Cole-Hoover v. United States of America

Filing 70

DECISION AND ORDER., Defendant's motion to compel (Dkt. 54) is GRANTED; Defendant's motion for sanctions (Dkt. 56) is DENIED without prejudice. Plaintiff is directed to provide responses to Defendant's discovery requests and to appear for a supplemental deposition in compliance with the January 23, 2016 and June 21, 2016 D&Os not later than 45 days after the filing of this Decision and Order. PLAINTIFF IS ADVISED THAT FAILURE TO COMPLY WITH THIS DECISION AND ORDER MAY SUBJECT PLAINTIFF TO SANCTIONS PURSUANT TO FED.R.CIV.P 37(b)(2)(A) AND 37(d)(1)(A), INCLUDING DISMISSAL WITH PREJUDICE OF THIS ACTION.. Signed by Hon. Leslie G. Foschio on 10/17/2016. (SDW)(Copy of Decision and Order mailed to Plaintiff)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GWENDOLYN COLE-HOOVER, as
Administratrix of the Estate of DAVID COLE,

DECISION
and
ORDER

Plaintiff,
v.

14-CV-429S(F)
UNITED STATES OF AMERICA,
Defendant.

APPEARANCES:

GWENDOLYN COLE-HOOVER, Pro Se
7557 Greenbush Road
Akron, New York 14001
WILLIAM J. HOCHUL, JR.
UNITED STATES ATTORNEY
Attorney for Defendant
MARY K. ROACH
Assistant United States Attorney, of Counsel
138 Delaware Avenue
Buffalo, New York 14202

JURISDICTION
This case was referred to the undersigned by order of Hon. William M. Skretny
dated October 29, 2014 (Dkt. 12) for all non-dispositive motions. It is presently before
the court on Defendant’s motion to compel, filed July 5, 2016 (Dkt. 54), and Defendant’s
motion for sanctions filed July 5, 2016 (Dkt. 56).

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BACKGROUND and FACTS1
In this FTCA action alleging malpractice based on Defendant’s treatment of
Plaintiff’s decedent, particularly Defendant’s failure to prevent a MRSA infection at
decedent’s brain surgery site, on December 29, 2015, Defendant moved to compel
Plaintiff’s responses to Defendant’s Interrogatory No. 20 requesting Plaintiff state the
amount of pecuniary loss and damages sustained by decedent’s next of kin as alleged
in paragraph 23 of the Complaint and provide responses to Defendant’s Document
Requests No. 4 and 6 relating to Interrogatory No. 20 (“Defendant’s discovery
requests”). Defendant also moved to compel Plaintiff to provide answers to Defendant’s
questions to Plaintiff at Plaintiff’s deposition seeking information regarding Plaintiff’s
consulting work and Plaintiff’s views regarding Plaintiff’s knowledge of the usual
prognosis for a patient, such as Plaintiff’s decedent, suffering intraventricular
hemorrhages (“Defendant’s deposition questions”) (collectively “Defendant’s motions”).
At Plaintiff’s deposition, Plaintiff objected to Defendant’s deposition questions. Plaintiff’s
counsel’s motion to withdraw was granted on January 14, 2016 (Dkt. 32) and Plaintiff’s
time to respond to Defendant’s motion was extended by 30 days; however, Plaintiff
failed to file any response to Defendant’s motion. In a Decision and Order, filed
February 23, 2016 (Dkt. 36) (“the February 23, 2016 D&O”), the court granted
Defendant’s motion finding Defendant’s Interrogatory No. 20, Documents Requests
Nos. 4 and 6, and Defendant’s deposition questions sought relevant unprivileged
information, and Plaintiff was therefore directed to provide responses to Defendant’s
discovery requests but, to date, has not done so. Dkt. 57 ¶ 25. Plaintiff did not appeal
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Taken from the papers and pleadings filed in this action
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the February 23, 2016 D&O. Despite Defendant’s attempts to schedule a supplemental
deposition of Plaintiff, Dkt. 57 ¶¶ 23-24, Plaintiff failed to communicate with Defendant
to schedule a convenient time for Plaintiff’s deposition.
On April 1, 2016, Defendant moved to compel Plaintiff to provide by a date
certain responses to Defendant’s discovery requests and to appear for the Plaintiff’s
supplemental deposition (“Defendant’s April 1, 2016 motion”). Dkt. 57 ¶ 26. Plaintiff’s
response to Defendant’s April 1, 2016 motion was due April 15, 2016, but to date
Plaintiff has not responded. In a Decision and Order filed June 21, 2016, the court
granted Defendant’s April 1, 2016 motion, Dkt. 52 (“the June 21, 2016 D&O”), and
directed Plaintiff serve responses to Defendant’s discovery requests not later than June
30, 2016, and appear and provide answers to Defendant’s questions in accordance with
the February 23, 2016 D&O at a supplemental deposition to be conducted not later than
July 20, 2016. In the June 21, 2016 D&O Plaintiff was advised that Plaintiff’s failure to
comply with the June 21, 2016 D&O may result in sanctions, including dismissal of this
action, pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 37(d)(1)(A). A copy of the June 21,
2016 D&O was sent to Plaintiff by first-class U.S. Mail to Plaintiff at her address at 7557
Greenbush Road, Akron, New York, 14001. To date, there is nothing in the court’s file
to indicate that such notice was returned to the court as undeliverable. On June 22,
2016, Defendant notified Plaintiff by letter sent to Plaintiff at the same address that
Plaintiff’s supplemental deposition as directed by the court was scheduled for July1,
2016 at the office of the United States Attorney for this district at 10:00 a.m., and
requested Plaintiff advise Defendant’s counsel immediately if that date was not
convenient. Dkt. 57 ¶ 9. No responsive communication from Plaintiff was received by
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Defendant’s attorney, and Plaintiff did not appear at the scheduled July 1, 2016
deposition. Dkt. 57 ¶¶ 10-12. As of July 6, 2016, Plaintiff had also failed to serve
responses to Defendant’s discovery requests as directed by the June 21, 2016 D&O.
Id. ¶ 13. Oral argument on Defendant’s motion was conducted August 10, 2016, at
which Plaintiff did not appear despite notice by the court. Dkt. 59.

DISCUSSION
It is well-established that in federal civil cases, pro se litigants are required to
comply with applicable discovery requirements, including a party’s obligation to give
deposition testimony, and failure to do so can result in sanctions, including, upon proper
notice, dismissal with prejudice, pursuant to Fed.R.Civ.P. 37 (“Rule 37”). See Agiwal v.
Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir. 2009) (citing Valentine v.
Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994)). However, imposition of
sanctions, particularly dismissal with prejudice under Rule 37, is within the court’s
discretion and will be sustained where the court finds willfulness, bad faith, or any
default by the party to be sanctioned for failure to provide discovery including
participation in a deposition. See Bobal v. Rensselaer Polytechnic Institute, 916 F.2d
759, 764 (2d Cir. 1990). Although in this case, Plaintiff’s failures to comply with
Defendant’s discovery requests and the court’s June 21, 2016 D&O which notified
Plaintiff of the potential consequences of Plaintiff’s continued non-compliance, the court
finds that Defendant’s motion should in “an abundance of caution” be denied to provide
Plaintiff “one last chance to fulfill [her] discovery obligations.” Agiwal, 555 F.3d at 301
(quoting Magistrate Judge Bloom’s order denying defendant’s request for dismissal of
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the action as a sanction for plaintiff’s repeated failures to appear for a deposition and
answer defendant’s interrogatories). Accordingly, while the court denies Defendant’s
motion for sanctions it does so without prejudice and with notice to Plaintiff that
Plaintiff’s failure to comply with the court’s Order may result in an order precluding
Plaintiff from submitting evidence at trial regarding the damages suffered by Plaintiff’s
decedent’s next of kin or that this action be dismissed with prejudice.2 However, as a
lesser sanction at this time, Plaintiff shall, pursuant to Rule 37(d)(3), reimburse
Defendant the costs of the court reporter engaged by Defendant to record Plaintiff’s July
1, 2016 deposition which Plaintiff failed, without excuse, to attend. See Agiwal, 555
F.3d at 301 (recalcitrant plaintiff ordered by presiding magistrate judge to pay court
reporter fee incurred by defendant for deposition plaintiff failed to attend). Plaintiff shall
make such payment to Defendant within 30 days of Defendant serving its statement for
such expense upon Plaintiff.

CONCLUSION
Based on the foregoing, Defendant’s motion to compel (Dkt. 54) is GRANTED;
Defendant’s motion for sanctions (Dkt. 56) is DENIED without prejudice. Plaintiff is
directed to provide responses to Defendant’s discovery requests and to appear for a
supplemental deposition in compliance with the January 23, 2016 and June 21, 2016
D&Os not later than 45 days after the filing of this Decision and Order. PLAINTIFF IS
ADVISED THAT FAILURE TO COMPLY WITH THIS DECISION AND ORDER MAY

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As the present referral order (Dkt. 7) limits the undersigned’s authority to non-dispositive matters,
Defendant’s further motion for the sanction of dismissal must be filed with Judge Skretny.
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SUBJECT PLAINTIFF TO SANCTIONS PURSUANT TO FED.R.CIV.P 37(b)(2)(A) AND
37(d)(1)(A), INCLUDING DISMISSAL WITH PREJUDICE OF THIS ACTION.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: October 17, 2016
Buffalo, New York

Any appeal of this Decision and Order must be taken by filing written
objection with the Clerk of Court not later than 14 days after service of this
Decision and Order in accordance with Fed.R.Civ.P. 72(a).

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