Leibovitz v. Ferrara et al
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION re: 165 MOTION for Sanctions for Failure to Comply with Court Orders. filed by Salvatore Rapglia, Nicole Tusa, Daley. The State Defendants' motion for sanctions is granted, and the claims against them are dismissed. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 165 and to close this case. SO ORDERED. (Signed by Judge Ronnie Abrams on 8/10/17) (yv)
ELECTRO NI CALLY FILED
DATE FILED: 8/10/2017
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ET AN LEIBOVITZ,
No. 14-cv-3297 (RA)
OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION
THE CITY OF NEW YORK, et al.,
RONNIE ABRAMS, United States District Judge:
On April 6, 2017, Magistrate Judge Francis issued a Report and Recommendation
("Report") recommending that the State Defendants' motion for sanctions pursuant to Federal Rule
of Civil Procedure 37(b)(2)(A) be granted, and the claims against them dismissed due to Plaintiff
Etan Leibovitz's failure to comply with multiple discovery orders.
Dkt. No. 172.
recognizing both the special solicitude due pro se litigants and that a sanction as severe as dismissal
must only be imposed sparingly, this Court nonetheless adopts the Report in its entirety.
As noted in the Report, on November 15, 2016, Plaintiff was warned that failure to provide
HIPAA-complaint authorizations by November 30, 2016-which he had agreed to produce
promptly three months earlier-would make him "subject to sanctions that may include dismissal
of his claims." Dkt. No. 144. By separate order, also dated November 15, 2016, Judge Francis
further directed that by "[b ]y November 30, 2016, [P]laintiff shall provide complete responses to
the interrogatories and document requests," which had been due October 21, 2016. Dkt. No. 142.
On December 21, 2017, Mr. Leibovitz had still failed to comply with his discovery obligations,
and Judge Francis ordered that "Plaintiff shall fully comply with my November 15, 2016 discovery
orders by December 30, 2016. Should he fail to do so, [D]efendants may promptly move for
sanctions, including dismissal of the complaint." Dkt. No. 152. Again, Mr. Leibovitz failed to
comply. On February 13, 2017, Defendants moved for sanctions, Dkt. No. 165, and the next day
Judge Francis set a briefing schedule, informing Plaintiff that he would have until February 21,
2017, to answer the motion, Dkt. No. 168. Mr. Leibovitz did not respond to the motion for
sanctions, although on February 15, 201 7, he did make a submission addressing several matters
irrelevant to his underlying claim or the sanctions motion. See Dkt. No. 170. On April 6, 2017,
Judge Francis issued the Report. In it, Plaintiff was advised that "the parties shall have fourteen
(14) days to file written objections to this Report and Recommendation." Dkt. No. 172.
On April 20, 2017, Plaintiff submitted a letter to this Court "to give ... notice that [he]
object[s] to Mr. Francis' Report and Recommendation and that [he] plan[s] to submit [his]
objections." Dkt. No. 174. On May 19, 2017, forty-three days after Judge Francis issued his
Report, Plaintiff submitted a letter stating that it was his "plan" to submit "an extensive letter
addressing the State Defendants' Motion for Sanctions ... "and that he "plan[s] to have the said
letter filed by next week." Dkt. No. 176. On July 17, 2017, the Court ordered that any written
submission that Plaintiff would like the Court to consider before ruling on the Report must be filed
by July 31, 2017, and that he must explain what excusable neglect, if any, caused his failure to
respond in a timely manner or request an extension prior to the deadline for objections. Dkt. No.
177. On July 31, 2017, the Court received a letter and declaration from Plaintiff. Dkt. Nos. 178,
179. In it, he claims that there is "excusable neglect" for failing to request an extension prior to
the original deadline because
since January of 2017, [he has] been studying for the LSAT,
scheduled to take the exam on September 161h, 2017, and studying
C programming in order to rebuild [his] trading algorithm, working
with [his] Appellate Attorney with regards to [his] direct appeal
pertaining to [his] first arrest, and most importantly allowing the
State's narrative to play out.
Leibovitz Deel., Dkt. No. 179, ii 35. Defendants submitted a responsive letter on August 8, 2017. 1
Pursuant to Federal Rule Civil of Procedure 6(b)(l), Plaintiffs objections should be
deemed waived unless his failure to timely respond to the Report or seek an extension by April 20,
2017-the final day of the fourteen-day period for filing such responses pursuant to 28 U.S.C.
§ 636(b )(1) and Federal Rule of Civil Procedure 72-was the result of "excusable neglect." See,
e.g., Knox v. Palestine Liberation Org., 229 F.R.D. 65, 68 (S.D.N.Y. 2005). The determination of
what constitutes excusable neglect "is at bottom an equitable one, taking account of all relevant
circumstances," Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395
( 1993 ), including: "(1) the danger of prejudice to the non-moving party, (2) the length of delay
and impact on judicial proceedings, (3) the reason for the delay, including whether it was within
the reasonable control of the moving party, and (4) whether the moving party acted in good faith,"
Williams v. KFC Nat. Mgmt. Co., 391 F.3d 411, 415 (2d Cir. 2004).
The Second Circuit has
emphasized that "it is the third factor-the reason for the delay-that predominates, and the other
three are significant only in close cases." Williams, 391 F.3d at 415-16.
The essence of Plaintiffs purported reason for the delay is that he was busy. He asserts
that he has been studying programing as well as for the LSAT exam, and pursuing an appeal in
another case. See Leibovitz Deel., Dkt. No. 179, ii 35. None of these excuses however, explains
why he could not even have submitted a request for an extension of time, as he has done many
times in the past. See Dkt. Nos. 11, 45 (citing the Court's Special Rules & Practices in Civil Pro
Se Cases), 51, 52, 60, 82, 87, 89 (seeking an enlargement of time to file written objections to a
Mr. Leibovtiz called the Court on August 8, 2017, to notify it of his intention to submit a reply at some
future unspecified date. "This Court declines to consider [Plaintiffs proposed] reply memorandum given that Fed. R.
Civ. P. 72(b)(2) authorizes only objections and a response, not a reply, to a magistrate judge's report." Mordukhaev
v. Daus, No. 09-CV-5149 (SHS), 2010 WL 3792191, at *In.I (S.D.N.Y. Sept. 28, 2010), a.ffd, 457 F. App'x 16 (2d
Report and Recommendation), 91, 93, 103, 112, 117. Tellingly, Mr. Leibovitz does not claim that
there were any circumstances outside of his control or that he did not understand the Court orders.
"Nor does pro se status excuse a party from meeting deadlines imposed by the Court to file
opposition." Martinez v. Ravikumar, 536 F. Supp. 2d 369, 370 (S.D.N.Y. 2008). Plaintiff has thus
not shown that the reason he filed his objections more than three months after the deadline was
due to excusable neglect. See, e.g., Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d 248,
251 (2d Cir. 1997) ("Counsel's failure to read and obey an unambiguous court rule ... was not
excusable. And the fact that counsel was preoccupied with his bid for public office does not alter
"To accept those portions of the report to which no timely objection has been made, 'a
district court need only satisfy itself that there is no clear error on the face of the record."' Hunter
v. Lee, No. 13-CV-5880 (PAE), 2016 WL 5942311, at *1 (S.D.N.Y. Oct. 11, 2016) (quoting King
v. Greiner, No. 02-CV-5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009)). "[W]hen
the objections ... make only conclusory statements, the Court should [also] review the report for
clear error." Brown v. Colvin, 73 F.Supp.3d 193, 197 (S.D.N.Y. 2014).
Finding no clear error, the Court adopts Judge Francis's recommendation in its entirety.
The Report rightly recognizes both the special solicitude accorded to pro se litigants, and that
dismissal is a severe sanction that must be applied sparingly, but nonetheless finds this sanction
appropriate after a careful consideration of the relevant factors. Report, Dkt. No. 172, at 5-10.
Judge Francis concluded that "[P]laintiff 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." Id. at 10. The finding that Plaintiff acted
willfully in failing to comply with the Court's orders is well supported by the record. Id. at 7-8;
see Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) ("[D]ismissal with
prejudice is a harsh remedy to be used only in extreme situations, and then only when a court finds
willfulness, bad faith, or any fault by the non-compliant litigant.") (internal quotation marks
omitted). 2 Accordingly, the State Defendants' motion for sanctions is granted, and the claims
against them are dismissed.
The Clerk of Court is respectfully directed to terminate the motion pending at docket
number 165 and to close this case.
August 10, 2017
New York, New York
Ron eAb ms
Unit d States District Judge
2 Even ifthe Court were to consider Plaintiffs untimely objections, it would not change the result. Plaintiffs
argument that defense counsel are to blame for his failure to comply with his discovery obligations because of their
refusal to allow him to "use the New York State Attorney General's Office to scan [his] documents" is meritless. See
Leibovitz Deel., Dkt. No. 179, iii! 22-23. He made no application to the Court claiming to have any logistical or
financial impediments. And at least in the case of his failure to provide executed HIP AA-compliant authorizations,
not only was that obligation far from onerous but counsel "sent Plaintiff six authorization forms along with three
business return envelops." Guardiola Deel., Dkt. No. 166, ii 3. Moreover, Leibovitz's contention that Judge Francis's
failure to address whether he "can knowingly submit and file false documents or ones that contain 'alternative facts,"'
id. ii 27, prevented him from filing objections is nothing short of frivolous. Federal Rule of Civil Procedure 1 l(b)
answers this question directly. Nor does the fact that Judge Francis "relied on only one party's document, Mr.
Guardiola's Declaration, in order to render his decision," id. ii 30, raise any concerns given that it was Plaintiff who
chose not to file an opposition to Defendants' motion for sanctions.
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