Martin v. Performance Trans. Inc. et al
Filing
84
DECISION AND ORDER Defendants' motion to dismiss the complaint pursuant to Rule 37(d) of the Federal Rules of Civil Procedure 79 is granted, and the complaint is dismissed. Signed by Hon. David G. Larimer on 10/4/2022. (KAH)This was mailed to: Plaintiff Anthony Martin.Clerk to Follow up
Case 6:17-cv-06471-DGL-MJP Document 84 Filed 10/04/22 Page 1 of 5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
ANTHONY MARTIN,
DECISION AND ORDER
Plaintiff,
17-CV-6471L
v.
PERFORMANCE TRANS. INC., et al.,
Defendants.
___________________________________________
Plaintiff Anthony Martin brings this pro se action against five corporations and one
individual, alleging a claim of unlawful retaliation under 42 U.S.C. § 1981.1 Martin’s claim
arises out of defendants’ decision to stop using Martin as one of their truck drivers, allegedly in
retaliation for his having complained of unlawful discrimination.2
Defendants have moved to dismiss the complaint pursuant to Rule 37 of the Federal
Rules of Civil Procedure, based on plaintiff’s refusal to participate in discovery and his
non-compliance with Court orders. (Dkt. 79.) Plaintiff has filed a response in opposition to the
motion. (Dkt. #81.) For the reasons that follow, defendants’ motion is granted and the complaint
is dismissed with prejudice.
1
When the complaint was filed, plaintiff was represented by counsel. On November 6, 2018, the Court
granted counsel’s motion to withdraw (Dkt. #29, #33). Since then, plaintiff has prosecuted the action pro se.
2
There has been some dispute in this case about whether Martin worked for defendants as an employee or
an independent contractor, but that is not germane to the issues before me.
Case 6:17-cv-06471-DGL-MJP Document 84 Filed 10/04/22 Page 2 of 5
DISCUSSION
Rule 37 of the Federal Rules of Civil Procedure “governs the district court’s procedures
for enforcing discovery orders and imposing sanctions for misconduct.” World Wide Polymers,
Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 158 (2d Cir. 2012). Subsection (b)(2)(A)
provides that “[i]f a party ... fails to obey an order to provide or permit discovery, including an
order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just
orders.” Rule 37(b)(2)(A) authorizes a range of sanctions, including “dismissing the action or
proceeding in whole or in part” and “rendering a default judgment against the disobedient party.”
Courts look to four non-exhaustive factors when considering whether to impose sanctions
under Rule 37: “(1) the willfulness of the non-compliant party or the reason for noncompliance;
(2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance[;] and
(4) whether the non-compliant party had been warned of the consequences of noncompliance.”
Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (internal quotation marks,
alteration, and citation omitted). “[T]hese factors are not exclusive, and they need not each be
resolved against” a party to warrant sanctions. S. New England Tel. Co. v. Glob. NAPs Inc., 624
F.3d 123, 144 (2d Cir. 2010).
Applying those factors here, I find that dismissal of the complaint is a warranted and
appropriate sanction to impose against plaintiff. In their memorandum of law and other papers
filed in support of their motion (Dkt. #79), defendants have well laid out the background events
supporting that conclusion.
-2-
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Martin failed to appear for a noticed deposition in November 2021. Defendants moved
for sanctions, and the Court scheduled a hearing on the motion for November 29, 2021. Martin
again failed to appear.
The Court then issued a Decision and Order (Dkt. #64) directing defendants to submit a
bill of costs in connection with the previously scheduled deposition. In that decision, the Court
noted that plaintiff had twice “fail[ed] to appear for a significant event in his case, and he failed
to respond to the motion for sanctions, ... and failed to appear for the argument of the sanctions
motion .... .” The Court expressly warned Martin that “further failures to comply with the
Court’s orders, or a failure to appear for deposition, may result in dismissal of the case.”
Id. at 4 (boldface in original).
After defendants submitted their bill of costs, on March 21, 2022 the Court issued a
Decision and Order (Dkt. #70) directing plaintiff to issue a check to defendants’ counsel within
thirty days, in the amount of $2104.66. According to defendants, Martin has not paid one dollar
of that amount.
In June of this year, defense counsel sent Martin a notice to appear for a remote (video)
deposition. Martin refused to accept a Certified Mail copy of the notice, but a copy was
delivered to him by regular mail. He did not appear for the deposition or respond to the notice.
In his response to defendants’ present motion (Dkt. #81), Martin states that he is “open
for a deposition with [defendants’ attorney] Frank W. Miller,” but he adds, “I don’t want Frank
to call me or write me with any date and time” because in plaintiff’s opinion Miller has not been
“fair” to him. Martin also intimates that Magistrate Judge Mark W. Pedersen, who awarded the
bill of costs, has “take[n] all the disadvantage [sic] of” him in some way, and that Judge Pedersen
-3-
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gave Miller “a lot of change,” by which he presumably means the money awarded in the bill of
costs order. Id.3
Based on these facts, it is evident that plaintiff has willfully refused to comply with
deposition notice and court orders, for no good reason. Lesser sanctions have been imposed
without effect; Martin has not complied with the prior sanctions order, and it obviously had no
deterrent effect, since he subsequently failed again to appear for a deposition. This pattern of
non-compliance has now continued since November of last year. Finally, as explained above,
Martin was expressly warned in no uncertain terms that his complaint might be dismissed if such
behavior continued.
In short, all four of the relevant factors set forth above point to the appropriateness of
sanctions, and specifically dismissal. Plaintiff has been given several chances to participate in
discovery, and his response has been essentially to refuse to deal with defendants’ lawyer and to
imply, without foundation, that the Court and defense counsel are working in cahoots against
him. Under such circumstances, no sanction short of dismissal is likely to have any efficacy.
The complaint is therefore dismissed with prejudice. See Torres v. Levesque, 52 F.App’x 155,
156 (2d Cir. 2002) (district court did not abuse its discretion when it dismissed case based on its
conclusion that pro se plaintiff’s explanation for his failure to comply with the court’s order to
submit to a deposition was insufficient); McDonald v. Head Criminal Court Supervisor Officer,
850 F.2d 121, 124 (2d Cir. 1988) (affirming district court’s dismissal of pro se plaintiff’s lawsuit
after district court warned that failure to cooperate with a deposition risked dismissal).
3
Martin previously moved for an order of recusal based on Judge Pedersen’s award of the bill of costs,
which the Magistrate Judge denied. (Dkt. #75.)
-4-
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CONCLUSION
Defendants’ motion to dismiss the complaint pursuant to Rule 37(d) of the Federal Rules
of Civil Procedure (Dkt. #79) is granted, and the complaint is dismissed.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 4, 2022.
-5-
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