith, this action will
be dismissed.
When granting sanctions pursuant to Rule 37(b), the Court must, after giving an
opportunity to be heard, require the offending party or his attorney, or both, to pay the movant's
reasonable expenses incurred in making the motion, including attorney's fees. Antonrnarchi
asserts that Rule 37(b) sanctions must not be imposed at this time because Con Edison has failed
to request a pre-motion conference as required by Local Rule 37.2. However, the Court received
a letter from Con Edison req uesting a pre-motion conference regarding Antonmarchi' s failure to
comply with the Court's February 10,2011, Order. The letter was dated March 1,2011, and
indicated that plaintiff's counsel had been provided a copy of the letter. Con Edison having
fulfilled its obligation under Local Rule 37.2, and having also given notice of its fee request in
its motion papers, sanctions will be imposed and Antonrnarchi will be required to pay Con
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Edison's attorneys' fees and other reasonable expenses incurred in making the motion for
sanctions.
CONCLUSION

For the foregoing reasons, the Amended Complaint is hereby dismissed with
prejudice pursuant to Rule 37(b) of the Federal Rules of Civil Procedure and the Court's inherent
authority, and the pending motion in limine is denied as moot. Con Edison is directed to serve
and file by April 2, 2012, evidence of the expenses and attorneys' fees it incurred in making the
instant motion for sanctions. Any response in opposition is due by April 16, 2012, and any reply
is due by April 23, 2012. This Memorandum Order resolves docket entry numbers 159 and 163.
The Clerk of the Court is respectfully requested to enter judgment dismissing the
Amended Complaint and close this case.
SO ORDERED.
Dated: New York, New York

March 19,2012

United States District Judge

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