Bell v. Ramirez et al

Filing 193

ORDER ADOPTING REPORT AND RECOMMENDATION for 161 Report and Recommendations. For the foregoing reasons, the Court adopts the R&R in its entirety. (Dkt. 161). The Clerk of Court is directed to enter judgment against defendant Marshall in accord ance with the R&R. This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44345 (1962). (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 4/19/2018) Copies Mailed By Chambers (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RENZER BELL,
Plaintiff,

13-cv-7916 (PKC)(HBP)

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ORDER ADOPTING REPORT
AND RECOMMENDATION

KEVIN MARSHALL,
Defendant.
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CASTEL, U.S.D.J.

Plaintiff Renzer Bell, proceeding pro se, moved to compel defendant Kevin
Marshall, previously represented by counsel but now also proceeding pro se, to respond to
discovery requests or, in the alternative, for default judgment against Marshall based upon his
failure to respond to such requests. (Dkt. 128). Bell pointed to seven sets of interrogatories and
one set of document requests to which Marshall has failed to reply as a basis for relief. (Id.).
Magistrate Judge Henry Pitman, to whom this case is assigned for general pretrial purposes,
issued a Report and Recommendation (the “R&R”) on September 20, 2017, in which he
recommended that this Court enter default judgment against Marshall. (Dkts. 3, 161).
The R&R advised the parties that “FAILURE TO OBJECT WITHIN
FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL
PRECLUDE APPELLATE REVIEW,” citing 28 U.S.C. § 636 and Rule 72, Fed. R. Civ. P.
(R&R at 6) (emphasis in original). It further directed that any requests for an extension of the
time to file objections should be sent to this Court. (Id.). Following Marshall’s request for a
180-day extension to object to the R&R (Dkt. 168), the Court, on November 28, 2017, granted a
thirty-day extension, over twice as long as the stated period for objections (Dkt. 181). The Court
advised in that Order that failure to file objections on or before December 28, 2017 would
Mailed to Renzer Bell and Kevin Marshall 4/19/18

constitute a waiver of any objections. (Dkt. 181). On December 26, 2017, the Court received a
request from Marshall for an additional sixty-day extension. (Dkt. 186). The Court denied this
request, citing its earlier, generous extension of time. (Dkt. 188). On March 1, 2018, nearly two
months after the Court’s Order denying an extension, Marshall filed a document laying out his
objections to the R&R. (Dkt. 189). Marshall’s filing includes his general and specific objections
to interrogatories and discovery requests made by Bell, as well as responses to certain discovery
requests “[i]n an effort to come in [c]ompliance with” those obligations. (Id. at 2). Additionally,
it contains further explanation regarding his failure to appear at a June 2017 conference before
Magistrate Judge Pitman. (Id. at 12).
In reviewing an R&R, a district court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
In the event that a party timely files objections to a magistrate judge’s recommendations, district
courts conduct a de novo review of those matters to which a party filed an objection. Id.
This Court has, in the exercise of discretion and the interests of justice, afforded
Marshall a de novo review, albeit one unguided by specific objections. For the following
reasons, the Court concludes that the R&R is well reasoned, and well grounded in fact and law.
The R&R reviews the standard for imposing the sanction of default judgment
against a party that fails to respond to interrogatories or document requests pursuant to Rule 37,
Fed. R. Civ. P. (R&R at 3). Applying the factors that a court in this Circuit properly considers
when considering Rule 37 sanctions, see Funk v. Belneftekhim, 861 F.3d 354, 366 (2d Cir. 2017)
(quoting S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010)), the
R&R concluded that such factors weighed in favor of an entry of default judgment. Specifically,
Magistrate Judge Pitman reasoned that Marshall’s repeated failure to respond to discovery

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requests without explanation demonstrated his willful non-compliance with his discovery
obligations. (R&R at 4–5). Magistrate Judge Pitman further noted that Marshall remained noncompliant for over a year, which is substantially longer than periods of non-compliance held to
justify dispositive sanctions in this Circuit. (Id.). The R&R further concluded that it was
unlikely that lesser sanctions would be efficacious based on Marshall’s “cavalier disregard for
the Court’s Orders,” and that the instant motion brought by Bell, expressly seeking default
judgment against Marshall, provided adequate notice to Marshall of its consequences. (Id.).
CONCLUSION
For the foregoing reasons, the Court adopts the R&R in its entirety. (Dkt. 161).
The Clerk of Court is directed to enter judgment against defendant Marshall in accordance with
the R&R.
This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Order would not be taken in good faith and in forma pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 443–45 (1962).

SO ORDERED.

Dated: New York, New York
April 19, 2018

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