Lewis v. Newburgh Housing Authority et al

Filing 243

ORDER: The Court therefore orders that Plaintiff appear for a deposition on July 24, 2023 at 10:00 a.m.in the deposition room located on the first floor of the United States Courthouse at 300 Quarropas Street, White Plains, NY 10601. As further set forth by this Order. Accordingly, by way of this Order, the Court is placing Plaintiff on notice of Rule 37(b) and Rule 37(d) of the Federal Rules of Civil Procedure; the obligations that they place on her to appear for her deposition; and the pos sible sanctions that she might face, including dismissal of this action, if she fails to appear for the deposition. At the deposition, Plaintiff may not engage in the type of abusive conduct that she exhibited during the July 7, 2023 telephone conf erence-such conduct will make it impossible to conduct the deposition, and will be treated as a failure to comply with the Court's order to complete the deposition. Counsel for Defendants must ensure that the court reporter retained to transcr ibe the deposition also creates an audio recording of the deposition. If Plaintiff acts in an abusive manner at the deposition, counsel for Defendants is directed to contact the Court promptly. The Clerk of Court is directed to mail a copy of this Order to the pro se Plaintiff. SO ORDERED. ( Deposition due by 7/24/2023.) (Signed by Magistrate Judge Andrew E. Krause on 7/12/2023) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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REGINA LEWIS,
Plaintiff,
-against-

ORDER
11 Civ. 3194 (CS) (AEK)

NEWBURGH HOUSING AUTHORITY, INC. et al.,
Defendants.
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THE HONORABLE ANDREW E. KRAUSE, U.S.M.J.
A telephonic status conference was conducted on Friday, July 7, 2023. After the Court
addressed preliminary matters and attempted to turn to discovery issues that had been identified
by counsel for Defendants in advance of the conference, Plaintiff expressed her unwillingness to
engage in discovery in strident tones. Plaintiff became increasingly irate, issued an abusive and
expletive-laden tirade, and then terminated her participation in the conference by hanging up the
phone.
The proceeding continued from there in Plaintiff’s absence, and the Court addressed
Defendants’ request to take Plaintiff’s deposition. Defendants previously noticed Plaintiff’s
deposition to take place on July 24, 2023 at the office of Defendants’ counsel. See ECF No. 240.
According to Defendants, Plaintiff has informed their counsel that she will not submit to a
deposition, id.; this is consistent with Plaintiff’s stated position at the July 7, 2023 conference, at
which she stated that she did not think any further discovery in this case was necessary or
appropriate. But despite the lengthy history of this case, Defendants have never had the
opportunity to take Plaintiff’s deposition, and such depositions are a routine part of litigation.
The Court therefore orders that Plaintiff appear for a deposition on July 24, 2023 at 10:00 a.m.

in the deposition room located on the first floor of the United States Courthouse at 300
Quarropas Street, White Plains, NY 10601.
The Court notes that Rule 37 of the Federal Rules of Civil Procedure provides that “[t]he
court where the action is pending may, on motion, order sanctions if . . . a party . . . fails, after
being served with proper notice, to appear for that person’s deposition[.]” Fed. R. Civ. P.
37(d)(1)(A)(i). Possible sanctions for a party’s failure to appear at her deposition are listed in
Rule 37(b)(2)(A)(i)-(vi), and include “dismissing the action or proceeding in whole or in part.”
Fed. R. Civ. P. 37(b)(2)(A)(v); see Fed. R. Civ. P. 37(d)(3). To ensure that the prerequisites of
Rule 37(d) have been satisfied, by no later than July 17, 2023, Defendants must serve “proper
notice” on Plaintiff to require her to appear for her deposition at the White Plains federal
courthouse at the date and time set forth above, and must file proof of service on the docket. If
the notice is served, and if Plaintiff then fails to appear for her properly noticed deposition, the
Court will authorize the filing of a motion for sanctions. If Plaintiff fails to appear for the
deposition, one potential sanction authorized by the Federal Rules of Civil Procedure is
dismissal of the entire case.
In addition, Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure provides for the
imposition of sanctions if a party “fails to obey an order to provide or permit discovery.” Fed. R.
Civ. P. 37(b)(2)(A). Again, the available sanctions for failing to follow a court order to provide
or permit discovery are listed at Rule 37(b)(2)(A)(i)-(vi), and include the possibility of
“dismissing the action or proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(v).
Consequently, if Plaintiff fails to obey this order to appear for her deposition, she will be
subject to the imposition of sanctions, and one potential sanction authorized by the Federal
Rules of Civil Procedure is dismissal of the entire case.

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The Court had intended to explain to Plaintiff at the July 7, 2023 conference the
provisions of Rule 37(b) and Rule 37(d) and the potential consequences of a failure to abide by
these rules, but Plaintiff’s conduct at the conference, culminating with her terminating her
participation in the conference, made that impossible. Accordingly, by way of this Order, the
Court is placing Plaintiff on notice of Rule 37(b) and Rule 37(d) of the Federal Rules of
Civil Procedure; the obligations that they place on her to appear for her deposition; and
the possible sanctions that she might face, including dismissal of this action, if she fails to
appear for the deposition.
At the deposition, Plaintiff may not engage in the type of abusive conduct that she
exhibited during the July 7, 2023 telephone conference—such conduct will make it impossible to
conduct the deposition, and will be treated as a failure to comply with the Court’s order to
complete the deposition. Counsel for Defendants must ensure that the court reporter retained to
transcribe the deposition also creates an audio recording of the deposition. If Plaintiff acts in an
abusive manner at the deposition, counsel for Defendants is directed to contact the Court
promptly.
The Clerk of Court is directed to mail a copy of this Order to the pro se Plaintiff.
Dated: July 12, 2023
White Plains, New York
SO ORDERED.

___________________________________
ANDREW E. KRAUSE
United States Magistrate Judge

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