Shim-Larkin v. City of New York
MEMORANDUM & ORDER re: 72 Objection (non-motion) filed by Heena Shim-Larkin. For the foregoing reasons, Plaintiff's objections to the Magistrate Judge's order are denied. A copy of this Order will be mailed to the pro se Plaintiff. SO ORDERED. (Signed by Judge Alison J. Nathan on 10/25/2017) (anc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
City of New York,
ALISON J. NATHAN, District Judge:
In this employment discrimination action, Heena Shim-Larkin, a pro se plaintiff
proceeding informa pauperis, objects to an order of the Magistrate Judge denying her motion to
compel disclosure against the defendant, the City of New York. For the reasons explained
below, her objections are denied.
Plaintiff Heena Shim-Larkin, proceeding prose and in forma pauperis, filed suit against
the City of New York in August 2016 alleging employment discrimination under Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, New York State Human
Rights Law, and New York City Human Rights Law. See Complaint, Dkt. No. 2; Amended
Complaint, Dkt. No. 30. On November 23, 2016, the Court referred the case to Magistrate Judge
Kevin Nathaniel Fox for general pretrial services, including scheduling, discovery,
nondispositive pretrial motions, and settlement. Dkt. No. 22.
In February 2017, Plaintiff received the City's initial disclosures required under Federal
Rule of Civil Procedure 26. On February 27, 2017, Plaintiff filed a letter addressed to Magistrate
Judge Fox stating that the Defendant had provided insufficient information in its initial
disclosures. Letter, Dkt. No. 45. Specifically, Ms. Shim-Larkin stated that the Defendant had
listed two individuals, Martin Kravitz and Miguel Morel, as possibly having pertinent
information, but had failed to provide any contact information for the two men and instead stated
that they "should be contacted only through Defendant's counsel." Id. at 1. Plaintiff stated that
because she was a prose litigant rather than an attorney, she could "seek information directly
from Kravitz and Morel, even if they are represented by a lawyer." Id.
The Magistrate Judge held a telephone conference on March 9, 2017 to resolve the
disclosure dispute. See Transcript, Dkt. No. 51. During the conference, Magistrate Judge Fox
ordered that the City determine if Miguel Morel was a current employee of the City. Id. at 11. If
the City determined that he was not, the City was ordered to provide the Plaintiff with Morel's
home address and telephone number. Id. If the City determined that Morel was an employee,
Ms. Shim-Larkin was ordered to contact him, along with Martin Kravitz, 1 only through the
City's counsel at a phone number previously given to Plaintiff. Id.
On March 17, 2017, Plaintiff filed a motion to compel disclosure and a supporting
memorandum of law and declaration. See Mot. to Compel, Dkt. No. 49; Memo. in Support of
Mot. to Compel, Dkt. No. 49; Declaration in Support of Mot. to Compel ("Declaration"), Dkt.
No. 50. Ms. Shim-Larkin stated that the Defendant's amended initial disclosures were
insufficient because they did not provide a phone number or proper business address for Martin
Kravitz and instead had provided only contact information for the City's counsel. See
9, 12. On May 18, 2017, Magistrate Judge Fox denied Plaintiff's motion to
compel. Memorandum and Order, Dkt. No. 70. Magistrate Judge Fox concluded that Plaintiff
had failed to follow the proper pre-motion procedure under Local Civil Rule 37.2 but excused
The parties did not dispute that Martin Kravitz was an employee of the City.
the error in the interest of efficient resolution of the continued dispute over the City's
disclosures. Id. at 5-7. He further concluded that the City had provided information consistent
with his direction during the March 9 telephone conference that Ms. Shim-Larkin "contact
Kravitz through the City's counsel, owing to his status as a City employee." Id. at 7-8.
On May 22, 2017, Plaintiff filed the objections to the Magistrate Judge's order that are
the subject of the present order. Objections to Magistrate Judge's Order ("Objections"), Dkt. No.
Under 28 U.S.C. § 636(b)(l)(A), the Court "may designate a magistrate judge to hear and
determine any pretrial matter pending before the court." The Court may reconsider the
magistrate judge's order "where it has been shown that the magistrate judge's order is clearly
erroneous or contrary to law." Id. "A magistrate judge's decision is 'clearly erroneous' only if
the district court is 'left with the definite and firm conviction that a mistake has been
committed."' Indergit v. Rite Aid Corp., No. 08-cv-9361 (JPO), 2016 WL 236248, at *1
(S.D.N.Y. Jan. 20, 2016) (citation omitted). "A decision is contrary to law if it 'fails to apply or
misapplies relevant statutes, case law, or rules of procedure."' Id. (citation omitted).
The Magistrate Judge's Order Was Not Clearly Erroneous or Contrary to Law
Construction of Motion to Compel
Plaintiff first contends that the Magistrate Judge erred by failing to construe her motion to
compel as an objection to his direction, during the March 9 telephone conference, that Plaintiff
contact Martin Kravitz only through City's counsel. Objections at 4. She argues that "even
though Plaintiff labeled her submission as [a] Motion to Compel," it was "clear that she
object[ed to the] Magistrate Judge's Order that she ha[d] to contact Kravitz through Defendant's
counsel only." Id.
"It is well established that the submissions of a pro se litigant must be construed liberally
and interpreted 'to raise the strongest arguments that they suggest."' Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d
Cir. 2006)). Liberal construction of prose submissions stems from "an obligation on the part of
the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of
important rights because of their lack of legal training." Id. at 475 (quoting Traguth v. Zuck, 710
F.2d 90, 95 (2d Cir. 1983)).
The Court concludes that Magistrate Judge Fox did not make a clearly erroneous finding
when he treated Ms. Shim-Larkin's motion as a motion to compel. Plaintiff styled her filing as a
motion to compel rather than as an objection to Magistrate Judge Fox's prior directions.
"[J]udges are not mind readers," Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.
1985), and a plaintiff's prose status "does not exempt a party from compliance with relevant
rules of procedural and substantive law," Traguth, 710 F.2d at 95 (citation omitted). Ms. ShimLarkin's motion cited to Federal Rule of Civil Procedure 37(a)(3)(A) and requested a sanction
pursuant to Federal Rule of Civil Procedure 37(c)(l) for Defendant's failure to provide adequate
disclosures: "that the Court to [sic] order Defendant not to use the two witnesses." Mot. to
Compel at 1. Plaintiff's motion thus appeared unambiguously to be a motion to compel, and
Magistrate Judge Fox did not clearly err by interpreting it as such.
Moreover, had Magistrate Judge Fox interpreted the Plaintiff's motion as objections to
his prior instructions rather than as a new motion, he would have in effect ignored Plaintiff's
request that he impose a sanction on the City pursuant to Rule 37. Ignoring a pro se plaintiff's
express request for a particular remedy cannot fairly be described as interpreting the litigant's
pleadings "to raise the strongest arguments that they suggest." Triestman, 470 F.3d at 474
(citation and emphasis omitted).
As a result, the Court concludes that the Magistrate Judge did not make a clearly
erroneous decision when he treated Plaintiffs motion as a motion to compel.
Ordering Plaintiff to Contact a City Employee Through City Counsel
Ms. Shim-Larkin also objects to the substance of Magistrate Judge Fox's order that
Martin Kravitz be contacted only through the City's counsel. Objections at 1. In support of her
objection, Plaintiff references several cases she had cited in her memorandum of law in support
of her motion to compel in which courts allowed pro se litigants to directly contact witnesses
rather than contacting them through counsel. See Objections at 3; Memo. in Support of Mot. to
Compel at 4-5 (citing Eldaghar v. City of N. Y Dep 't of Citywide Admin. Servs., No. 02-cv-9151
(KMW) (HBP), 2004 WL 421789, at* 1 (S.D.N.Y. Mar. 5, 2004), aff'd in part, rev 'din part,
No. 02-cv-9151(KMW),2004 WL 5923139 (S.D.N.Y. June 8, 2004); Trujillo v. Bd. of Educ.,
Nos. CIV 02-1146 JB/LFG, CIV 03-1185 JB/LFG, 2007 WL 2461630, at *11 (D.N.M. May 31,
2007); and In re Howes, 940 P.2d 159, 165 (N.M. 1997)).
In general, "counsel for a party may not directly contact those witnesses who are
employees of an opposing party and represented by an attorney." Cosgrove v. Fed. Home Loan
Bank of N. Y, Nos. 90-cv-6455 (SMS), 92-cv-4225 (SMS), 1996 WL 164704, at *1 (S.D.N.Y.
Apr. 8, 1996); see also Katt v. N. Y C. Police Dep 't, No. 95-cv-8283 (LMM), 1997 WL 394593,
at *4 (S.D.N.Y. July 14, 1997). This rule is derived from the ethical rules governing attorney
conduct within a particular jurisdiction. See Trujillo, 2007 WL 2461630, at * 11 (citing N.M. R.
Profl Conduct R. 16-402)); Katt, 1997 WL 394593, at *4 (citing N.Y. Lawyer's C.P.R.
Disciplinary R. 7-104(A)(l)). As a result, courts have occasionally held that this rule is
inapplicable to a pro se party because she is not a lawyer bound by the rules of ethics for that
profession, and that the pro se litigant may therefore informally contact current or former
employees of the opposing party. Trujillo, 2007 WL 2461630, at *11; Eldaghar, 2004 WL
421789, at *1.
However, while Plaintiff is correct that some courts have allowed pro se parties to
informally contact the opposing party's employees, she has not cited - and the Court has not
found - any binding authority requiring courts to allow such contact. As a result, the Court does
not find that Magistrate Judge Fox's order requiring Plaintiff to contact a City employee through
City council was contrary to any established law. As a result, the Court concludes that the
Magistrate Judge did not make a decision contrary to law when he ordered Plaintiff to contact
Martin Kravitz through the City's counsel.
For the foregoing reasons, Plaintiffs objections to the Magistrate Judge's order are
A copy of this Order will be mailed to the pro se Plaintiff.
Dated: October __ , 2017
New York, New York
United States District Judge
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