Hudson v. Town of Pine Plains-Justice Christie Acker et al
ORDER ADOPTING R&R IN PART & ORDER TO SHOW CAUSE for 142 Report and Recommendations: On April 24, 2017, Magistrate Judge Paul E. Davison issued a Report & Recommendation (the "R&R") recommending dismissal of Plaintiff's claims again st Defendants Miano and Mergendahl pursuant to Federal Rule of Civil Procedure 37(b)(2)(A) for Plaintiff's repeated failure to comply with court-ordered discovery. For the reasons to follow, the Court adopts Judge Davison's recommendation i n part. Accordingly, it is hereby: ORDERED that Plaintiff shall show cause, by no later than June 14, 2017, as to why his claims against Defendants Miano and Mergendahl should not be dismissed with prejudice. The Court will dismiss the claims with prejudice in the event that good cause is not shown. SO ORDERED. (Signed by Judge Kenneth M. Karas on 5/31/2017) (ama)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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COUNTY OF DUTCHESS, et al.,
ORDER ADOPTING R&R IN
PART & ORDER TO SHOW
KENNETH M. KARAS, United States District Judge:
On April 24, 2017, Magistrate Judge Paul E. Davison issued a Report &
Recommendation (the "R&R") recommending dismissal of Plaintiffs claims against Defendants
Miano and Mergendahl pursuant to Federal Rule of Civil Procedure 37(b)(2)(A) for Plaintiffs
repeated failure to comply with court-ordered discovery. For the reasons to follow, the Court
adopts Judge Davison's recommendation in part.
A district court reviewing a report and recommendation addressing a dispositive motion
"may accept, reject, or modify, in whole or in part, the findings and recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(l). Pursuant to§ 636(b)(l) and Federal Rule of Civil
Procedure 72(b)(2), parties may submit objections to the magistrate judge's report and
recommendation. The objections must be "specific" and "written," and must be made "[w]ithin
14 days after being served with a copy of the recommended disposition." Fed. R. Civ. P.
72(b)(2); see also 28 U.S.C. § 636(b)(l).
When a party submits timely objections to a report and recommendation, the district court
reviews de novo the portions of the report and recommendation to which the party objected. See
28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3). The district court "may adopt those portions of
the ... report [and recommendation] to which no 'specific written objection' is made, so long as
the factual and legal bases supporting the findings and conclusions set forth in those sections are
not clearly erroneous or contrary to law." Eisenberg v. New Eng. Motor Freight, Inc., 564 F.
Supp. 2d 224, 226 (S.D.N.Y. 2008) (quoting Fed. R. Civ. P. 72(b)(2)).
The factual and procedural history of this case is set forth in the R&R. (See R. & R. 2-7
(Dkt. No. 142).) In short, Plaintiff initiated this case in July of 2012, (see Dkt. No. 1), and little
progress has been made since then. Since January 2017, Plaintiff has failed, despite being given
multiple opportunities, to respond to any of Defendants' discovery requests. What is more,
Plaintiff has admitted his delinquency twice in court, but has failed to cure those defects after
being ordered to do so. Most recently, at a conference before Judge Davison on April 3, 2017,
Plaintiff admitted that he had not yet responded to the discovery requests, but promised to do so
by the end of the week. (See Tr. 3-4.) Later that week, however, Plaintiff wrote a letter insisting
that he had already submitted his responses to the Court, a contention that had already twice been
rejected by Judge Davison on the record without protest from Plaintiff. (See Dkt. No. 136.)
Defendants Miano and Mergendahl thereafter filed a letter requesting dismissal of the Action
against them for Plaintiffs failure to comply with discovery obligations. (See Dkt. No. 137.)
Judge Davison gave Plaintiff a week to respond to Defendants' application, (see Dkt. No. 138),
but Plaintiff did not file anything. Thereafter, on April 24, 2017, Judge Davison issued the R&R,
Although he did not submit any letter in response to Defendants' request to dismiss the
case, Plaintiff did submit objections to the R&R. (See Pls. Answer to R. & R. and Resp. to Defs.
Claims ("Objs.") (Dkt. No. 152).) The objections, however, largely relate to the merits of this
and other suits in which Plaintiff is a party. Only two passages relate to Plaintiffs discovery
delinquencies. First, Plaintiff states:
The Plaintiff since instituting this action has tried not to be late or tardy in
answering any part of Defendants responses to this complaint.
(Objs. 1.) Second, Plaintiff writes:
At all times since this case was first filed in 2012 I, Robert Hudson Plaintiff
have tried never to be tardy or late with a response.
The Plaintiffs Court ordered Fourth Amendment Complaint with Plaintiffs
answer to Defendants Initial Disclosures Requests pursuant to N.Y.S. Attorney
General Rule 26(A)(l )of Federal Rules of Civil Procedure with 18 exhibits was
timely submitted to the court on February 3, 2017. Plaintiff properly and clearly
responded to the courts requests. It made no reason for Plaintiff to testify at
Discovery and again testify at the Trial by Jury Demanded when Plaintiff has
already submitted testimony documentation and (FOIL) files.
(Objs. 4.) These objections are without merit.
First, it is not enough for Plaintiff to "answer" or "respon[d]" to Defendants' filings, he
must comply with the Federal Rules of Civil Procedure by supplying the discovery information
that he is obliged to produce. The Court agrees with Plaintiff that there has been no shortage of
filings and responses on his part, but Defendants will not be forced to litigate a case without the
benefit of discovery, no matter how meritorious Plaintiff believes his case is. And while the
Court appreciates that pro se plaintiffs "are afforded special solicitude in the Second Circuit, that
solicitude does not extend to the willful, obstinate refusal to play by the basic rules of the system
upon whose very power the plaintiff is calling to vindicate his rights." Baker v. Ace Advertisers '
Serv., Inc., 153 F.R.D. 38, 40 (S.D.N.Y. 1992) (internal quotation marks omitted).
Second, Plaintiff has already been informed that his submission on February 3, 2017,
docketed as number 132, is insufficient to respond to Defendants' discovery requests, and he has
never protested that conclusion when in court. (See R. & R. 3-6.) A party's willfulness is one
factor to consider in whether dismissal is an appropriate sanction, and Plaintiff has demonstrated
that his defiance of his discovery obligations is not a consequence of negligence or unfamiliarity
with court procedures, but of willfulness. Dismissal is wholly appropriate in such circumstances.
See Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 303 (2d Cir. 2009) (affirming dismissal
where the plaintiffs "communications with the Magistrate Judge and opposing counsel indicate
that he understood the Magistrate Judge's discovery orders and realized that timely compliance
Finally, Plaintiffs objections leave little doubt that lesser sanctions would not be
effective. He has not only doubled down on his argument that he has already fulfilled his
discovery obligations, he has now also implied that will not give any further testimony in this
matter until trial. (See Objs. 4.) But it is the Court and the Federal Rules of Civil Procedure, not
Plaintiff, that determine what discovery will take place prior to trial. Plaintiff has made the
conscious decision that he will not comply with the rules of the Court, and dismissal is therefore
an appropriate sanction.
Importantly, the Court warned Plaintiff on March 27, 2017 that failure to comply with his
discovery obligations could result in sanctions, (see Dkt. No. 135), and Judge Davison warned
Plaintiff on the record that if he continued to breach his discovery obligations, that would be "a
basis to dismiss [the] case," (see Tr. 11 ). Plaintiff as therefore been advised that failure to
comply with his discovery obligations could result in dismissal. He has not responded to that
warning, and dismissal is therefore appropriate for the reasons set forth in the R&R and above.
In an abundance of caution, however, the Court will give Plaintiff one last opportunity to
show cause for why his claims against Defendants Miano and Mergendahl should not be
dismissed with prejudice.
Accordingly, it is hereby:
ORDERED that Plaintiff shall show cause, by no later than June 14, 2017, as to why his
claims against Defendants Miano and Mergendahl should not be dismissed with prejudice. The
Court will dismiss the claims with prejudice in the event that good cause is not shown.
Whittains, New York
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