Vanceach v. National Railroad Passenger Corporation et al

Filing 71

OPINION AND ORDER: re: 62 MOTION for Sanctions filed by National Railroad Passenger Corporation, 61 MOTION for Sanctions Notice of Motion for Discovery Sanctions filed by National Railroad Passenger Corporation. For the reasons stat ed above, Amtrak's motion is GRANTED. The Court dismisses all ofVanceah's claims with prejudice. The Clerk of Court is respectfully directed to terminate the motions, Docs. 61 and 62, and to close the case. IT IS SO ORDERED. (Signed by Judge Edgardo Ramos on 8/01/2022) (ama) Transmission to Orders and Judgments Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JMARJAY VANCEAH,
Plaintiff,
OPINION & ORDER

– against –
NATIONAL RAILROAD PASSENGER

18 Civ. 9418 (ER)

CORPORATION d/b/a AMTRAK and
TIMOTHY DENTY,
Defendants.

Ramos, D.J.:
Marjay Vanceah brings this action alleging gender discrimination and retaliation against
Defendants National Railroad Passenger Corporation (“Amtrak”) and Timothy Dendy. 1 Before
the Court is Defendants’ motion for sanctions pursuant to Federal Rules of Civil Procedure
37(c)(1) and 28 U.S.C. § 1927. Defendants request that the Court sanction Vanceah and her
counsel, Rene Myatt, Esq. (“Counsel”), for repeated discovery abuses by dismissing Plaintiff’s
claims with prejudice and awarding fees and costs.
For the reasons set forth below, the motion to dismiss is GRANTED, but the Court will
not award fees.

1

Throughout the court documents Marjay Vanceah’s last name is spelled both correctly, as “Vanceah,” and
incorrectly, as “Vanceach.” She filed suit under the latter name. Additionally, Timothy “Dendy” was sued as
Timothy “Denty.” The Court will use the correct names, Vanceah and Dendy, throughout.

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I.

FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Giving Rise to the Complaint

Marjay Vanceah began working for Amtrak as a coach cleaner on August 21, 2017. Doc.
13 ¶ 1. She was initially placed on a six-month probationary period, after successful completion
of which she would become a full-fledged employee. Id. ¶ 21. Her boss was a carman and union
representative named Timothy Dendy. Id. ¶ 5. Vanceah and Dendy’s relationship is
complicated, but it is at least not disputed that they exchanged personal text messages over a
period of months, beginning while Vanceah was still in her probationary period, and had at least
one sexual encounter. Doc. 65-5; Doc. 34-3; Doc. 34-6; Doc. 1 ¶ 27. Dendy was in charge of
allocating employees overtime work, and assigned overtime to Vanceah, allegedly conditioned
upon her continuing this relationship with him. Doc. 1 ¶ 28. The encounters that made up this
relationship occurred both over text and in person. At some point in Mid-December, 2017,
Dendy sent Vanceah a picture of his penis via text message (the “Dendy photo”). Id. ¶ 30; Doc.
62 at 6. And at an unknown date during her probationary period, he traveled to her home in
Pennsylvania, where their sexual encounter occurred; Vanceah alleged in her initial complaint
that, while it was occurring, she “pleaded with [Dendy] to stop.” Doc. 1 ¶ 27. Dendy contends
that it was consensual. Doc. 48 at 1. When Vanceah eventually rebuffed Dendy, he allegedly
had her overtime hours cut completely. Doc. 1 ¶ 31.
On February 22, 2018, once Vanceah completed her probationary period, she alerted
Amtrak’s ethics hotline about this relationship with and allegedly retaliatory treatment by Dendy
(allegedly, she waited until this point in order to avoid further retaliation before she was a
permanent employee). Id. ¶ 32; Doc. 66 at 1; Doc. 65-2 at 4. She provided the ethics office with
58 pages of text messages that they exchanged in support of her complaint. Doc. 62 at 2.

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Amtrak investigated internally, and although it did not take any concrete disciplinary steps
against Dendy, it did solicit from Dendy screenshots taken from his own phone of the messages
sent between him and Vanceah. Defendants allege that the documents provided by Dendy paint
a different picture. For example, they provided messages sent from Vanceah to Dendy that she
withheld in her own submission, “making it appear as if he sent her unsolicited texts,” when in
reality, they had a longstanding, mutually flirtatious relationship. Id. Subsequently, Vanceah
registered a grievance with Shelton Gray, then a union representative, who did not officially file
it because it had not been notarized. Doc. 1 ¶ 34. She complained separately on March 12, 2018
to the Amtrak Police Department about the same incident, though this investigation was also
ultimately closed; the Department concluded her allegation of harassment could not be
substantiated based on the information she provided, as she claimed her phone had been lost and
thus that she could not provide further proof of the text messages. 2 Doc. 65-2 at 6. While it was
investigating, the Department found that Vanceah had admitted that she and Dendy “were
intimate with each other,” that she had called Dendy “babes” over text and asked him to buy her
underwear and perfume, and that they had engaged in “other mutual banter” in the messages as
well. Doc. 62 at 3 (citing Doc. 65-2).
B. Procedural Background
The procedural history of this case is long and complicated, and the Court presents just
those facts that are relevant for the instant motion for discovery sanctions. Vanceah originally
filed suit with the Equal Employment Opportunity Commission, and subsequently received a
right to sue letter on July 25, 2018. Doc. 1 ¶ 16. She filed her initial complaint with this Court
on October 15, 2018. Doc. 1. Vanceah filed two sets of initial disclosures on September 9 and

2

Vanceah has given conflicting accounts about whether the phone was lost or stolen, as discussed below. See, e.g.,
Doc. 32 at 11:17; Doc. 65-12 at 1.

3

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12, 2019, respectively. Doc. 62 at 3. Although she had previously given 58 pages to Amtrak’s
ethics office, the initial disclosure to the defendants contained only five pages of text messages,
and the second, supplemental disclosure added only her EEOC complaint. Doc. 62 at 3.
Vanceah stated in her second disclosure that these documents constituted all the relevant
materials in her possession. Doc. 65-4. 3
Vanceah initially responded to Amtrak’s first set of interrogatories and first set of
document requests on November 6, 2019 and November 23, 2019, respectively. Amtrak alleges
that her responses were deficient. In her November 6, 2019 response to the request to provide all
documents concerning the allegations in the complaint, and all documents reflecting her
complaints of discrimination and harassment, Vanceah told Amtrak to “see attached documents,”
but did not actually attach any documents. Doc. 62 at 4. When asked in that same set of
interrogatories to identify all mobile devices that Vanceah had used during the time of the
alleged incident, Vanceah objected and did not provide the requested information.
Vanceah’s November 23, 2019 responses to the first set of document requests were
similarly deficient. While Amtrak requested further documentation about the discrimination
claims, the complaint filed with the police, the Dendy photo, communications Vanceah had with
Dendy and other Amtrak employees, and all other relevant documents on which she intended to
rely, all she wrote was that she was “not in possession of any documents responsive to this
request” or that she had “previously produced” the relevant documentation, though she did not
actually provide the documents that were requested. Id. at 5; Doc. 65-7. When asked to identify
all mobile devices used during the relevant period, Vanceah again objected, contending that there
was “no cause or good faith basis to call for the production of all mobile devices, dates of use,

3

Vanceah argues in her opposition that Amtrak’s initial request for the remainder of text messages on her cell
phones was not specific enough and an attempt to humiliate her. Doc. 66 at 3–4.

4

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each device, unless someone is picking through the plaintiff’s life.” Doc. 66 at 5 (emphasis in
original). The documents Vanceah purportedly failed to produce included: documents relating
to complaints made to Amtrak’s HR Department, documents in support of Vanceah’s federal
complaint, all text messages relating to the allegation, the Dendy photo, and her mobile device
for forensic examination. Doc. 62 at 4–6.
Ultimately, Amtrak expressed their dissatisfaction with these responses to Vanceah’s
counsel in the first of their discovery deficiency letters, dated November 18, 2019. Doc. 62 at 6.
They stated, inter alia, that (1) the responses were unverified, (2) the documents cited were not
actually attached, and (3) she did not state any sufficient ground for objecting to identifying her
cell phone. Id. On April 30, 2020, five months later, Vanceah supplemented her answers with
further responses. However, she again failed to attach any text messages, even though she wrote
“[s]ee attached text messages.” Id. She did, however, affirmatively identify a single cell phone
as the one used to communicate with Dendy during the relevant time period. She then verified
the responses on May 1, 2020, in a document notarized by her counsel. Doc. 65-10.
Amtrak sent a second discovery deficiency letter on June 1, 2020 concerning Vanceah’s
supplemental replies. Doc. 62 at 6. They also asked her to confirm that she had searched for all
documents and to explain why she had only provided the five pages of text messages and to
explain if she had deleted any relevant information and, if so, why. Id. Vanceah thus further
supplemented her responses on June 14, 2020. In this supplemental response, she for the first
time represented that she had two phones, one for personal use and one for business use. She
claimed that her business phone had contained additional texts with Dendy, but that it had been
stolen and that the data was not backed up; that she had found no further messages between the
parties on her personal cell phone and that that phone was not backed up; and that there had been

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no text accompanying the Dendy photo. Doc. 62 at 6–7. As such, she stated that she had no
other documents regarding Dendy and had provided every relevant document in her possession
to the defendants. Id. Vanceah did produce texts between herself and Jennifer Montgomery,
who was the Amtrak employee responsible for actually assigning overtime shifts, regarding her
complaints about overtime and the retaliation. Doc. 62 at 7; Doc. 65-2 at 4.
Dendy was first deposed on June 15, 2020. In his deposition, he was shown a photo,
ostensibly the Dendy photo, that had not yet been turned over to Amtrak’s attorneys in
discovery. He denied that the penis in that photo was his, though he did not deny sending
Vanceah a photo of his genitals. Doc. 48 at 2. He also stated that he had sent the picture in
response to Vanceah sending him a picture “of her backside.” Doc. 67-9 at 70:7. Vanceah’s
attorney provided defendants with the Dendy photo itself through discovery for the first time on
June 23, 2020 via a file on Google Drive labeled “Picture of Denty’s Penis005597.pdf,” though it
had no accompanying metadata from which to determine when and from where it had been sent.
Doc. 62 at 7.
In the meantime, Vanceah moved on consent of all parties to extend the time to complete
discovery on June 26, 2020, and this motion was granted on June 29, 2020. Doc. 26. On July
10, 2020, Amtrak sent a third discovery deficiency letter. Doc. 62 at 7. Since Vanceah at this
point had alleged that only her business phone had been stolen, and it was still unclear how and
when the photo had been transmitted and to which phone, Amtrak sought to inspect Vanceah’s
other, personal phone. Id. Although she had not yet identified any texts with Dendy regarding
the photo, Vanceah called this a “fishing expedition” because the photo was not sent to her
personal phone. Doc. 66 at 9. They also asked her to provide the number for her “stolen”
business phone and asked whether she filed a police report regarding the theft. Doc. 65-14 at 1.

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Vanceah responded on July 29, 2020, calling the request to inspect her phone an assassination of
character, reiterating that she had provided all available documents, and refusing to give her
phone over to be inspected. Doc. 65-15 at 1. She also stated that there had been no written text
accompanying the Dendy photo when it was sent. Doc. 62 at 8. Additionally, Vanceah accused
Amtrak of being “insensitive to women and especially women of color.” Doc. 65-15 at 3.
On August 7, 2020, Amtrak filed a request for a pre-motion conference to raise discovery
disputes. Specifically, Amtrak asked to move to compel production of records concerning
Vanceah’s hours worked and alleged lost wages, records pertaining to emotional distress
damages, and unemployment and medical records. Vanceah replied that she would provide
anything Amtrak requested. Doc. 62 at 8. Ultimately, multiple conferences regarding discovery
and discovery sanctions were held by this Court.
On September 18, 2020, the first telephonic discovery hearing was conducted. Id. For
the first time, Vanceah stated that she also was a real estate broker and used the business phone
for her real estate business. Doc. 62 at 10; Doc. 32 at 14:8–9. The parties discussed the status of
Vanceah’s business phone, and Vanceah’s counsel advised that it had been lost, not stolen, as
Vanceah had most recently represented in her June 14 supplemental responses. Doc. 65-16 at
11–12. Still, Vanceah’s counsel told the Court that she had turned over all the text messages she
had between her and Dendy. Doc. 32 at 9:7–8. The Court therefore denied Amtrak’s initial
request for forensic analysis of Vanceah’s phones, and ordered Vanceah turn over any additional
documents or submit an affidavit confirming that she had none. Doc. 62 at 9.
On September 30, 2020, Vanceah signed two affidavits in response to the Court’s oral
September 18 order. Doc. 62 at 9. The affidavits affirmed that Vanceah had two cell phones,
one for personal use and one for business use; that the photo had been sent to her personal cell

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phone and that there had been no personal communication with Dendy on the business phone
(contrary to her response to Amtrak’s third discovery deficiency letter, in which she represented
that the photo was sent to her business phone); and that she was not in possession of anything
else responsive to Amtrak’s request, including any further text messages or other messages
concerning the claims, that had not already been provided. Id. at 10; Doc. 65-17.
Vanceah was deposed over four days, the first two of which occurred on November 10
and 18, 2020. Doc. 66 at 12–14; Doc. 65-19. At these first two depositions, Vanceah again
contradicted the statements she had made in her affidavits. She averred that she had spoken to
Dendy on both phones and did not distinguish between them (contradicting her affidavits), that
her business phone was stolen (not lost, as her counsel had previously stated), and that she did
not have any photos or text messages from the stolen business phone backed up on iCloud, a
cloud-based storage system that periodically backs up iPhone data. Doc. 62 at 11. She also
stated that she had deleted screenshots of communications with Dendy during this litigation, and
admitted that she had not produced all the text messages and emails that had been requested by
Amtrak—indeed, she testified that she had “more than a hundred pages” of messages on her
phone that she had provided to her own counsel but not to Amtrak. 4 Doc. 65-19 at 246:10–17;
Doc. 62 at 11. Similarly, she stated that she had not produced all correspondence with Amtrak’s
human resources department regarding her complaint, only “the ones that bother [her] the most.”
Doc. 65-19 at 249:4–5. However, she claimed that she was not being deceptive but rather that
Amtrak was attempting to frame her as a liar and to confuse her, which is what led to these
discrepancies. Doc. 66 at 10–11. By the same token, she admitted that she had been untruthful

4

These admissions contradicted what she had stated in her responses to Amtrak’s interrogatories and document
requests, in her supplemental responses, in her response to Amtrak’s third discovery deficiency letter, and in her
attorney’s representations to the Court in the September 18 conference.

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in her affidavit when she stated that she had “conducted a good faith search for electronic
discovery and was not in possession of anything she had not already provided.” Doc. 62 at 12
(citing Doc. 65-19 at 253:20–254:19).
Amtrak consequently filed a letter on November 24, 2020 asking the Court for a premotion conference, and renewed its request for a forensic examination of Vanceah’s phones.
Doc. 62 at 12. It also placed Vanceah on notice that it intended to seek sanctions based on
Vanceah’s discovery responses, despite her attorney attesting to Amtrak’s counsel on November
18, 2020 that her client had not deleted any relevant evidence and had not contradicted her
affidavits. Id; Doc. 34. Vanceah replied on November 29, 2020, objecting to this forensic
analysis and refusing to pay for it, though she maintained that the crux of the case was the
unsolicited Dendy photo. Doc. 62 at 12; Doc. 34; Doc. 35.
Another telephonic hearing was held on December 4, 2020 regarding the renewed request
for forensic analysis. Though Amtrak explained that Vanceah had deleted information from her
cell phone during the course of discovery, her attorney again told the Court—contrary to what
Vanceah admitted at her deposition—that her client had testified that this deletion had not
deleted any relevant texts from her phone during this litigation. Doc. 62 at 13. She also stated
that Vanceah had indeed sent Dendy a photograph of a woman’s buttocks, but that it was a
“meme” and not intended to provoke him into sending the Dendy photo. Id. This time, the
Court ordered Vanceah to produce both phones for forensic analysis, and to pay for this analysis,
since her prior responses to Amtrak’s discovery requests had been far too narrow and constantly
changing. Id.; Doc. 38 at 9:13–19, 13:24.
While Vanceah produced both phones, one required repair before it could be examined,
so Amtrak moved on behalf of all parties for extension of time to complete discovery, which was

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granted. Doc. 41 at 1. On December 28, 2020, Amtrak contracted with a third-party vendor,
Consilio, to examine the data on both phones. Doc. 62 at 13–14. Consilio completed its forensic
analysis 5 by January 28, 2021. It found that Vanceah’s business phone, which had only been in
use since January of 2020, had no record of communications with Dendy, even though Dendy
himself had produced text messages he had sent to that phone—suggesting Vanceah had deleted
those communications. Doc. 65 ¶ 24. It also found that Vanceah’s personal phone contained
text messages between her and Dendy from December 14, 2017 to February 2, 2018 that
Vanceah had not produced in discovery. Id. The photo Dendy allegedly sent Vanceah was not
on either phone, and the forensic analysis did not reveal any evidence that it ever had been. 6 Id.;
Doc. 69-1; Doc. 41 at 1.
The deposition of Vanceah resumed on April 13, 2021 and April 21, 2021. As relevant to
this motion, at that time Vanceah stated that her complaint “wasn’t about the picture,” but about
Dendy “abusing his power” over her, Doc. 65-19 at 315:24–25, contradicting her reply to
Amtrak’s request for forensic analysis of the phone, in which she said the photo was the crux of
the case. She also contradicted her attorney’s statement that the buttocks photo was a meme,
testifying at one point that she sent this photograph to Dendy in response to him asking for a
picture, and at another that she sent it accidentally, because she meant to send a photograph of
sneakers. Doc. 62 at 13 n.13. According to a letter sent by Dendy to the Court, Vanceah also
contradicted her initial complaint when she admitted that the sexual encounter between them in

5

The forensic analysis consisted of a search of messages including texts and email sent to or from Vanceah, and
third-party apps and social media on her device during various date ranges from August 1, 2017 to January of 2021.
The criteria for the search consisted of all messages between Vanceah’s two phones, messages between Vanceah
and relevant parties, messages containing possible relevant language, and locations of photos sent to or received
from Dendy. Doc. 69-1.

6

While the forensic analysis found no evidence of the Dendy photo on either phone, Dendy does “not deny he sent a
photo . . . to plaintiff.” Doc. 48 at 2.

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Pennsylvania had been consensual. Doc. 48 at 1. When questioned about the origin of the
Dendy photo, Vanceah revealed that she did not know if the phone that had allegedly received
the photo had been connected to iCloud. Doc. 62 at 14. She also stated, for the first time, that
after filing her complaint in the instant case and during discovery, she brought her phone to an
unspecified electronics store where she instructed an employee named “Josh” to retrieve the
photograph based on a physical description. Id. She testified that she gave Josh her iCloud login
information and instructed him to retrieve the photograph, but not to retrieve any text messages
with Dendy or anything else responsive to Amtrak’s discovery requests. Josh texted Vanceah
the photo he allegedly retrieved, which she then deleted again after providing it to her counsel.
Id. Lastly, Vanceah testified for the first time during her deposition that Dendy had actually sent
her two photos of his genitals, but she only asked Josh to retrieve one photo because she felt it
was enough. Id; Doc. 65-19 at 350:8–9. Vanceah’s counsel contradicted her client’s claims in
her written opposition to the motion for discovery sanctions, stating that Vanceah did not delete
the photo during the lawsuit, but rather that she only did so before its filing, once after Dendy
initially sent it and again after Josh retrieved and sent her the photo. Doc. 66 at 18.
On April 23, 2021, another conference was held. Defendants told the Court that Vanceah
had not ever served any notice of deposition on them, and that they were still waiting for certain
records relating to damages. The Court held that all discovery should be completed by July 23,
2021. In the interim, Vanceah filed her Answer to Dendy’s counterclaim, in which she denied,
inter alia, that she had “urge[d] him to engage in a personal relationship with her” and that she
had “lodg[ed] false claims of misconduct against” Dendy. Doc. 46 at 1; Doc. 16 at 4. On July
14, 2021, she moved for a conference regarding forensic analysis of Dendy’s phone, so that the
picture could be recovered from him, instead. Doc. 47. Dendy responded to this request the next

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day, arguing that the request was a fishing expedition, that he was not under any obligation to
preserve evidence, and that there was no need for the analysis because he did not deny sending
the photo. Doc. 48. The Court granted the motion for conference, scheduling discussion of this
issue for the case management conference scheduled for three months later, on July 23. At the
July 23, 2021 conference, the Court denied Vanceah’s motion to compel a forensic analysis of
Dendy’s phone, since Dendy stated that he had the picture and would turn it over. However,
because expert discovery had not yet been completed (or even started), the Court delayed the end
date for discovery once again to September 23, 2021.
On August 26, 2021, Amtrak sought a conference regarding its intention to move for
sanctions against Vanceah and her counsel for repeated discovery malfeasance. Doc. 50; Doc.
62 at 15. Vanceah responded to this request on August 31, 2021. She urged the Court not to
grant the sanctions, arguing that she had already been punished for the same acts for which the
sanctions were sought, such as through the over $16,000 she allegedly had to spend on the
forensic analysis of her phones, and that she did not fabricate a photo and had provided the texts
she did in good faith. Doc. 52 at 2. She further claimed that she only deleted evidence before
the lawsuit was filed, directly contradicting her April 13, 2021 deposition testimony that she had
deleted the photo when she was already represented by counsel, and recovered the photo and
provided it to her counsel during the lawsuit. Doc. 52 at 1; Doc. 62 at 15.
The conference was held on September 9, 2021. The Court ordered Vanceah’s counsel to
look into her client’s claims that an individual named Josh who worked at an electronics store
had conducted an analysis of her phone. Her counsel claimed that she had only learned of how
Vanceah had obtained the PDF of the photo provided to Amtrak during her deposition. Doc. 62

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at 15. The Court also ordered her counsel to provide the defendants information about Josh and
his employer by or before September 16, 2021. Doc. 57 at 15:4–5.
On September 16, 2021, Vanceah’s counsel wrote to the Court concerning her efforts to
locate Josh and the electronics store. Doc. 53; Doc. 62 at 15. While she had not been able to
find a Josh at the address Vanceah had provided, she had discovered that the electronics store her
client had allegedly used had closed, but had employed someone named Josh while it was
operating, who now worked at a different store. Doc. 65-22. She provided defendants with
Josh’s phone number and the first name and phone number of the owner of the original store. Id.
Amtrak then conducted their own search for Josh, ultimately finding that his name was
actually Josue Rondau and that he worked at a different storefront, U R Wireless, for a different
owner. Doc. 62 at 15–16. He was deposed on October 25, 2021. Doc. 65-23. Directly
contradicting the representations Vanceah had made to the Court, Rondau testified that Vanceah
never asked him to search the contents of her phone or iCloud account and that he never did so
and never retrieved a photo of a man’s penis from her account. Doc. 62 at 16. Indeed, he
testified that performing data searches on a client’s phone went against the company’s policies.
Doc. 65-23 at 23:21–24:3. Instead, Rondau testified only that Vanceah asked him to “unlock”
and “restore” her phone because she herself had “some information she need[ed] to retrieve,”
and that Vanceah did not ask him to “search through any photos on her phone to retrieve a
certain photo for her.” Id. at 23:13–24:17. Vanceah claims that Amtrak’s counsel intimidated
and threatened Rondau to elicit this testimony. Doc. 66 at 19–20.
Finally, Amtrak moved for leave to file sanctions against Vanceah and her counsel on
October 25, 2021, and was granted leave the next day. Doc. 59; Doc. 60. It filed for sanctions
on November 23, 2021, citing the various discovery delays and violations discussed above. Doc.

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61. On November 4, Dendy joined the motion filed by Amtrak seeking dismissal of Vanceah’s
lawsuit, at which point he would withdraw his counterclaims. Doc. 64. 7
II.

LEGAL STANDARD

Under Rule 37(c)(1), a court may sanction a party that “fails to provide information . . .
as required by Rule 26(a) or (e).” Fed. R. Civ. P. 37(c)(1). Under Rule 26(e), Plaintiff must
supplement or correct the disclosure in its initial disclosures, response to an interrogatory, or
request for production “in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect ...; or [] as ordered by the Court.” Fed. R. Civ.
P. 26(e)(1). Courts may impose, inter alia, the following sanctions under Rule 37(c)(1) for
violation of Rule 26(e): imposition of attorneys’ fees and costs expended, preclusion of the
information at trial, or dismissal of the action in whole or in part. Fed. R. Civ. P.
37(b)(2)(A)(iii)–(v); 37(c)(1)(A). “Rule 37 sanctions must be applied diligently both to penalize
those whose conduct may be deemed to warrant such a sanction, and to deter those who might be
tempted to such conduct in the absence of such a deterrent.” Roadway Exp., Inc. v. Piper, 447
U.S. 752, 763–64 (1980) (internal quotation marks and citation omitted). In selecting the
appropriate sanction, the Court may consider the full record in the case. Abreu v. City of New
York, 208 F.R.D. 526, 529 (S.D.N.Y. 2002).
The relevant factors for determining whether a district court should exercise its broad
discretion under Rule 37 are: “(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.” S.E.C. v. Setteducate, 419 F. App’x 23, 24 (2d Cir. 2011) (citing Agiwal v.

7

Dendy does not take a position on whether the Court should sanction Vanceah’s counsel. Doc. 64.

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Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009)). “[T]hese factors are not exclusive,
and they need not each be resolved against the party challenging the district court’s sanctions for
us to conclude that those sanctions were within the court’s discretion.” S. New England Tel. Co.
v. Global NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010).
III.

DISCUSSION
A. Sanctions

Amtrak requests the dismissal of Vanceah’s complaint and an award of costs and fees.
See Doc. 62 at 1. After two years of discovery delays occasioned by Vanceah and her counsel,
Amtrak claims sanctions are warranted under Rule 37, because Vanceah “withheld documents,
curated her productions, destroyed evidence, falsified affidavits and made contradictory
representations under oath.” Id. The Court agrees.
First, although Vanceah’s claim hinges in large part on allegedly harassing text messages
and the Dendy photo, her two sets of initial disclosures were supported with only five pages of
text messages between her and Dendy. Doc. 62 at 3. In contrast, Vanceah had provided the
Amtrak ethics office with 58 pages of texts between herself and Dendy when she first filed her
complaint with them. Vanceah then served incomplete, unverified 8 responses to Amtrak’s First
Set of Interrogatories and produced no documents in response to Amtrak’s First Set of Document
Requests. Doc. 62 at 3–4. While Amtrak sent Vanceah a deficiency letter on November 18,
2019, noting her insufficient responses to their requests—in particular, that (1) the responses
were unverified, (2) the documents Vanceah cited were not actually attached, and (3) she did not
provide any basis for objecting to identifying her cell phones, Doc. 62 at 6; Doc. 65-8—Vanceah
did not respond until April 30, 2020, a delay of five months. Doc. 62 at 6. And this response
8

Discovery responses should be verified by plaintiff’s counsel to ensure that they are true and correct. See Haber v.
ASN 50th St., LLC, 272 F.R.D. 377, 379 (S.D.N.Y. 2011) (it is “require[d] that interrogatory responses be verified”).

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once again did not provide the requested documents, and was not verified until May 4, 2020. Id.
Under Rule 26(e), Vanceah was required to promptly correct and supplement any insufficient
responses to Amtrak’s discovery requests when notified by a deficiency letter.
Second, Vanceah’s failure to preserve the text messages Dendy sent, and her shifting
explanations about her phones, her contradictory explanations of whether she deleted the other
communications, and her demonstrably false information about the forensic examination she had
done on her phone, are sanctionable. Notably, although the Dendy photo is allegedly central to
Vanceah’s case, she did not send Defendants a copy of what she claimed was the photo until
June 23, 2020, almost two years after the complaint was filed, and then only as a .pdf file sent
via Google Drive, with no surrounding metadata, context or accompanying text messages.
Subsequently, Vanceah claimed in her deposition that Dendy had sent two photos, but in
response to questioning about why she only produced one, said that she did not produce both
because she “felt like one picture [wa]s enough.” Doc. 62 at 14. She also reported that after
receiving the photo from Josh and allegedly forwarding it to her counsel, she deleted it from her
phone once again. At that point, the parties were in the midst of highly contentious discovery
disputes, and Vanceah was aware or should have been aware of the duty to preserve evidence. 9
Id. at 6, 11, 14.
Indeed, “while a litigant is under no duty to keep or retain every document in its
possession . . . it is under a duty to preserve what it knows, or reasonably should know, is
relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is
reasonably likely to be requested during discovery and/or is the subject of a pending discovery
request.” Zubulake v. UBS Warburd LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (internal

9

According to her deposition testimony, Vanceah allegedly initially deleted the Dendy photo because she needed to
clear up memory space on her phone. Doc. 62 at 11.

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quotation marks and citation omitted). This duty to preserve extends to electronically-stored
information, such as text messages. See Charlestown Capital Advisors, LLC v. Acero Junction,
Inc., 337 F.R.D. 47, 60–61 (S.D.N.Y 2020) (holding the plaintiff had an obligation to preserve
emails that had been deleted during discovery). If her testimony is to be believed, Vanceah
deleted the alleged photograph at the heart of her case not just once, but twice. The second time
she deleted the photo was after she filed the lawsuit and was represented by counsel. Doc. 65-19
at 335:2–4.
Vanceah’s direct contradiction of her affidavits during her deposition further
demonstrates the recklessness with which she treated the discovery process. Vanceah signed two
affidavits in response to the Court’s rulings on the parties’ discovery disputes, which were
prepared and notarized by her counsel. Doc. 62 at 9. The affidavits stated that she did not text
Dendy on her business phone, that Dendy had sent the alleged photo to her personal phone, that
she had conducted a good faith search through her electronic media and that nothing on her
business phone was related to this claim. Id. at 9–10. However, Vanceah’s testimony during her
four days of deposition directly conflicted with the information she provided in the affidavits.
For example, Vanceah had previously provided information that she did in fact distinguish
between her personal and business phones, only communicating with Dendy on the personal
phone. Doc. 62 at 10. She had also previously stated that her business phone had been lost. Id.
But over the first two days of the deposition, Vanceah testified that she did not, in fact,
distinguish between her personal and business phones; that she communicated with Dendy using
both phones; that her business phone had been stolen in December of 2017; that she took
screenshots of her texts with Dendy and sent them from one phone to the other; that she was able
to search her current phone for evidence; that her current phone contains more texts than she

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produced during discovery; and that she withheld emails with Amtrak Human Resources
regarding her internal complaint about Dendy, providing her counsel with only the texts that
bothered her the most. Id. at 10–12.
Where, as here, a plaintiff has engaged in repeated discovery abuses, dismissal is an
appropriate sanction. In Setteducate, 419 F. App’x at 25, the Second Circuit affirmed the
imposition of default judgment against the defendant as a Rule 37 sanction in part because the
defendant “failed to produce documents requested by” the plaintiff, even after the deadlines to do
so were extended. That case concerned the alleged fraud of investors out of millions of dollars
by the defendant’s company, Great American Technologies. While the plaintiff requested
documents relevant to that fraud, the defendant disobeyed two orders by the court to turn them
over. The court found it notable that the plaintiff filed a request for discovery extension three
months after its initial request. Id. Here, Vanceah similarly refused to turn documents over to
Amtrak. Indeed, her refusal is arguably more egregious; rather than the three months between a
request and extension request, Amtrak was forced to file three discovery deficiency letters over
the course of eight months, from November 2019 to July 2020. See also S. New England Tel.
Co., 624 F.3d at 140 (finding sanctions justified against a telecommunications service because it
“failed over the course of two years to produce . . . records” (emphasis in original)).
In the face of this sorry record, Vanceah responds that she was justified in withholding
certain categories of discovery. She is wrong, and in any event, did not properly attempt to seek
court intervention to prevent any purported abusive or burdensome discovery requests. First, she
alleges that the reason she submitted so few documents in her initial disclosure — only five
pages of texts between her and Dendy — was because she found Amtrak’s request overbroad,
and a “fishing expedition” into her private life. Doc. 66 at 3. However, the requested

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information, and especially the text messages produced in her internal complaints to Amtrak,
were relevant and necessary to the proper adjudication of this case. Vanceah also incorrectly
claims that she did not believe that “other potential key evidence” requested by Amtrak extended
to the remainder of texts she had previously produced to Amtrak Police in her initial, internal
complaint. Doc. 66 at 3; Doc. 62 at 3. These texts were clearly relevant, particularly considering
that she framed the messages Dendy sent as the “basis” of her claims. Doc. 35 at 1.
She further maintains that she did not believe there was a good faith basis to call for the
production of all her mobile devices. Id. at 2. Her deposition testimony proves the relevancy of
that request: she testified that she communicated with Dendy on both phones. Similarly,
Vanceah did not produce any documents after receiving Amtrak’s First Set of Document
Requests, which she alleged was due to a misunderstanding; the only document that her counsel
felt was appropriate to produce was Dendy photo. Doc. 62 at 3–5; Doc. 66 at 6. Vanceah’s
explanation for deleting the Dendy photo—that the photo was “disgusting”—is plainly
unreasonable in the context of a gender discrimination case in federal court.
At this juncture, then, these excuses are unacceptable, particularly where, as here, the
Court has already sanctioned Vanceah and ordered her and her counsel more than once to
comply with their discovery obligations. These orders stem from the parties’ debate over
forensic analysis of Vanceah’s phone: after the Court denied Amtrak’s initial request for
forensic analysis, relying on Vanceah’s counsel’s representation that she had provided all
relevant texts, Amtrak alerted the Court that they still had not received the text messages that
Vanceah had placed at the center of her complaint. Doc. 38 at 3:13–14. Amtrak had received
two sworn affidavits drafted by Vanceah’s counsel stating she had provided everything that
existed; however, in Vanceah’s deposition, they learned that Vanceah “was able to scroll through

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her phone at that moment and confirm that there were more messages.” Id. at 4:12–13. The
Court thus required Vanceah to provide the phone and required that she pay for the forensic
examination. Id. at 9:16–19.
The Court was also forced to direct Vanceah’s counsel to find and turn over information
regarding the purported forensic examination Vanceah had done on her phone. Doc. 57 at
12:11–12. It was only Amtrak’s independent investigation of Vanceah’s account that resulted in
the identification of Josue Rondau, the individual that purportedly conducted the forensic
analysis of her phone. To put it mildly, his deposition testimony did not support her account in
any regard. Instead, he testified that she did not ask him to conduct a search of her phone, but
rather to unlock and restore her phone.
In short, Vanceah and her counsel were made aware of her non-compliance again and
again and failed to produce plainly relevant materials. Indeed, even Vanceah’s opposition to the
instant motion is riddled with unwarranted accusations in an attempt to divert attention from the
relevant issues, such as that Amtrak has painted Vanceah as a “sexualized liar” and treated her
like a “rape victim.” Doc. 68 at 2; Doc. 66 at 2–3. Still, Vanceah argues that a prerequisite of
Rule 37 has not been met and that sanctions are therefore inappropriate. Relying on Daval Steel
Prod., a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357 (2d Cir.1991), 10 Vanceah
alleges that a court may impose Rule 37 sanctions only when the transgressing party has violated
a prior court order, which she says she has not. Doc. 66 at 21. Amtrak replies that they have met
that element because Vanceah breached the “December 12, 2019 Civil Case Discovery Plan and

10

In Daval Steel Prod., a Div. of Francosteel Corp. v. M/V Fakredine, the court reversed in part the imposition of
severe sanctions on one plaintiff because they had not been subject to a court order, only to a subpoena duces tecum,
but imposed sanctions on the other plaintiff because of its repeated failure to respond to unequivocal court order
requiring document and witness production for deposition. Daval Steel Prods., 951 F.2d at 1366–68.

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Scheduling Order requiring production of timely, complete and accurate discovery responses.”
Doc. 68 at 8–9.
Vanceah’s claim that she did not violate this order is premised on the notion that she has
provided Amtrak with all of the documents or texts that she has in her possession. Doc. 66 at 21.
It is abundantly clear that this is not the case. The Court finds that Vanceah repeatedly failed to
comply with her disclosure obligations and the Court’s orders, and that the requirements for a
discretionary sanction are met here. Over two-and-a-half years, six discovery-related Court
conferences and several letters, Vanceah has refused to produce and likely destroyed relevant
documents, lied about her cell phones, lied about the forensic examination she had purportedly
conducted on her phone, and baselessly accused her adversaries of racism and sexism. She has
contradicted herself and made it nearly impossible for Amtrak to develop a full understanding of
the facts that underlie her claims. Considering the factors relevant to a Rule 37 violation, then,
the Court is convinced that Vanceah has engaged in willful non-compliance. And Vanceah has
been warned more than once about the consequences of non-compliance.
A district court may use its inherent power to sanction a plaintiff by dismissing her case
with prejudice, Shepherd v. Annucci, 921 F.3d 89, 98 (2d Cir. 2019), or by imposing monetary
sanctions against a party or her counsel. International Technologies Marketing, Inc. v. Verint
Systems, Ltd., 991 F.3d 361, 367 (2d Cir. 2021). “Because of its potency, however, a court’s
inherent power must be exercised with restraint and discretion.” Id. at 368 (quoting Chambers v.
NASCO, Inc., 501 U.S. 32, 44 (1991)). Certain restraints have been put on the courts to that end:
before a court may invoke its inherent power to sanction, the party facing sanctions must be
provided with “adequate notice and opportunity to be heard.” Shepherd, 921 F.3d at 97. When
the sanction is dismissal with prejudice, it must be supported by “clear evidence of misconduct

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and a high degree of specificity in the factual findings.” Mitchell v. Lyons Pro. Servs., Inc., 708
F.3d 463, 467 (2d Cir. 2013) (internal quotation marks and citations omitted). The Court must
find “willfulness, bad faith, or reasonably serious fault,” id. (citation omitted), and must also
consider “whether a lesser sanction would [be] appropriate,” Shepherd, 921 F.3d at 98 (citation
omitted).
In In re Anderson, No. 14-22147 (RDD), 2022 WL 1926608, at *2 (Bankr. S.D.N.Y.
June 3, 2022), the court found the sanction of a default judgment under Rule 37 to be
appropriate, in part because of the “submission of false affidavits” on the part of Credit One
Bank. Plaintiff had brought suit against the bank on behalf of himself and a putative class due to
the bank’s refusal to report that a debt had been charged off. When the bank repeatedly lied in
depositions, affidavits, and representations to the court about responses to document requests and
other actions it had taken that were relevant to the proceedings, the court determined that the
severe sanction of entering a default judgment against the bank was appropriate. So too here,
Vanceah’s contradictory affidavits and testimony concern facts that are central to the case—
whether the Dendy photo was sent as part of a consensual personal relationship between
Vanceah and Dendy or something more nefarious. Thus, whether there were more text messages
between them could clearly impact the determination of whether she was subject to
discrimination or retaliation. Vanceah has made that determination impossible as a practical
matter because the Court can have no confidence that all relevant communications have been
produced.
In Shepherd, the plaintiff was a pro se litigant whose complaint was dismissed with
prejudice as a sanction because he had misrepresented his litigation history. He had alleged that,
during his time in a New York State prison, the department of corrections had not accommodated

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his disability, and had refused to treat and exacerbated his injuries. The Second Circuit affirmed
the dismissal, finding that the plaintiff’s claims were “without foundation” and “contradictory.”
Shepherd, 921 F.3d at 96–97 (internal quotation marks and citations omitted). Though it made
clear that this sanction was a serious one, it found that it was appropriate, given the bad faith
with which the plaintiff acted and the repetitive nature of those actions. Id. at 98.
In similar cases, courts in this District have found dismissal warranted where the plaintiff
fabricated evidence during the discovery process. In Rossbach v. Montefiore Medical Center,
No. 19 Civ. 5758 (DLC), 2021 WL 3421569 at *1–*3 (S.D.N.Y. Aug. 5, 2021), plaintiff alleged
that she had been the subject of sexual harassment by her supervisor. Like here, she produced
text messages sent to her by her supervisor that were ultimately found to be inaccurate (although
in Rossbach, they were completely fabricated). And, as in the instant case, she contradicted
herself multiple times as to why she had provided these inaccurate texts. Judge Cote held that
this willful, bad faith fabrication of evidence indicated that a sanction of “dismissal . . . is
warranted as an exercise of this Court’s inherent power to sanction and deter fraud on the Court.”
Id. at 6.
Vanceah purposely withheld documents for months and contradicted herself in written
submissions to the Court and in her affidavits. While the Court does not reach the issue of
whether Vanceah went so far as to fabricate any text messages from whole cloth as was the case
in Rossbach, she has engaged in multiple different but analogous discovery violations, including
deletion and withholding of relevant evidence, providing misleading affidavits, and failure to
correct false information. In the aggregate, these violations show Vanceah’s willful and bad
faith noncompliance with the discovery process, and warrant dismissal.

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B. Attorneys’ Fees
In addition to seeking sanctions, Amtrak also asks the Court to “award Amtrak its
reasonable attorneys’ fees and costs.” Doc. 68 at 10. This request is denied. “[T]he decision to
award fees rests in the court’s equitable discretion.” Crescent Publ’g Grp., Inc. v. Playboy
Enters., Inc., 246 F.3d 142, 147 (2d Cir. 2001); see also Weitzman v. Stein, 98 F.3d 717, 720 (2d
Cir. 1996) (“trial courts enjoy considerable discretion in determining the appropriate amount of
attorney fees” (citation omitted)); Casale v. Kelly, 710 F. Supp. 2d 347, 367 (S.D.N.Y. 2010)
(“[a] court may award appropriate attorney fees and costs to a victim of contempt.” (quotation
marks omitted)). “A sanction imposed on a party held in civil contempt generally may serve
either or both of two purposes: to coerce the contemnor into complying in the future with the
court's order, or to compensate the complainant for losses resulting from the contemnor’s past
noncompliance.” Am. Honda Motor Co. v. V.M. Paolozzi Imports, Inc., No. 7:10 Civ. 955 (FJS)
(ATB), 2013 WL 1296421, at *6 (N.D.N.Y. Mar. 26, 2013) (alteration omitted) (quoting Perfect
Fit Indus., Inc. v. Acme Quilting Co., Inc., 673 F.2d 53, 56 (2d Cir. 1982)).
Amtrak does not request a specific amount in fees, it states that it will submit a
declaration detailing its fees and costs if the Court finds monetary relief appropriate, and simply
cites to cases in which fees were awarded. See, e.g., Doc. 68 at 10 (citing ComLab, Corp. v.
Tire, 815 F. App’x 597 (2d Cir. 2020)). In ComLab, an IT services provider was sanctioned for
discovery violations in the case it had filed against a company for breaching their computer
services contract. The case was dismissed with prejudice and the company was awarded fees,
and the court noted that even though “a lesser sanction may have effectively nullified the
prejudice . . . caused to [defendant], [courts] have recognized the appropriateness of harsher

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sanctions to penalize those whose conduct may be deemed to warrant” them. ComLab, 815 F.
App’x at 602 (internal quotation marks and citations omitted).
Considering that awarding fees is within a court’s equitable discretion, the Court finds
that the sanction of dismissal suffices. First, dismissal prevents Vanceah from being able to
pursue her claim. So, attorneys’ fees are not necessary to nullify the prejudice, as the Second
Circuit suggests in ComLab that sanctions are meant to do.
Indeed, many of the reasons for which Amtrak suggests that this additional monetary
penalty is appropriate are the same reasons they cite in support of the sanction of dismissal: that
she committed “pervasive discovery abuses,” that she “withheld documents,” and that she
“willful[ly] destr[oyed] . . . the only evidence that could substantiate” her claims. Doc. 62 at 25;
see Lawrence v. City of New York, No. 15 Civ. 8947 (WHP), 2018 WL 3611963, at *8 (S.D.N.Y.
July 27, 2018) (granting a sanction of dismissal but denying a sanction of attorneys’ fees because
it found that dismissal alone was “the appropriate sanction that offers the closure that Defendants
have earned” without being overly punitive).
Equity also counsels against the imposition of fees. Amtrak is a corporation 100% of
whose preferred stock is owned by the United States government—109,396,994 shares at $100
par value. Doc. 14 ¶ 3. In contrast, Vanceah has worked as a coach cleaner and hairdresser.
Doc. 66 at 1; Doc. 34-1. While not discounting the severity of her discovery abuses, the Court
finds it unnecessary to require Vanceah to pay Amtrak’s attorneys’ fees, especially considering
that it already required her to pay approximately $16,000 for the forensic analysis of her phones.
Doc. 52. See also Serrano v. Shield Inst. of David, Inc., No. 94 Civ. 6745 (MBM), 1997 WL
167042, at *6 (S.D.N.Y. Apr. 9, 1997) (“[b]efore awarding attorney’s fees, a court should take
into account the financial circumstances of the party to be sanctioned.”); Oliveri v. Thompson,

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803 F.2d 1265, 1281 (2d Cir. 1986) (“it lies well within the district court's discretion to temper
the amount to be awarded against an offending [party] by a balancing consideration of his ability
to pay”); Lawrence, 2018 WL 3611963, at *8 (denying the attorneys’ fees sanction because of
the parties’ relative financial circumstances).
Lastly, Amtrak also asks that attorneys’ fees also be assessed against Vanceah’s attorney,
René Myatt, pursuant to 28 U.S.C. § 1927. This request is also denied. Sanctions “against
counsel who willfully abuse judicial processes . . . are within a court’s powers.” Roadway Exp.,
Inc. v. Piper, 447 U.S. 752, 766–67 (1980). However, these sanctions “should not be assessed
lightly.” Id. at 767. The record of discovery violations and delays in this case at the very least
suggest that counsel was less than diligent in directing her client to identify, preserve, and
produce relevant evidence. However, nothing before the Court suggests that counsel engaged in
anything other than zealous, if perhaps misguided advocacy.
IV.

CONCLUSION
For the reasons stated above, Amtrak’s motion is GRANTED. The Court dismisses all of

Vanceah’s claims with prejudice. The Clerk of Court is respectfully directed to terminate the
motions, Docs. 61 and 62, and to close the case.

It is SO ORDERED.
Dated: August 1, 2022
New York, New York
Edgardo Ramos, U.S.D.J.

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