Ezeh v. McDonald
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
DECISION & ORDER
HON. ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS,
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),
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
motion to compel plaintiff to appear for a deposition.
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.
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
motion to compel on May 4,
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.
requesting an adjournment of
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.
The letter was dated January 20,
and was postmarked January 23, 2017.
On January 26,
2017, defense counsel appeared for the scheduled deposition along
with a court reporter.
Plaintiff did not appear.
the Court received a
On February 9,
letter from plaintiff entitled "my
return from Israel and readiness for deposition."
Defendant's instant motion followed.
Based on what
defense counsel describes
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.
The plaintiff's behavior in prosecution of
documented in the record and need not be repeated here.
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
plaintiff that if such conduct continues he risks sanctions or
injunctive penalties .
See Docket## 77, 82, 144.
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.
Docket# 135 at 3-4.
Any litigant in federal court,
by c ourt
including prose litigants,
"Al though pro
required to inform themselves regarding procedural rules and to
comply with them,'" especially in civil litigation.
citations and quotations omitted).
By Order entered November 21,
January 26, 2017 at 1:00 p.m. in my courtroom.
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
including proses, have an obligation to comply with court orders,
and failure to comply may result in sanctions, including dismissal
Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298,
(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)).
find that a sanction is appropriate here.
When imposing sanctions under Rule 37, a district court may
compliant party or the reason for noncompliance;
(2) the efficacy
See Doe v.
Airlines Inc., 672 F. App'x 48, 50 (2d Cir. Nov. 29, 2016)
Agiwal v. Mid Island Mortg.
whether the non-compliant party had been
warned of the consequences of noncompliance.
555 F.3d at 301) .
unjustifiably terminated a deposition after only ninety minutes of
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.
Based on a full consideration
conclude that the imposition of costs is an appropriate sanction
"[P]reparation for the deposition necessitated considerable time
and effort .
[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,
See Ex. "E" attached to Def.'s Mot (Docket# 158-
2) at 27 (invoice from Depaolo Crosby Reporting Services for $100);
also Cole-Hoover v.
(W.D.N.Y. Oct. 17,
(directing prose plaintiff to
reimburse defense counsel for cost of missed deposition).
payment must be in the form of a certified check and mailed to
defense counsel within fourteen (14) days of entry of this Decision
Further, this Order serves as the plaintiff's final warning
that he must appear for the completion of his deposition and may
not unreasonably object to or obstruct the questioning of defense
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,
Any party unable to
attend must submit to the Court in writing the reasons for their
inability to attend no later than October 20,
37(b) (2) (A}
37(d} (1) (A),
INCLUDING DISMISSAL WITH PREJUDICE OF THIS ACTION.
ited States Magistrate Judge
September 20, 2017
Rochester, New York
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