Fu v. Consolidated Edison Company of New York, Inc.
Filing
54
OPINION AND ORDER re: 45 LETTER MOTION for Discovery dismissing the complaint because Plaintiff failed to appear for the court-ordered deposition scheduled for January 17, 2018 addressed to Judge Ronnie Abrams from Richard Levin dated January 17, 2018 filed by Consolidated Edison Company of New York, Inc. Accordingly, for all the foregoing reasons: (1) defendant's motion to dismiss is denied; (2) defendant's motion for monetary sanctions is granted; (3) defendant sh all submit contemporaneous time records and supporting documentation to recover reasonable attorney's fees and costs no later than thirty (30) days from the issuance of this Order and (4) absent an agreement between the parties, plaintiff is h ereby ORDERED to appear for her deposition at 4 Irving Place, New York, New York on Friday, September 28, 2018 at 10:00 a.m. Should the parties agree to an alternative date, that date shall be no later than thirty (30) days from the issuance of this Order. PLAINTIFF IS WARNED THAT AN UNJUSTIFIED FAILURE TO APPEAR FOR THIS DEPOSITION WILL RESULT IN FURTHER SANCTIONS, WHICH MAY INCLUDE THE DISMISSAL OF THE ACTION WITH PREJUDICE. (Signed by Magistrate Judge Henry B. Pitman on 9/13/2018) Copies Mailed By Chambers. (ne)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
ANNA FU,
Plaintiff,
16 Civ. 4017
-against-
(RA) (HBP)
OPINION
AND ORDER
CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC.,
Defendant.
-----------------------------------x
PITMAN, United States Magistrate Judge:
I.
Introduction
Plaintiff brings this action pursuant to Title VII of
the Civil Rights Act of 1964 ("CRA"), 42 U.S.C.
§§
2000e et .filill.,
and the Age Discrimination in Employment Act of 1967
U.S.C
§§
( "ADEA''), 29
621 et .filill., against her former employer, Consolidated
Edison Company of New York,
Inc.
( "ConEd"), alleging that she was
the victim of illegal discrimination and retaliation.
Defendant
has moved for sanctions against plaintiff for failing to appear
at her deposition on January 17, 2018 and failing to appear at a
discovery conference on February 27, 2018
(Letter from Richard A.
Levin, Esq. to the Honorable Ronnie Abrams, dated Jan. 17, 2018
(Docket Item
("D.I.")
45)
("Levin Jan.
17 Letter");
Letter from
Richard A. Levin, Esq. to the undersigned, dated Mar. 13, 2018
USDCSDNY
DOCUMENT
~- ELECTRONICALLY F'ILJ!D
DOC#:
DATE FILED:
(D. I. 53)
("Levin Mar. 13 Letter")).
For the reasons set forth
below, defendant's motion is granted in part and denied in part.
II.
Facts
Plaintiff was represented by counsel in this matter
until September 8, 2017.
Bryan J. An, Esq. represented plaintiff
until July 31, 2017 when she retained Matthew Brian Weinick, Esq.
(Stipulation and Order of Substitution of Counsel, dated July 31,
2017
(D.I. 28)).
However, on September 8, 2017, the Honorable
Ronnie Abrams, United States District Judge, granted Mr.
Weinick's motion to withdraw as plaintiff's counsel because of a
"breakdown of the attorney-client relationship"
Sept. 8, 2017
(Order, dated
(D.I. 35); see also Letter Motion to Withdraw,
dated Sept. 5, 2017
(D.I. 32)).
Since that time, plaintiff has
proceeded 2.£.Q se.
Plaintiff has sought to extend the discovery and
deposition deadlines approximately five times.
According to
defense counsel, he·has attempted to schedule plaintiff's deposition multiple times since June 2017, but plaintiff claimed to be
unavailable on the dates he proposed (Levin Mar. 13 Letter at 1)
On November 6, 2017, Judge Abrams extended the time to complete
depositions to January 19, 2018 at plaintiff's request
Order,
dated Nov.
6,
2017
(D.I.
42)).
(Endorsed
Defense counsel contends
that he agreed not to schedule plaintiff's deposition until she
2
had more time to retain new counsel (Levin Mar. 13 Letter at 2)
However, when defense counsel did not hear from plaintiff, he
emailed her on January 10, 2018 and proposed two dates for her
deposition -- January 17, 2018 or January 19, 2018 -- that would
comply with Judge Abrams' discovery schedule (Email from Richard
A. Levin, Esq. to plaintiff, dated Jan. 10, 2018
("Levin Jan. 10
Email"), annexed to Letter from plaintiff to Judge Abrams, dated
Jan. 14, 2018
("Pl. Jan. 14 Letter")
(D.I. 43) at 3).
Instead of
identifying a preferred date, plaintiff emailed defense counsel
two days later stating that she was still "in the process of
securing an attorney" and would agree to a date only after she
had obtained one (Email from plaintiff to Richard Levin, Esq.,
dated Jan. 12, 2018
("Pl. Jan. 12 Email"), annexed to Pl. Jan. 14
Letter (D.I. 43) at 3).
Defense counsel explained that the
deposition must proceed pursuant to Judge Abrams' scheduling
order and sent plaintiff a notice of deposition for January 17,
2018 at 10:00 a.m.
(Email from Richard A. Levin, Esq. to plain-
tiff, dated Jan. 12, 2018
("Levin Jan. 12 Email"), annexed to Pl.
Jan. 14 Letter (D.I. 43) at 2; Notice of Deposition, dated Jan.
11, 2018, annexed to Pl. Jan. 14 Letter (D. I. 43) at 5).
Upon receiving this notice of deposition, plaintiff
sent a letter to Judge Abrams on January 14, 2018, claiming that
defendant scheduled her deposition "without her consent" and
requested that Judge Abrams appoint her an attorney to accompany
3
her to the deposition
(Pl. Jan. 14 Letter) . 1
Judge Abrams denied
this request without prejudice on January 16, 2018 and specifically stated that "[p)laintiff's January 14, 2018 request for
counsel shall present no obstacle to the deposition scheduled for
January 17, 2018"
Order") at 2).
(Order, dated Jan. 16, 2018
(D.I. 44)
("Jan. 16
Plaintiff did not appear for her deposition on
January 17, 2018.
I then scheduled a discovery conference for February
27, 2018 at 10:00 a.m. to address plaintiff's failure to appear.
Plaintiff also did not appear on time for the scheduled conference.
Defense counsel and I waited until 10:35 a.m. and when
plaintiff still had not arrived,
I issued an Order requiring
plaintiff to show cause in writing why the complaint in this
matter should not be dismissed and/or monetary sanctions imposed
for plaintiff's failure to appear at her deposition and the
discovery conference (Order to Show Cause, dated Feb. 27, 2018
(D.I. 51) at 1).
I was later informed that plaintiff arrived for
the discovery conference at approximately 10:40 a.m.; however,
defense counsel had already left the courthouse.
Plaintiff maintains that she did not appear for her
deposition because defense counsel made "threats" against her and
"triggered an anxiety attack" that made her sick and that she was
1
Plaintiff did not send her January 14 Letter to defense
counsel.
However, she submitted it to the court's prose office
and it was docketed on January 16, 2018.
4
late to the discovery conference because she was stuck in traffic
(Letter from plaintiff to the undersigned, dated Mar. 8, 2018
(D.I. 52)
("Pl. Mar. 8 Letter") at 1).
She has, however,
submitted no medical evidence in support of her claim of illness.
Defendant moves to dismiss the complaint, or in the alternative,
for monetary sanctions pursuant to Fed.R.Civ.P. 37
(Levin Mar. 13
Letter).
III.
Analysis
A.
Rule 37
Rule 37(d) authorizes sanctions whenever "a party .
after being served with proper notice,
[their own] deposition."
[fails] to appear for
Fed.R.Civ. P. 37 (d) (1) (A) (i); see also
Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302
2009)
(2d Cir.
(Rule 37 sanctions authorized against prose litigants who
fail to attend their own depositions); Williams v. LaRock, 13-CV0582
(GTS/DEP), 2017 WL 4861492 at *2
(Report
&
(N.D.N.Y. Sept. 27, 2017)
Recommendation), adopted at, 2017 WL 4857582
Oct. 25, 2017)
(N.D.N.Y.
("Rule 37(d) permits the court to issue appropri-
ate sanctions based upon the failure of a party to appear for
deposition after being served with proper notice."); Dauphin v.
Chestnut Ridge Transp. Inc., 06 Civ. 2730
at *2
(S.D.N. Y. Dec. 28, 2009)
(Stein,
Recommendation of Dolinger, M. J.)
5
(SHS), 2009 WL 5103286
D.J.)
(adopting Report
&
(" [Rule 37] authorizes a range
of sanctions, including dismissal, that may be imposed on a party
for failing to attend a deposition
.").
"Rule 37(d) authorizes the same range of sanctions
offered in Rule 37(b) against a party for failing to attend his
or her deposition."
at *2
Williams v. LaRock, supra,
2017 WL 4861492
(internal quotation marks and citations omitted); accord In
re Bear Stearns Cos., Secs., Derivative, & Erisa Litig.,
F.R.D. 113,119 (S.D.N.Y. 2015)
(Sweet, D.J.)
308
(Rule 37(b), as
incorporated by reference in Rule 37(d), sets out sanctions for
failing to appear for a scheduled deposition).
Pursuant to Rule
37(b), the court is also authorized to impose sanctions against a
party who "fails to appear at a scheduling or other pre-trial
conference."
Mercedes v. Tito Transmission Corp., 15 Civ. 1170
(CM) (OF), 2017 WL 1274277 at *6 (S.D.N.Y. Apr. 5, 2017)
D.J.)
(adopting Report
&
(McMahon,
Recommendation of Freeman, M.J.); see
also Patino v. Avalon Bay Communities, Inc., CV 14-2376
(LOW) (AYS), 2016 WL 8677284 at *3 (E.D.N. Y. Jan.
8, 2016)
The factors relevant to the determination of the
appropriate sanction under Rule 37(b) include:
"(1) the willful-
ness 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."
Agiwal v. Mid Island Mortg. Corp., supra, 555 F.3d at 302-03
6
(quotation marks and citations omitted); accord Bhagwanani v.
Brown,
665 F. App'x 41,
42-23
(2d Cir. 2016)
(summary order);
Metro Found. Contractors v. Arch Ins. Co., 551 F. App'x 607,
(2d Cir. 2014)
609
(summary order).
"Because dismissal with prejudice is a particularly
'harsh remedy, '
. it should only be used when a court finds
'willfulness, bad faith,
party."
or any fault' by the non-compliant
Bhagwanani v. Brown, supra, 2016 WL 6561486 at *1
(citation omitted); see also Shcherbakovskiy v. Da Capo Al Fine,
Ltd.,
490 F.3d 130, 140
(2d Cir. 2007)
imposed absent "willfulness, bad faith,
(dismissal should not be
or any fault" on the part
of the party that failed to comply with its discovery obligations
(internal quotation marks and citations omitted)); West v.
Goodyear Tire & Rubber Co., 167 F.3d 776, 779
("[B]ecause dismissal is a drastic remedy,
(2d Cir. 1999)
it should be imposed
only in extreme circumstances, usually after consideration of
alternative,
less drastic sanctions."
(internal quotation marks
and citations omitted)); Metro. Opera Ass'n v. Local 100, Hotel
Emps. & Rest. Emps. Int'l Union, 212 F.R.D. 178, 219
2 00 3)
( Pres ka, D. J. )
(S.D.N.Y.
("In Rule 3 7 cases, intentional behavior,
actions taken in bad faith,
or grossly negligent behavior justify
severe disciplinary sanctions.").
The decision to impose sanctions "is committed to the
sound discretion of the district court and may not be reversed
7
absent an abuse of that discretion."
Luft v. Crown Publishers,
Inc., 906 F.2d 862, 865 (2d Cir. 1990), citing, inter alia, Nat'l
Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642
(1976)
(per curiam); see Doe v. Delta Airlines Inc., 672 F. App'x
48, 49 (2d Cir. 2016)
(summary order)
(a district court has broad
discretion in fashioning an appropriate sanction).
B. Application of
the Foregoing Principles
In considering the relevant factors set forth above,
I
find that the imposition of reasonable attorney's fees and costs
is the appropriate sanction here, rather than dismissal of the
action.
1.
Dismissal
While there is evidence that plaintiff's nonappearance
for her deposition was willful, the remaining three factors weigh
against dismissal.
First, the lesser sanction of requiring plaintiff to
reimburse defendant for the attorney's fees and costs it incurred
as a result of plaintiff's failure to appear for her deposition
and the February 27 discovery conference is sufficient to ensure
plaintiff's compliance with future discovery orders and will
adequately remedy any prejudice suffered by defendant.
Ocello v. White Marine,
See
Inc., 347 F. App'x 639, 641-42 (2d Cir.
8
2009)
(summary order)
(monetary sanctions short of dismissal can
be sufficient to compensate a party for substantial costs incurred by an opposing party's obstructive conduct during discovery); accord Ying Kuang v. Genzyme Genetics Corp., 11 Civ. 6346
(AJN), 2012 WL 13059497 at *9 (S.D.N.Y. Nov. 28, 2012)
(Nathan,
D. J.).
Second, plaintiff's duration of noncompliance spans a
little over a month.
Although plaintiff has repeatedly sought to
extend the discovery deadlines, defense counsel never objected to
these requests and they were granted by Judge Abrams.
This does
not constitute a long history of noncompliance sufficient to
warrant dismissal of the action.
1092
See Skates v. Shusda, 14-CV-
(TJM/DEP), 2017 WL 4863065 at *3
(N.D.N.Y. Sept. 27, 2017)
(Report & Recommendation), adopted at, 2017 WL 4863087
Oct. 26, 2017)
(N.D.N.Y.
(plaintiff's five-month delay after failing to
appear for two depositions warranted dismissal of the action);
Antonios A. Alevizopoulos & Assocs.,
Holdings, Inc.,
99 Civ. 9311
(S.D.N.Y. Nov. 8, 2000)
Inc. v. Comcast Int'l
(SAS), 2000 WL 1677984 at *2
(Scheindlin, D.J.)
(plaintiff's four-
month delay after failing to appear for two depositions warranted
dismissal of the action).
Third, while it appears plaintiff was advised by
defense counsel and the court that she was required to appear for
her deposition and the discovery conference, she was not warned
9
by the court that a failure to appear could result in the dismissal of her claims.
Generally, the harsh remedy of dismissal
is appropriate only after specific and repeated warnings that
noncompliance will result in the dismissal of the complaint.
Labib v. 1141 Realty LLC, 10 Civ. 8357
*9 (S.D.N.Y. Mar. 29, 2013)
See
(MHD), 2013 WL 1311002 at
(Dolinger, M.J.)
(dismissal of
plaintiff's complaint appropriate where defendants filed two
prior motions to dismiss based on plaintiff's nonappearance and
the court specifically informed plaintiff that his continued
noncompliance would result in a dismissal).
Given that dismissal of an action is "one of the
harshest sanctions at a trial court's disposal" and should be
"reserved for use only in the most extreme circumstances," I find
that plaintiff's conduct here does not warrant such a drastic
remedy.
251
U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248,
(2d Cir. 2004); see also Conklin v. Bowen, 14-CV-1098
(GLS/CFH), 2016 WL 4046911 at *3 (N.D.N.Y. Apr. 25, 2016)
&
Recommendation), adopted at, 2016 WL 4033200
2016)
(Report
(N.D.N.Y. July 27,
("A dismissal is a particularly harsh remedy, especially
when invoked against a prose plaintiff.").
2.
Monetary Sanctions
Although I find that dismissal is not warranted at this
time, plaintiff's conduct is by no means excusable.
10
Rule 37
permits a wide variety of other sanctions if a party fails to
appear for their deposition or a scheduled pre-trial conference.
See Fed.R.Civ.P. 37(b); Fed.R.Civ.P. 37(d); Williams v. LaRock,
supra, 2017 WL 4861492 at *2; Rodriguez v. Clark, 16-cv-390
(CSH), 2017 WL 2369367 at *3
(D. Conn. May 31, 2017).
"Where a
party fails to appear for a deposition, Rule 37(d) requires cost
shifting:
'the court must require the party failing [to appear]
to pay the reasonable expenses, including attorney's fees,
by that failure.'"
Erisa Litig., supra,
In re Bear Stearns Cos., Secs.,
caused
Derivative,
&
308 F.R.D. at 126, quoting Fed.R.Civ.P.
37 (d) (3); see also Rodriguez v. Clark, supra, 2017 WL 2369367 at
*3.
"Cost-shifting is excused only where the failure to appear
was substantially justified or other circumstances make an award
of expenses unjust."
&
In re Bear Stearns Cos., Secs., Derivative,
Erisa Litig., supra, 308 F.R.D. at 126 (internal quotation
marks and citations omitted); John Wiley & Sons,
Books, LLC, 298 F.R.D. 145, 148
M. J.).
(S.D.N.Y. 2014)
Inc. v. Book Dog
(Gorenstein,
Because I find that plaintiff's failure to appear for
either the deposition or the February 27 conference was not
substantially justified, plaintiff is liable for defendant's
attorney's fees and costs incurred in connection with both.
Conklin v. Bowen, supra, 2016 WL 4046911 at *3
See
(granting defen-
dant's request for monetary sanctions in the amount of expenses
incurred after prose plaintiff failed to appear for his deposi-
11
tion).
Plaintiff first argues that she should not be sanctioned because six days was "an unreasonable amount of time for
notice of deposition"
(Pl. Mar. 8 Letter at 1).
Pursuant to Rule
30(b) (1), a party who seeks to depose another party must give
them "reasonable notice."
Fed.R.Civ. P. 30 (b) (1).
"'Neither the
Federal Rules of Civil Procedure nor the Rules of this Court
require any specific minimum notice period; all that is required
is that the notice be reasonable under the circumstances.'"
Brissett v. Manhattan & Bronx Surface Transit Operating Auth.,
09-CV-874
(CBA) (LB), 2011 WL 1930682 at *2
2011), aff'd,
472 F. App'x 73
(E.D.N.Y. May 19,
(2d Cir. 2012)
quoting Davidson v. Dean, 204 F.R.D. 251, 256
(Marrero,
D.J.)
(adopting Report
&
(summary order),
(S.D.N.Y. 2011)
Recommendation of Pitman,
M.J.); accord JB Aviation, LLC v. R Aviation Charter Servs., LLC,
CV-14-5175
(DRH) (AKT), 2016 WL 4444794 at *3
(E.D.N.Y. Aug. 23,
2016) .
While six days is at the shorter end of the spectrum of
reasonable notice, the Second Circuit has held that even four
days' notice of deposition is not unreasonable as a matter of
law.
See F.A.A. v. Landy, 705 F.2d 624,
634
(2d Cir. 1983).
It
is also well settled that "the reasonableness of notice must be
determined in light of the facts and circumstances of the indi-
vidual case."
Davidson v. Dean, supra, 204 F.R.D. at 256; accord
12
JB Aviation, LLC v. R Aviation Charter Servs., LLC, supra, 2016
WL 4444794 at *3; Brissett v. Manhattan & Bronx Surface Transit
Operating Auth.,
supra, 2011 WL 1930682 at *2.
Considering the
procedural history of this action, defense counsel's notice of
deposition was clearly reasonable.
Defense counsel attempted to
schedule plaintiff's deposition for over seven months.
The
plaintiff's deposition was originally scheduled for September 6,
2017, however,
it was cancelled the day before due to Mr.
Weineck's request to be relieved as plaintiff's counsel.
Defense
counsel thereafter agreed to postpone plaintiff's deposition as
long as possible as a courtesy for her to retain new counsel.
After more than two months passed, defense counsel provided
plaintiff the choice of two dates prior to the deposition deadline of January 19, 2018 that had been ordered by Judge Abrams.
When plaintiff did not respond to defense counsel's request, he
provided her with a notice of deposition for January 17, 2018.
Given these facts,
it is difficult to conclude that
plaintiff was not provided with adequate notice.
Plaintiff was
well aware of the January 19, 2018 deposition deadline considering it was extended to that date at her request.
It is also
undisputed that plaintiff received the notice of deposition on
January 12, 2018 because she admitted this to Judge Abrams in her
written request for the appointment of counsel
Letter at 1).
Thus,
(Pl. Jan. 14
I find that defendant's notice of deposition
13
was reasonable.
Furthermore, even if I were to find defendant's notice
of deposition deficient, it is well established that any defect
in the notice of deposition does not excuse a witness' attendance
unless a timely objection is made.
Davidson v. Dean, supra, 204
F.R.D. at 256 (rejecting prose plaintiff's argument that he
should not be sanctioned for failing to appear for his deposition
because he only received notice eight days beforehand); accord
Kamps v. Fried, Frank, Harris, Shriver
115, 118-19 (S.D.N.Y. 2011)
&
Jacobson LLP, 274 F.R.D.
(Fox, M.J.); Cerami v. Robinson, 85
F.R.D. 371, 372 (S.D.N.Y. 1980)
Plaintiff's
(MacMahon, D.J.).
January 14 letter did not state any specific objections to the
date of her deposition or convey any scheduling conflicts or
other obstacles to her attending her deposition.
Plaintiff's
only gripe was that she wished to be appointed counsel.
Judge
Abrams explicitly ruled that plaintiff must attend her scheduled
deposition on January 17 (Jan. 16 Order at 2).
Moreover, plain-
tiff even admits that she made no attempts to contact defense
counsel to reschedule the deposition or to inform him that she
would not appear on January 17
(Pl. Mar. 8 Letter at 1).
It was
only after defense counsel contacted her twice on January 17 that
plaintiff called defense counsel at 11:49 a.m. to inform him she
would not be appearing -- almost two hours after the deposition
was scheduled to commence (Pl. Mar. 8 Letter at 1).
14
Plaintiff next argues that she should not be sanctioned
because defense counsel's "threats" in his January 12 email
triggered her to suffer an anxiety attack and caused her to be
too sick to attend her deposition (Pl. Mar. 8 Letter).
Plaintiff
grossly mischaracterizes the email exchange between herself and
defense counsel.
The email exchange reads in its entirety as
follows:
Ms. Fu, I need to schedule your deposition.
I can do
either Wednesday Jan. 17 or Friday Jan. 19.
Do you
have a preference? The deposition would be at 4 Irving
Place, starting at 10:00 a.m. and going all day (Levin
Jan. 10 Email) .
Mr. Levin, I am in the process of securing an attorney.
I will get back to you as soon as I have an attorney
(Pl. Jan. 12 Email).
Ms. Fu, You have been through several sets of attorneys, and you have been looking for another for several
months.
This cannot continue.
By order of the court
depositions must be completed next week.
Therefore,
attorney or not, I expect that you appear for the
deposition as scheduled on January 17.
If not, I will
have no alternative but to bring the matter to the
attention of Judge Abrams and ask that your case be
dismissed for failure to prosecute (Levin Jan. 12
Email).
Defense counsel did not threaten or respond inappropriately in any way to plaintiff.
He merely correctly informed her
that she was required to attend the January 17 deposition whether
she was represented by counsel or not,
few days later (see Jan. 16 Order).
just as Judge Abrams did a
Furthermore, as discussed
above, plaintiff never informed defense counsel that she was too
ill to attend the deposition and never submitted any evidence
15
from a physician to support this claim.
Thus, I find that plaintiff has offered no valid excuse
for her failure to attend her deposition.
Lastly, plaintiff maintains that she should not be
sanctioned because her failure to appear for the February 27
discovery conference was due to "unusually high traffic"
(Pl.
Mar. 8 Letter at 1).
Plain-
I similarly reject this argument.
tiff resides in New Hyde Park in Nassau County.
I take judicial
notice of the fact that there is frequent train service into
Manhattan and Brooklyn from New Hyde Park and other, nearby
stations.
Door-to-door travel time from New Hyde Park to the
courthouse by public transportation is no more than 75 minutes.
Rush hour traffic in the New York metropolitan area is notoriously terrible,
2
and, thus, driving into Manhattan during rush
hour is always a risky undertaking.
As an educated and long-time
New Yorker (plaintiff is an engineer and has worked for defendant
for more than 30 years), plaintiff should have either taken
public transportation, or left sufficiently early to arrive at
the courthouse on time.
While I understand that plaintiff is now
proceeding prose, "[a]ll litigants, including proses, have an
obligation to comply with court orders [and]
[w]hen they flout
that obligation they, like all litigants, must suffer the conse-
2
The Long Island Expressway, one of the major arteries from
Nassau County into Manhattan, has repeatedly been referred to in
popular culture as "the world's longest parking lot."
16
quences of their actions."
McDonald v. Head Criminal Court
Supervisor Officer, 850 F.2d 121, 124
(2d Cir. 1988).
Thus, I also find that plaintiff's failure to appear at
the February 27 discovery conference was not substantially
justified.
C.
Summary
Accordingly,
I find that an appropriate sanction is an
Order directing plaintiff to reimburse defendant for reasonable
attorney's fees and costs that it incurred as a result of plaintiff's failure to appear at her January 17 deposition and the
February 27 discovery conference.
However, defendants have not
submitted any contemporaneous time records or supporting documentation to enable me determine what those reasonable attorney's
fees and costs are.
Therefore, if defendant wishes to recover
those fees and costs, it must submit contemporaneous time records
and supporting documentation within 30 days of this Order.
See
Rodriguez v. Clark, supra, 2017 WL 2369367 at *6.
IV.
Conclusion
Accordingly, for all the foregoing reasons:
defendant's motion to dismiss is denied;
for monetary sanctions is granted;
(3)
(1)
(2) defendant's motion
defendant shall submit
contemporaneous time records and supporting documentation to
17
recover reasonable attorney's fees and costs no later than thirty
(30) days from the issuance of this Order and (4) absent an
agreement between the parties, plaintiff is hereby ORDERED to
appear for her deposition at 4 Irving Place, New York, New York
on Friday, September 28, 2018 at 10:00 a.m.
Should the parties
agree to an alternative date, that date shall be no later than
thirty (30) days from the issuance of this Order.
PLAINTIFF IS
WARNED THAT AN UNJUSTIFIED FAILURE TO APPEAR FOR THIS DEPOSITION
WILL RESULT IN FURTHER SANCTIONS, WHICH MAY INCLUDE THE DISMISSAL
OF THE ACTION WITH PREJUDICE.
Dated:
New York, New York
September 13, 2018
SO ORDERED
United States Magistrate Judge
Copy transmitted to:
Counsel for Defendant
Copy mailed to:
Anna Fu
161 Wilton Street
New Hyde Park, New York 11040
18
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