Ezeh v. McDonald

Filing 169

ORDER granting 158 Motion for Discovery and for Sanctions. Plaintiff is hereby Ordered to pay $100 to defendant for the cost of the court reporter in attendance for the deposition on January 26, 2017 which plaintiff failed to attend without adequate, timely notice. Such payment must be made in the form of a certified check mailed to defense counsel within fourteen (14) days of this Order. Plaintiff is to appear for the completion of his deposition which will take place on November 7, 2017 at 1:00 p.m. in the courtroom of the undersigned at 100 State Street, Rochester NY 14614. Any party unable to attend this deposition must notify the Court in writing no later than October 20, 2017. SO ORDERED. Signed by Hon. Jonathan W. Feldman on 09/20/2017. A copy of this Order has been mailed to pro se plaintiff Christopher Ezeh, 1097 North Goodman, Apt. 2-up, Rochester, NY 14609. (JKT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER EZEH,
Plaintiff,
DECISION & ORDER
13-CV-6563

V.

HON. ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS,
Defendant.

Factual Background

Pending before the Court is defendant's motion for sanctions.
Defendant filed this motion in response to plaint i f f 's most recent
failure to appear for his scheduled deposition.

See Docket# 158.

Defendant has asked the Court to dismiss the action or to otherwise
impose sanctions on plaintiff.

See Fed. R. Civ. P. 37(b),

(d).

The facts relevant to the present dispute are as follows.
Defendant originally noticed plaintiff's deposition for June 24,
2015 at 10:00 a.m.

See Notice (Docket# 88).

appear for his deposition.

On July 8,

Plaintiff did not

2015 defendant

motion to compel plaintiff to appear for a deposition.
107.

filed a
Docket#

On March 10, 2016, the Court granted defendant's motion to

compel and ordered that plaintiff appear for a deposition within
for ty-five days.

Docket# 135 at 3.

The parties rescheduled plaintiff's deposition for April 20,
2016 at 9:00 a.m.

Plaintiff appeared at the scheduled date and

time and was sworn in.

However, plaintiff uni laterally terminated

the deposition after approximately ninety minutes of questioning,

and defense counsel was unable to question plaintiff about a number
of relevant issues including alleged damages suffered.
(Docket# 154).

See Order

Plaintiff claimed that there were irregularities

that occurred during the deposition and that it was not conducted
in good faith.

See Docket# 150 at 35.

Defendant again filed a
Docket# 145.

motion to compel on May 4,

2016.

The Court granted that motion on November 21, 2016,

and in an effort to avoid further disputes, directed the deposition
to be conduct in the courtroom with the Court available to resolve
any issues that might arise.

The rescheduled deposition was to

occur on January 26, 2017 at 1:00 p.m. See Docket# 154.
On

January

plaintiff

25,

2017,

the

Court

received

requesting an adjournment of

a

letter

the deposition,

from

stating

that plaintiff would be on a group pilgrimage trip to Israel at
the scheduled time, and that the trip was scheduled and paid for
in October 2016.

See Docket # 156.

Plaintiff also cited to a

recent burglary at his apartment as a reason for his inability to
appear at the deposition.
2017,

Id .

The letter was dated January 20,

and was postmarked January 23, 2017.

Id.

On January 26,

2017, defense counsel appeared for the scheduled deposition along
with a court reporter.
2017,

Plaintiff did not appear.

the Court received a

On February 9,

letter from plaintiff entitled "my

return from Israel and readiness for deposition."

Docket# 157.

Defendant's instant motion followed.

Based on what

2

Docket# 158.

defense counsel describes

as plaintiff's

"vexatious behavior,"

including his refusal to meaningfully participate in the discovery
process, defendant seeks dismissal of plaintiff's complaint, or in
the alternative, the imposition of sanctions.

Discussion

The plaintiff's behavior in prosecution of

his

claims

documented in the record and need not be repeated here.

is

Suffice

it to say that plaintiff's conduct has made it difficult for both
defense counsel and the Court to advance this case to trial or
other

disposition.

plaintiff

for

Judge

engaging

in

Wolford

has

"frivolous

repeatedly

conduct"

admonished

and has

warned

plaintiff that if such conduct continues he risks sanctions or
injunctive penalties .
discovery,

See Docket## 77, 82, 144.

In supervising

this Court has also previously warned plaintiff that

should he refuse to appear for his deposition or fail to cooperate
in the discovery process, the Court would consider sanctions.

See

Docket# 135 at 3-4.
Any litigant in federal court,
must

abide

litigants

by c ourt
should

be

rules

including prose litigants,

and procedures.

afforded

latitude,

"Al though pro

they

'generally

se
are

required to inform themselves regarding procedural rules and to
comply with them,'" especially in civil litigation.
City of

Middletown,

71

F.3d

88,
3

92

(2d Cir.

1995)

Losacco v.
(internal

citations and quotations omitted).
2016,

plaintiff

was

directed

to

By Order entered November 21,
appear

for

his

January 26, 2017 at 1:00 p.m. in my courtroom.

deposition on

Waiting until the

day before the scheduled deposition to notify the Court that he
would be on a pilgrimage to Israel and unavailable for his court ordered

deposition

is

unacceptable

conduct.

"All

litigants,

including proses, have an obligation to comply with court orders,
and failure to comply may result in sanctions, including dismissal
with prejudice."
302

(2d Cir.

Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298,

2009)

(internal quotations and citations omitted).

Pursuant to Rule 37 of the Federal Rules of Civil Procedure, this
Court has authority to impose sanctions if a party fails to comply
with a discovery order .

See Fed. R. Civ. P. 37(b) (2) (A) (v)).

I

find that a sanction is appropriate here.
When imposing sanctions under Rule 37, a district court may
consider

factors

including

(1)

the

willfulness

compliant party or the reason for noncompliance;
of

lesser

sanctions;

noncompliance;

and

(4)

( 3)

the

duration

of

of

the

(2) the efficacy
the

period

See Doe v.

Airlines Inc., 672 F. App'x 48, 50 (2d Cir. Nov. 29, 2016)
Agiwal v. Mid Island Mortg.
failed

to

of

whether the non-compliant party had been

warned of the consequences of noncompliance.

has

non-

appear

for

Corp.,
two

555 F.3d at 301) .
scheduled

Del ta
(citing

Plaintiff

depositions,

and

unjustifiably terminated a deposition after only ninety minutes of
4

questioning by defense counsel.

He has received specific warnings

from this Court and Judge Wolford that his conduct in prosecuting
his case could result in sanctions.
of

the

history

of

the

Based on a full consideration

plaintiff's

conduct

in

this

action,

I

conclude that the imposition of costs is an appropriate sanction
for

plaintiff's

failure

to

appear

for

his

deposition.

"[P]reparation for the deposition necessitated considerable time
and effort .

[and]

[h] aving inconvenienced defense counsel .

it is plaintiff who should bear the costs incurred as a result
of his own failure to appear."

Nevarez v. Hunt, 288 F.R.D. 270,

271 (W.D.N.Y. 2013)
Accordingly, plaintiff is hereby ORDERED to pay $100 for the
cost of the court reporter in attendance for the deposition on
January 26, 2017 which plaintiff failed to attend without adequate,
timely notice.

See Ex. "E" attached to Def.'s Mot (Docket# 158-

2) at 27 (invoice from Depaolo Crosby Reporting Services for $100);
see

also Cole-Hoover v.

6070151

United States,

(W.D.N.Y. Oct. 17,

2016)

14-CV-429S(F),

2016

WL

(directing prose plaintiff to

reimburse defense counsel for cost of missed deposition).

Such

payment must be in the form of a certified check and mailed to
defense counsel within fourteen (14) days of entry of this Decision
and Order.

Further, this Order serves as the plaintiff's final warning
that he must appear for the completion of his deposition and may
5

not unreasonably object to or obstruct the questioning of defense
counsel.

Plaintiff's deposition shall take place on November 7,

2017 beginning at 1:00 p.m. in the courtroom of the undersigned,

at 100 State Street,

NY 14614.

Rochester,

Any party unable to

attend must submit to the Court in writing the reasons for their
inability to attend no later than October 20,
COMPLY

WITH

SANCTIONS

THIS

PURSUANT

DECISION
TO

AND

ORDER

FED.R.CIV.P

MAY

2017.

SUBJECT

37(b) (2) (A}

AND

FAILURE TO
PLAINTIFF

37(d} (1) (A),

INCLUDING DISMISSAL WITH PREJUDICE OF THIS ACTION.
SO ORDERED.

W. FELDMAN
ited States Magistrate Judge

Dated :

September 20, 2017
Rochester, New York

6

TO