Frank v. Visions Multi Media Group-WUFO Radio LLC
Filing
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OPINION AND ORDER granting 23 Motion to Dismiss Defendant's answer and granting judgment to Plaintiff. Plaintiff shall submit an updated damages declaration to the Court within 30 days of the date of this order. Signed by Hon. William K. Sessions III on 9/24/2020. (CGJ)
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
ROBERT FRANK,
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:
:
:
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Plaintiff,
v.
VISIONS MULTI MEDIA GROUP – WUFO
RADIO LLC,
Defendant.
Case No. 1:17-CV-817
OPINION AND ORDER
(ECF 23)
Plaintiff Robert Frank brings this case against Visions
Multi Media Group-WUFO Radio LLC (“WUFO”), claiming that he was
discriminated against on the basis of his religion and his
gender when he was terminated from his job. His Complaint seeks
monetary damages for lost wages and benefits, compensatory
damages for mental anguish and emotional distress, punitive
damages, reinstatement, interest, costs and attorneys’ fees.
Currently before the Court is Frank’s motion to dismiss
WUFO’s answer and entry of judgment for Plaintiff. (ECF No. 23).
For the reasons that follow, the Court grants the motion to
dismiss WUFO’s answer, and grants to Plaintiff judgment on his
complaint.
BACKGROUND
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In the Complaint, Frank claims that he began working at
WUFO on January 4, 2016. During the course of his employment, he
was subjected to “numerous comments regarding his religion and
gender” by WUFO’s CEO/Operations Manager, acting General
Manager, and majority owner, Sheila Brown. Specifically, the
Complaint alleges that Ms. Brown: (1) told Frank he was not “God
like” and that God had told her he needed to perform in a
“Christian manner”; (2) would pray with people in the office and
pressured Frank to become “a member” of her religious
organization; (3) would often state her preference for working
with female staff; and (4) accused Frank of organizing a
“station takeover.” Frank was terminated on April 28, 2016.
On or about June 15, 2016, Frank filed a charge of unlawful
discrimination with the Equal Employment Opportunity Commission
(“EEOC”). On May 23, 2017 the EEOC issued a right to sue letter.
Frank filed suit in this Court on August 18, 2017. WUFO answered
the Complaint and filed affirmative defenses. (ECF No. 4). The
parties appeared for a scheduling conference, and a pretrial
case management order was issued on April 2, 2018. On April 30,
2018, Frank filed a motion to dismiss WUFO’s answer based upon
opposing counsel’s failure to comply with the case management
order. (ECF No. 8). On May 17, 2018, the Court issued a text
order setting a response deadline of June 18, 2018, and a reply
deadline of July 2, 2018. The Court went on to state that should
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oral argument be necessary, a hearing would be scheduled at a
later date. On June 25, 2018, with no response having been
filed, the Court granted as unopposed Frank’s motion to dismiss
defendant’s answer. (ECF No. 10).
On July 10, 2018, Frank applied to the Court to enter
default against WUFO pursuant to Federal Rule of Civil Procedure
(FRCP) 55. (ECF No. 11). In support of his application, Frank
submitted an affidavit in which he stated that WUFO had failed
to provide mandatory disclosures or comply with mandatory ADR
provisions. The clerk’s office entered a default on July 11,
2018. (ECF No. 12). On October 16, 2018, Frank filed a motion
for default judgment. Defendant submitted a response to the
motion for default judgment, arguing that due to his heavy trial
calendar counsel had “inadvertently failed” to send plaintiff’s
counsel voluntary discovery. Defendant went on to state that
this inadvertent failure did not prejudice plaintiff, nor was it
“willful or intentionally done to defy this Court’s Order or to
protract this litigation.”
On August 22, 2019, the Court issued an order denying
Frank’s motion for default judgment. (ECF No. 17). The Court
ruled that Defendant’s answer would be due within 30 days, that
discovery must be concluded by January 20, 2020 and that motions
must be made by February 21, 2020. The Court found that Frank
was entitled to attorney’s fees for time spent on the default
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judgment requests and entry. Defendant filed an answer on
September 21, 2019.
On February 21, 2020, Frank filed a motion to dismiss
defendant’s answer and grant judgment to Plaintiff. (ECF No.
23). Frank claims that WUFO never provided the mandatory
disclosure required by FRCP 26(a)(1). Frank asks that he be
“awarded judgment against Defendant on both liability and for
the damages previously put forth before this Court in
Plaintiff’s Declaration of October 12, 2018 (now to be amended
with any and all additional damages that have accrued since the
prior submission), plus all of Plaintiff’s attorney’s fees
herein.” (ECF No. 23-1).
WUFO filed a response to the motion to dismiss. (ECF No.
25). Defense counsel argues that Plaintiff had received all of
the documents he was entitled to when Frank took possession of
his work file, that Plaintiff has unclean hands regarding
disclosure, and that Plaintiff “knows exactly who those
witnesses are and where they are located.” Id. WUFO asks the
Court to allow the matter to proceed to trial.
DISCUSSION
FRCP Rule 26(a) states that “[e]xcept as exempted by Rule
26(a)(1)(B) or as otherwise stipulated or ordered by the court,
a party must, without awaiting a discovery request, provide to
the other parties” the information listed out in Rule
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26(a)(1)(A)(i)-(iv). Fed. R. Civ. P. 26(a)(1)(A). This action
does not fall under one of the categories exempted by Rule
26(a)(1)(B).
FRCP Rule 37(c)(1) provides that “if a party fails to
provide information or identify a witness as required by Rule
26(a),” the court may, “on motion and after giving an
opportunity to be heard,” impose appropriate sanctions
“including any of the orders listed in Rule 37(b)(2)(A)(i)(vi).” Fed. R. Civ. P. 37(c)(1). Under Rule 37(b)(2)(A)(v), a
court may dismiss “the action or proceeding in whole or in part”
and under Rule 37(b)(2)(A)(vi), a court may render “a default
judgment against the disobedient party.” Fed. R. Civ. P.
37(b)(2)(A)(v)–(vi).
District courts have discretion to impose the severe
sanction of dismissal or default judgment against parties who
fail to disclose under Rule 26. See, e.g., Design Strategy, Inc.
v. Davis, 469 F.3d 284, 294 (2d Cir. 2006) (“A district court
has wide discretion to impose sanctions, including severe
sanctions, under Federal Rule of Civil Procedure 37, and its
ruling will be reversed only if it constitutes an abuse of
discretion”); Brennan-Centrella v. Ritz-Craft Corp., 788 F.
App’x 799, 803 (2d Cir. 2019) (“Federal Rule of Civil Procedure
37 permits the court to sanction a party that fails to make the
disclosures that Federal Rule of Civil Procedure 26 requires.”)
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(citing Fed. R. Civ. P. 37(c)(1)); Owen v. No Parking Today,
Inc., 280 F.R.D. 106, 110 (S.D.N.Y. 2011) (“These sanctions
mentioned in Rule 37(c)(1)(C) include orders ‘(i) directing that
the matters embraced in the order or other designated facts be
taken as established for purposes of the action, as the
prevailing party claims; … (iii) striking pleadings in whole or
in part; …[and] (vi) rendering a default judgment against the
disobedient party.’ Fed. R. Civ. P. 37(b)(2)(A).”).
“‘[D]ismissal under Fed. R. Civ. P. 37 is a drastic remedy
that should be imposed only in extreme circumstances,’ usually
after consideration of alternative, less drastic sanctions.”
John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d
1172, 1176 (2d Cir. 1988) (citation and internal quotation marks
omitted). “Severe sanctions are justified, however, when the
failure to comply with a court order is due to willfulness or
bad faith, or is otherwise culpable.” Daval Steel Prods. v. M/V
Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991); see National
Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,
643, 96 S. Ct. 2778, 2781 (1976) (per curiam) (availability of
severe sanctions, such as outright dismissal, necessary both to
penalize parties whose conduct may warrant such a sanction and
to deter others from similar conduct); see also Burrell v. AT&T
Corp., 282 F. App’x 66, 67-68 (2d Cir. 2008) (finding no abuse
of discretion where district court dismissed complaint for
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discovery abuse after the party was on notice of the possibility
of dismissal and had suffered lesser sanctions but continued to
obstruct discovery and fail to comply with court orders).
Such a severe sanction is warranted here. Defendant’s
continued failure to provide Rule 26(a) disclosures and
Defendant’s contention that mandatory disclosure is unnecessary
because Plaintiff “is well aware of the two witnesses who
carried out his termination” is an abuse of the judicial
process. This Court has already acted once to excuse a lack of
action on the part of defense counsel when, in its order on
August 21, 2019, it set aside the entry of default for good
cause. At that time, the Court saw fit to award the lesser
sanction of attorneys’ fees to Plaintiff. This small sanction,
however, was not enough to deter Defendant. Despite the Court’s
order that discovery conclude by January 20, 2020, Defendant
failed to provide disclosures by that deadline and still has not
done so. This time, Defendant’s persistent lack of disclosure
has no excuse.
Accordingly, the Court grants Plaintiff’s motion to dismiss
Defendant’s answer and grants default judgment to Plaintiff.
Plaintiff has asked for the damages previously put forward in
his Declaration of October 12, 2018 “to be amended with any and
all additional damages that have accrued since the prior
submission, plus all of Plaintiff’s attorney’s fees herein.”
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(ECF No. 23-1). Plaintiff shall submit a declaration detailing
the total amount of damages to the Court within 30 days of the
date of this order.
CONCLUSION
For the reasons set forth above, the Court grants
Plaintiff’s motion to dismiss Defendant’s answer and grants
judgment to Plaintiff. Plaintiff shall submit an updated damages
declaration to the Court within 30 days of the date of this
order.
DATED at Burlington, Vermont, this 24th day of September,
2020.
/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge
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