Kozak v. Office Depot, Inc.

Filing 147

DECISION AND ORDER: Kozak's motion to stay the summary judgment briefing schedule, Docket Item 146, is DENIED. If necessary, the Court will set a briefing schedule on Kozak's objection, Docket Item 145, after Judge McCarthy's report an d recommendation on Office Depot's forthcoming motion for summary judgment, his report and recommendation on any renewed motion for sanctions, and any objections to those recommendations. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 8/11/2023. (WMH)

Case 1:16-cv-00943-LJV-JJM Document 147 Filed 08/11/23 Page 1 of 4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOANN R. KOZAK,
Plaintiff,
v.

16-CV-943-LJV-JJM
DECISION & ORDER

OFFICE DEPOT, INC.,
Defendant.
On November 23, 2016, the plaintiff, Joann Kozak, filed a complaint asserting
various employment discrimination claims against her former employer, Office Depot,
Inc. Docket Item 1. About two months later, this Court referred the case to United
States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. §
636(b)(1)(A) and (B). Docket Item 10. Since that time, the parties have engaged in
lengthy discovery.
On May 26, 2023, Kozak moved for sanctions under Federal Rule of Civil
Procedure 37(b) due to Office Depot’s alleged failure to comply with discovery orders.
Docket Item 134. More specifically, Kozak asked this Court to strike Office Depot’s
answer and to enter a default judgment against it. See id. In the alternative, Kozak
asked for an order extending discovery deadlines and compelling additional discovery
from Office Depot. See id. On June 16, 2023, Office Depot cross-moved for sanctions
against Kozak for, “among other things, . . . filing a motion to strike [Office Depot’s]
answer.” Docket Item 136 at 1 (capitalization removed).
On July 20, 2023, Judge McCarthy denied both motions “without prejudice to
possible renewal at a later time, if appropriate.” Docket Item 142 at 1. More

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specifically, Judge McCarthy reasoned that he could better assess whether sanctions
were warranted “in the context of a summary judgment motion” because the
significance of Office Depot’s alleged noncompliance would be clearer at that point.
See id. at 3-4.
Eight days after issuing that order, Judge McCarthy held a status conference with
the parties to “discuss and set [a] briefing schedule for dispositive motions.” Docket
Item 143. At that conference, counsel for both parties “agreed” that Office Depot’s
“motion for summary judgment shall be filed by September 13, 2023.” Docket Item 144
(July 28 text order reflecting that the motion deadline was “agreed to by counsel at
today’s telephonic conference”). 1 The parties also “agreed” that Kozak’s response
would be filed by October 25, 2023, and that Office Depot’s reply would be filed by
November 3, 2023. Id.
Six days after that, and despite the parties’ “agree[ment]” on that briefing
schedule, Kozak objected to Judge McCarthy’s decision and moved to stay the
summary judgment briefing schedule. Docket Items 145, 146. She says that Judge
McCarthy erred in “denying [Kozak’s] motion in its entirety.” Docket Item 145 at 4
(capitalization removed). And she says that “[s]taying the proceedings will [] allow [her]
to obtain a final ruling” on her motion for sanctions “prior to being forced to oppose
summary judgment without documents to which she is entitled and whose production
has been ordered.” Id. at 20.

Kozak does not contest that she did not agree to the briefing schedule in her
motion to stay the briefing schedule. See Docket Item 146.
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Kozak’s request for a stay of the “agreed”-upon briefing schedule is denied. 2 As
an initial matter, Judge McCarthy did not deny Kozak’s motion altogether. Instead, he
said—more than once—that he was denying that motion “without prejudice to possible
renewal.” Docket Item 142 at 4; see also id. at 1. So while Kozak lobs a litany of
challenges to Office Depot’s conduct in this case in arguing that her motion for
sanctions should be granted, see Docket Item 145, she remains free to renew those
arguments before Judge McCarthy, who indicated multiple times that he is willing to
entertain them, see Docket Item 142 at 1, 4.
And as Judge McCarthy noted, “[a]mong the factors to be considered in
determining what sanction is appropriate” under Rule 37 “for a willful failure to make
discovery [is] the importance of the information sought.” Docket Item 142 at 4 (quoting
Star Direct Telecom, Inc. v. Glob. Crossing Bandwidth, Inc., 2010 WL 3420741, at *4
(W.D.N.Y. July 23, 2010), adopted, 2010 WL 3420730 (W.D.N.Y. Aug. 23, 2010)). So
Judge McCarthy reasonably concluded that he could better assess whether sanctions
are warranted—especially the litigation-ending sanction of a default judgment—when he
has a clearer picture of how Office Depot’s purported noncompliance hinders Kozak’s
case. Finally, while Kozak argues that she should not have to oppose Office Depot’s
summary judgment motion without further discovery, Docket Item 145 at 20, the Federal
Rules of Civil Procedure contemplate that a party may oppose a motion for summary
judgment by “show[ing] by affidavit or declaration that, for specified reasons, [she]
cannot present facts essential to justify [her] opposition.” Fed. R. Civ. P. 56(d). And if a

The Court does not pass on the substance of Kozak’s objection to Judge
McCarthy’s decision at this time.
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party makes that showing, a court may “defer considering the motion[,] deny it,” or
“allow time to . . . take discovery.” Id.
For all those reasons, this Court does not agree that a stay of the summary
judgment briefing schedule “is appropriate and in the interest of judicial economy.”
Docket Item 145 at 20. Kozak’s motion to stay the briefing schedule therefore is denied.
CONCLUSION
For the reasons stated above, Kozak’s motion to stay the summary judgment
briefing schedule, Docket Item 146, is DENIED. If necessary, the Court will set a
briefing schedule on Kozak’s objection, Docket Item 145, after Judge McCarthy’s report
and recommendation on Office Depot’s forthcoming motion for summary judgment, his
report and recommendation on any renewed motion for sanctions, and any objections to
those recommendations.

SO ORDERED.
Dated: August 11, 2023
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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