Leibovitz v. Ferrara et al

Filing 172

REPORT AND RECOMMENDATION re: 27 30/60 Days Amended Complaint, filed by Etan Leibovitz; 165 MOTION for Sanctions for Failure to Comply with Court Orders filed by Salvatore Rapglia, Nicole Tusa, Daley. The plaintiff has willful ly violated my discovery orders, and over a period of months he has given no indication of a willingness to comply. No sanction short of dismissal would be appropriate in these circumstances, and the plaintiff was warned twice that failure to comply would lead to a terminating sanction. For these reasons, I recommend that the State Defendant's motion (Docket no. 165) be granted and the remaining claims be dismissed. Pursuant to 28 U.S.C. § 636 (b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objection shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of t he Honorable Ronnie Abrams, Room 2203, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 4/20/2017.) (Signed by Magistrate Judge James C. Francis on 4/6/2017) Copies Transmitted this Date By Chambers. (anc)

Background
The plaintiff’s remaining claims encompass allegations that
Officer Rapaglia used excessive force and committed state law
assault and battery against him in the course of removing him from
the courtroom during sentencing and that Officers Daley and Tusa
failed to intervene to prevent the violation of the plaintiff’s
rights by Officer Rapaglia.
Following a scheduling conference on August 22, 2016, I issued
a case management order requiring interrogatories and document
requests to be served by September 21, 2016, and responded to by
October 21, 2016.

(Order dated Aug. 22, 2016, ¶ 8(a)-(b)).

In

addition, at the conference, Mr. Leibovitz indicated that he would
promptly provide counsel for the State Defendants with executed
HIPAA-compliant authorizations for the release of information from
his health care providers.

(Declaration of Angel M. Guardiola II

dated Feb. 13, 2017 (“Guardiola Decl.”), ¶ 4).
On September 20, 2016, counsel for the State Defendants
contacted the plaintiff by email to ask that he return the executed
medical releases, and Mr. Leibovitz replied that he was “working
on” them.

(Guardiola Decl., ¶ 7; Email string dated Sept. 20,

2016, attached as Exh. F to Guadiola Decl.).

The next day, the

State Defendants served the plaintiff with interrogatories and
document requests and included an additional copy of the requested
2

HIPAA authorization.

(Guardiola Decl., ¶ 8; State Defendants’

First Set of Interrogatories and Document Requests (“Def. Disc.
Req.”) and Authorization for Release of Health Information Pursuant
to HIPAA Form, attached as Exh. G to Guardiola Decl.).
Mr. Leibovitz never produced the HIPAA authorization, nor did
he

respond

to

the

interrogatories

(Guardiola Decl., ¶¶ 11-14).

and

document

requests.

After having been alerted to the

plaintiff’s breach of his discovery obligations, I issued two
orders on November 15, 2016.

In a memorandum endorsement on an

October 31, 2016 letter from counsel for the State Defendants, I
directed

the

plaintiff

interrogatories

and

to

provide

document

complete

requests

by

responses

November

30,

to

the

2016.

(Memorandum Endorsement dated Nov. 15, 2016 (Docket no. 142)).
Similarly,

I

endorsed

a

letter

from

counsel

for

the

State

Defendants dated September 30, 2016, stating in pertinent part,
“Plaintiff shall provide the requested authorizations no later than
November 30, 2016, failing which he will be subject to sanctions
that may include dismissal of his claims.” (Memorandum Endorsement
dated Nov. 15, 2016 (Docket no. 144)).
On December 20, 2016, counsel for the State Defendants advised
me that the plaintiff had failed to comply with my orders. (Letter
of Angel M. Guardiola II dated Dec. 20, 2016).

The next day I

endorsed that letter with the following directive: “Plaintiff shall
3

fully comply with my November 15, 2016 orders by December 30, 2016.
Should

he

fail

to

do

so,

defendants

may

promptly

sanctions, including dismissal of the complaint.”
Endorsement dated Dec. 21, 2017).
comply.

move

for

(Memorandum

Again, Mr. Leibovitz did not

The State Defendants then filed this motion.

Discussion
Where a party fails to obey a discovery order, the court may
(1) direct that matters in the litigation be taken as established
by the prevailing party, (2) prohibit the sanctioned party from
supporting or opposing claims or defenses or from introducing
evidence, (3) strike pleadings in whole or in part, (4) stay
further proceedings until the order is obeyed, (5) enter judgment
against the disobedient party, or (6) require the disobedient party
or her attorney to pay the reasonable expenses caused by the
failure.

Fed. R. Civ. P. 37(b)(2)(A), (C); see also Doe v. Delta

Airlines Inc., __ F. App’x __, __, 2016 WL 6989793, at *2 (2d Cir.
2016); Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d
Cir.

2009)

(noting

that

party’s

failure

to

comply

with

court-ordered discovery may result in terminating sanction); Daval
Steel Products, a Division of Francosteel Corp. v. M/V Fakredine,
951 F.2d 1357, 1365 (2d Cir. 1991) (“When a party seeks to
frustrate [discovery] by disobeying discovery orders, thereby
preventing disclosure of facts essential to an adjudication on the
4

merits, severe sanctions are appropriate.”).
Discovery sanctions serve a three-fold purpose: (1) to ensure
that a party will not benefit from its failure to comply, (2) to
obtain compliance with the court’s orders, and (3) to deter
noncompliance, both in the particular case and in litigation in
general.

Southern New England Telephone Co. v. Global NAPs Inc.,

624 F.3d 123, 149 (2d Cir. 2010); Update Art, Inc. v. Modiin
Publishing, Ltd., 843 F.2d 67, 71 (2d Cir. 1988); Cine Forty-Second
Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d
1062, 1066 (2d Cir. 1979).

Harsh sanctions such as dismissal or

default are reserved for extreme situations.

See Agiwal, 555 F.3d

at 302; see also Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d
130, 140 (2d Cir. 2007) (noting that “the severity of sanction must
be commensurate with the non-compliance”); Royal Park Investments
SA/NV v. U.S. Bank National Association, __ F.R.D. __, __, 2016 WL
6705773, at *3 (S.D.N.Y. 2016).
When determining the appropriate sanction to impose under Rule
37, courts in this Circuit weigh several factors, including “(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.”

World Wide Polymers, Inc. v. Shinkong Synthetic
5

Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012) (alteration in
original) (quoting Agiwal, 555 F.3d at 302); accord Delta Airlines,
__ F. App’x at __, 2016 WL 6989793, at *2; Royal Park Investments,
__ F.R.D. at __, 2016 WL 6705773, at *3.
dispositive.

No one factor alone is

World Wide Polymers, 694 F.3d at 159 (“[T]hese

factors are not exclusive, and they need not each be resolved
against the [sanctioned] party” (quoting Southern New England
Telephone Co., 624 F.3d at 144)).
“‘[A]ll litigants, including pro ses, have an obligation to
comply with court orders,’ and failure to comply may result in
sanctions, including dismissal with prejudice.”

Agiwal, 555 F.3d

at 302 (alteration in original) (citation omitted) (quoting Minotti
v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990)); accord Moore v.
Caine, No. 15 CV 2062, 2016 WL 4081079, at *2 (E.D.N.Y. June 29,
2016). Pro se litigants “are not immune to dismissal as a sanction
for noncompliance with discovery orders,” Agiwal, 555 F.3d at 302,
and terminating sanctions may be appropriate “so long as a warning
has been given that non-compliance can result in dismissal,”
Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994);
accord Agiwal, 555 F.3d at 302; Moore, 2016 WL 4081079, at *2;
Watkins v. Matarazzo, No. 13 Civ. 2477, 2016 WL 3351079, at *2
(S.D.N.Y. June 14, 2016).
Here, notwithstanding the “special solicitude” accorded pro se
6

litigants, Triestman v. Federal Bureau of Prisons, 470 F.3d 471,
475 (2d Cir. 2006), each of the relevant factors supports dismissal
of the complaint.
A. Willfulness
Mr. Leibovitz’s failure to comply with my orders is plainly
willful.

Executing a HIPAA authorization is hardly onerous, and

the plaintiff agreed during the initial pretrial conference in
August 2016 to do so as requested.

When counsel for the State

Defendants attempted to discuss the outstanding authorizations with
the plaintiff on September 27, 2016, he terminated the telephone
call.

(Guardiola Decl., ¶ 10).

When counsel for the State

Defendants reminded the plaintiff by email on December 13, 2016
that he was in default with respect to the authorizations, he
responded by leaving a voice mail blaming counsel for neglecting to
return his calls.

(Guardiola Decl., ¶ 19).

On December 29, 2016,

the plaintiff had a telephone conference with counsel for the State
Defendants to discuss outstanding discovery issues, but he did not
explain why he had failed to return the HIPAA authorizations.
(Guardiola Decl., ¶ 25).

Finally, on February 8, 2017, the

plaintiff left a voice mail for counsel for the State Defendants,
stating that he refused to provide any HIPAA authorizations because
he had previously provided them to counsel for a different entity
(the City of New York) in a different action.
7

(Guardiola Decl., ¶

29).
Similarly, Mr. Leibovitz willfully ignored my order that he
respond to the State Defendants’ interrogatories and document
demands.

At first, on November 30, 2016, the plaintiff merely

indicated that he needed additional time to comply.

(Guardiola

Decl., ¶ 17; Email of Etan Leibovitz dated Nov. 30, 2016, attached
as

Exh.

J

to

Guardiola

Decl.).

Then,

as

with

the

HIPAA

authorizations, he said he was not producing discovery responses
because counsel failed to return his phone calls.
Decl., ¶ 19).

(Guardiola

On December 29, 2016, Mr. Leibovitz came up with a

new excuse: he stated he would provide discovery responses only if
he could print and copy them at the office of counsel for the State
Defendants. (Guardiola Decl., ¶ 25). He reiterated this demand on
January 17, 2017, stating that defense counsel’s “job is to invite
[pro se parties] over” and “do the work and scan it for them.”
(Guardiola Decl., ¶ 27).
This pattern of conduct is clear evidence of Mr. Leibovitz’s
intention not to comply with the Court’s orders or his discovery
obligations.
B. Efficacy of Lesser Sanctions
A court should seek to impose the least harsh sanction that
will remedy the discovery violation and deter such conduct in the
future.

See Verna v. U.S. Bank National Association, No. 15-CV8

1127, 2016 WL 5107115, at *3 (N.D.N.Y. Sept. 20, 2016); Grammar v.
Sharinn & Lipshie, P.C., No. 14 Civ. 6774, 2016 WL 525478, at *3
(S.D.N.Y. Feb. 8, 2016); Hawley v. Mphasis Corp., 302 F.R.D. 37, 46
(S.D.N.Y. 2014).

Severe sanctions such as dismissal are to be

applied sparingly, where no other sanction will suffice.
Agiwal, 555 F.3d at 302.

See

Here, there is no alternative sanction

that has any likelihood of overcoming the plaintiff’s obstinacy.
If the discovery sought went only to the plaintiff’s damages, it
might be sufficient to preclude him from presenting evidence on
that issue.

However, the interrogatories and document demands are

broader, and seek information relating to liability as well.

For

example, the State Defendants sought documents concerning the
paragraphs of the Second Amended Complaint that describe incident
of

which

the

plaintiff

complains

(Def.

Disc.

Req.

no.

14);

documents concerning the location of the incident (Def. Disc. Req.
no.

15);

documents

prepared

by

the

plaintiff

concerning

the

incident (Def. Disc. Req. no. 16); and communications by the
plaintiff or others concerning the incident (Def. Disc. Req. nos.
18, 20, 24).

Accordingly, no sanction short of dismissal would

prevent prejudice to the State Defendants as a result of the
plaintiff’s refusal to cooperate in discovery.
C. Duration of Non-Compliance
It is now over four months since the deadline for compliance
9

with my November 15, 2016 orders passed, and over three months
beyond the deadline set by my December 21, 2016 order.

Not only is

this a sufficiently lengthy period of non-compliance to warrant
sanctions, see Embuscado v. DC Comics, 347 F. App’x 700, 701 (2d
Cir.

2009)

(affirming

dismissal

after

three

months

of

non-

compliance with discovery order); Georgiadis v. First Boston Corp.,
167 F.R.D. 24, 25 (S.D.N.Y. 1996) (dismissing complaint after four
months

of

non-compliance

with

order),

but

there

is

also

no

indication that the plaintiff ever intends to comply.
D. Notice
In both of the orders at issue, I explicitly warned the
plaintiff that the consequences of non-compliance could include
sanctions, including dismissal of the complaint.
Conclusion
The plaintiff has willfully violated my discovery orders, and
over a period of months he has given no indication of a willingness
to comply.

No sanction short of dismissal would be appropriate in

these circumstances, and the plaintiff was warned twice that
failure to comply would lead to a terminating sanction.

For these

reasons, I recommend that the State Defendant’s motion (Docket no.
165) be granted and the remaining claims be dismissed. Pursuant to
28 U.S.C. § 636 (b)(1) and Rules 72, 6(a), and 6(d) of the Federal
Rules of Civil Procedure, the parties shall have fourteen (14) days
10