Howard v. Erie Community College
DECISION AND ORDER re 40 MOTION to Compel and for extension of deadlines for discovery and dispositive motions filed by Martha Dixon, Michael Summers, Kenneth J. Barnes, Sr., Richard Washousky, State University of New York Erie Community College, Erie County, New York, Richard Kurek, Eileen P. Flaherty. Signed by Hon. H. Kenneth Schroeder, Jr. on August 19, 2011. (APG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOANNE M. HOWARD,
STATE UNIVERSITY OF NEW YORK
ERIE COMMUNITY COLLEGE, et al.,
DECISION AND ORDER
This matter was referred to the undersigned by the Hon. William M.
Skretny, in accordance with 28 U.S.C. § 636(b), for all pretrial matters, including
hearing and disposition of all non-dispositive motions. Dkt. #27.
Currently before the Court is the motion of defendants, Erie Community
College, Eileen P. Flaherty, Richard Washousky, Kenneth J. Barnes, Sr., Michael
Summers, Martha Dixon, Richard Kurek and Erie County, to compel the plaintiff to
respond to defendants’ discovery demands including, Defendants’ First Set of
Interrogatories, Document Demands and Notice to Take Deposition. Dkt. #40.
Plaintiff commenced this action, pro se, on March 31, 2009, alleging, inter
alia, discrimination on the basis of race and gender and retaliation pursuant to Title VII
of the Civil Rights Act of 1964. Dkt. #1. Shortly after commencing this action, pro se,
counsel appeared on behalf of plaintiff. Dkt. #3. Thereafter, an Amended Complaint
was filed on April 20, 2009. Dkt. #6. Defendants each filed their Answer to the
Amended Complaint on June 17, 2009 (Dkt. ##17-22) and pursuant to Federal Rule of
Civil Procedure 26(f), the parties submitted a proposed Discovery Plan to the Court on
August 25, 2009 (Dkt. #29). A Preliminary Pretrial Conference was held on September
10, 2009 and this Court issued its Case Management Order (Dkt. #31) on September
14, 2009. This Court’s Case Management Order adopted the parties’ proposed dates
set forth in the Discovery Plan. Compare Dkt. ##29 and 31. On September 14, 2009, a
Stipulation of Substitution of Counsel was filed reflecting new counsel on behalf of
plaintiff. Dkt. #32.
Since this Court issued its initial Case Management Order on September
14, 2009, the Court has, on three separate occasions, issued Amended Case
Management Orders. Dkt. ##35, 38 and 39. The most recent Amended Case
Management Order was issued on May 31, 2011 and provided, inter alia, for the
completion of discovery by July 25, 2011. See Dkt. #39. On June 24, 2011,
defendants filed the instant motion to compel, seeking an order directing plaintiff to
respond to defendants’ discovery demands and for an order extending the discovery
deadlines. Dkt. #40.
As detailed in the instant motion, on or about March 21, 2011, defendant
Erie Community College served interrogatories, a request for the production of
documents and a notice to take deposition. Dkt. #41, ¶ 4. As of the date of the filing of
the instant motion, June 24, 2011, defendants had not received a response from
plaintiff to the interrogatories or demand for documents. Id. at ¶ 5. Plaintiff’s deposition
was originally scheduled for June 3, 2011, but thereafter was mutually rescheduled to
June 17, 2011. Id. at ¶ 6. Later, plaintiff’s counsel requested that plaintiff’s deposition
be rescheduled from June 17, 2011 and proposed the date of June 22, 2011. Id.
Defendants’ counsel responded by e-mail to plaintiff’s counsel that June 22, 2011 was
not convenient and offered the alternative dates of June 24 or 27, 2011. Id.
Defendants’ counsel never received a response to her June 8, 2011 e-mail. Id.
Because she received no response to the interrogatories, demand for
documents and her June 8, 2011 e-mail, counsel for defendants had no alternative but
to file the instant motion seeking an order compelling plaintiff to respond to the
outstanding discovery demands and an extension of the existing Case Management
Order deadlines. Dkt. #40. The instant motion was filed on June 24, 2011 and that
same day, this Court issued a Text Order (Dkt. #42) directing that plaintiff’s response to
the motion was due by July 22, 2011 and that replies were due by August 5, 2011. To
date, plaintiff has not responded to the instant motion.
Plaintiff is directed to file her response to the instant motion to compel no
later than September 8, 2011. Failure to do so will result in a recommendation by this
Court that her action be dismissed with prejudice for failure to prosecute pursuant to
Fed. R. Civ. P. 41(b).
Buffalo, New York
August 19, 2011
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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