Shapiro v. Roger Williams University et al

Filing 147

MEMORANDUM AND ORDER dismissing this case with prejudice (granting RWU's 112 Motion for Sanctions; 126 Motion for Final Judgment; 127 Motion to Dismiss; 132 Motion for Final Judgment. All other pending motions are terminated as moot.) So Ordered by Chief Judge Mary M. Lisi on 8/17/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JOSHUA BARRETT SHAPIRO,
Plaintiff
v.

C.A. No. 011-140-ML

ROGER WILLIAMS UNIVERSITY, et al.,
Defendants
MEMORANDUM AND ORDER
The

plaintiff

(“Shapiro”),

in

this

case,

Joshua

Barrett

Shapiro

has brought claims of (1) breach of contract, (2)

breach of the covenant of good faith and fair dealing, (3) fraud,
(4) deceit, (5) negligent misrepresentation, and for (6) punitive
damages

against

Roger

Williams

University

(“RWU”

or

the

“University”), where Shapiro was a student from the 1999 summer
term until his suspension on October 10, 2001. This Court has
dismissed Shapiro’s claims against several former and current RWU
employees

in

allegations

their

that

individual

these

capacity

individuals

acted

because
in

Shapiro’s

their

personal

capacities were found to be entirely unsupported. Shapiro v. Roger
Williams University, C.A. No. 011-140-ML, 2012 WL 1565282 (D.R.I.
April 30, 2012).

The matter is before the Court now on four

separate motions by RWU seeking sanctions and/or dismissal of the
case for

Shapiro’s

failure

to

appear

at

his

own

deposition,

disobedience with respect to various Court orders, and for other
alleged misconduct by Shapiro.
1

I. Factual Background and Procedural History
The events leading to this litigation, the extensive discovery
activity, and the inordinately convoluted motion practice between
the parties has been set forth in great detail in this Court’s
April 30, 2012 Memorandum and Order, see Shapiro v. Roger Williams
University, C.A. No. 011-140-ML, 2012 WL 1565282 (D.R.I. April 30,
2012), as well as the many orders of Magistrate Judge Martin. For
ease of reading, the Court sets forth a summary of the facts and
procedural history of this action.
On October 10, 2001, following a University disciplinary
meeting, an administrative hearing, and a judicial review by an RWU
Hearing

Officer,

violations

of

Shapiro

RWU’s

was

conduct

suspended
code.

from

Shapiro,

RWU
who

for
had

several
pled “in

violation” to some of the charges but had disputed others, was
given the option of returning to the University during the 2002
summer term, provided he complied with certain conditions set by
RWU. Shapiro’s appeal of his suspension was denied and he never
sought re-admittance to RWU.
Nearly

ten

years

later,

Shapiro

filed

a

complaint

(the

“Complaint”) against RWU and several former and current University
employees, charging, inter alia, that he was “expelled”1 from RWU

1

Throughout this litigation, Shapiro has maintained that he was
“expelled” from the University, whereas RWU takes the position that
Shapiro was “suspended.”
2

without proper notice or hearing.

Shapiro sought damages in the

amount of $2.5 million and various forms of injunctive relief.
Shapiro also alleged that the University employees named in his
suit acted personally and, in essence, conspired to expel him from
RWU,

a

contention

unsupported.

which

this

Court

rejected

as

entirely

The Court dismissed all claims asserted against the

defendants in their individual capacity. (Docket # 77).
The parties then engaged in discovery, in the course of which
Shapiro filed nearly two dozen motions, including, inter alia,

a

request to have the Court execute personal service on one of the
individual defendants now residing in Vietnam (Docket # 17), and a
request to unseal documents which RWU had filed under seal because
they were part of Shapiro’s confidential student file. (Docket #
55).
In November 2011, when RWU requested Shapiro’s answers to
interrogatories,

it

erroneously

submitted

30

interrogatories

instead of the 25 allowed by the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 33(a)(1).

After Shapiro objected, RWU struck

five of the interrogatories; nevertheless, Shapiro refused to
answer any of them. RWU’s amended motion to compel (Docket # 82)
was granted, subject to imposition of a confidentiality requirement
(Docket # 104); however, to date Shapiro has not provided responses
as ordered.
Likewise, Shapiro was ordered to provide certain documents

3

related, inter alia, to the damages he alleged in this litigation,
see June 7, 2012 Order (Docket # 114). Shapiro has not provided the
requested documents as ordered.
Discovery

was

also

impeded

throughout

because

Shapiro

identified himself as a California resident and insisted that all
documents in this litigation be sent to the California address of
his father’s law firm. In addition, Shapiro provided only the law
firm’s telephone number as his contact information. As disclosed by
Shapiro’s father at his deposition, Shapiro actually resides in
Virginia and any mail or telephone messages received in California
must be separately forwarded to Shapiro.
On May 22, 2012, Shapiro failed to appear at a hearing on his
Motion for Protective Order (Docket # 80). In a motion seeking to
reschedule the hearing - which arrived at the Court after the
hearing had been conducted - Shapiro alleged that he had received
notice of the hearing only four days prior.

(Docket # 96).

The

hearing was rescheduled for June 6, 2012 and the parties were
permitted to attend that hearing via telephone (Docket # 99).

The

Magistrate Judge assigned to this case also ordered Shapiro to
confirm his address and contact telephone number in writing to the
Clerk and to provide RWU with a copy of that confirmation. May 22,
2012 Order at 2 (Docket # 98).

Notwithstanding the information

provided by his father regarding Shapiro’s residency in Virginia,
Shapiro continues to insist on using the contact information for

4

his father’s law firm as his own.
A hearing on four of Shapiro’s motions and on one motion filed
by RWU was scheduled for June 6, 2012.

Shapiro’s deposition was

scheduled for June 1, 2012, of which he was notified by first class
mail sent to the California address.

On May 29, 2012, three days

before his scheduled deposition, Shapiro filed an “Emergency”
Motion for Protective Order (Docket # 106), seeking to have the
deposition conducted either in California or by electronic means.
Shapiro contended that having to travel to Rhode Island “would
cause an undue burden and expense due to the cost . . . to travel
and stay for perhaps multiple days of deposition.”
Motion at 1.

2

Emergency

Shapiro argued that “[h]aving committed to pursuing

this action, the defendants’ [sic] cannot now complain of the
relatively minor cost of funding their attorney’s travel from Rhode
Island to California to take the Plaintiff’s deposition.” Id. at 6.
Shapiro pointed out that he had traveled to Rhode Island twice for
this

litigation.

He

also

stated

that

“but

for

finding

a

surprisingly affordable rate for the parties [sic] June 06, 2012
hearing, he would not have been able to afford to attend this
hearing.”

Id.

at

7.

At

a

telephonic

hearing

on

Shapiro’s

“Emergency” Motion on May 31, 2012, Shapiro disclosed, for the

2

The Federal Rules of Civil Procedure, in which Shapiro appears
to be well-versed, provide that “[u]nless otherwise stipulated or
ordered by the court, a deposition is limited to 1 day of 7 hours.”
Fed. R. Civ. P. 30(d)(1).
5

first

time,

that

he

had

canceled

the

airline

ticket

he

had

purchased for the June 6, 2012 hearing after obtaining permission
to attend that hearing by telephone.
Because Shapiro’s “Emergency” Motion had been filed only
shortly before his scheduled deposition, the Magistrate Judge found
that requiring Shapiro to attend his deposition on June 1, 2012
would be impossible.

Therefore, the Magistrate Judge offered

Shapiro the opportunity to select a date for his deposition during
the week of June 18, 2012.

Shapiro, however, refused to select a

date. RWU, on its part, stated that Shapiro’s deposition would not
exceed seven hours and would likely take only two to three hours.
The Magistrate Judge then set the date for the deposition for June
21, 2012 in Rhode Island. (Docket # 108).
also

advised

Shapiro

that,

if

he

failed

The Magistrate Judge
to

appear

for

his

deposition, he would be subject to sanctions, including dismissal.
June 1, 2012 Order (Docket # 108). Because Shapiro insisted that
his father’s law firm address was the only option to contact him,
he was also advised to be in daily contact with the law firm in
order to keep up-to-date with any developments in the case.
On June 12, 2012, Shapiro filed an appeal (Docket # 119) of
the Order (Docket # 108) scheduling his deposition on June 21,
2012. Essentially, Shapiro reiterated that traveling to Rhode
Island from California constituted a financial hardship for him
which outweighed the costs to RWU of having its counsel travel to

6

California. Shapiro also suggested that “Defendants implicitly
represented that they had the ability to fund the litigation,
either through the aggregation of their own resources or on the
basis that defendants’ counsel would advance the costs of the
lawsuit.” Appeal Mem. at 11 (Docket # 119).

Shapiro’s appeal was

still pending when he failed to appear for his deposition on June
21, 2012. Shapiro did not file a motion to stay or a motion for a
protective order with respect to his scheduled deposition.
On June 20, 2012, Shapiro filed a Petition for Writ of
Mandamus in the United States Court of Appeals for the First
Circuit, seeking to set aside various filings of the defendants
(and several orders issued by this Court) on the basis that they
were not properly served on Shapiro. In re: Joshua Barrett Shapiro,
No. 12-1775.

Shapiro suggested, inter alia,

that notification of

service by electronic means was not permitted unless the recipient
consented in writing. Shapiro Brief at 10-11. Although Shapiro had
been granted pro se status and waiver of all PACER fees, Shapiro
also insisted that RWU’s motions should have been served on him by
conventional means as well, specifically via regular mail to the
California address. Id. at 11-12. After Shapiro’s petition for a
writ of mandamus was denied on July 9, 2012, he filed a petition
for a rehearing en banc on July 25, 2012.

On August 2, 2012, the

petition was denied as well. In re: Joshua Barrett Shapiro, No. 121775 (1st Cir. Aug. 2, 2012).

7

In the interim, RWU filed two motions (Docket # 112, # 126),
in

which

they

sought

the

imposition

of

sanctions,

including

dismissal, for Shapiro’s conduct during the litigation. Following
Shapiro’s failure to attend his deposition on June 21, 2012, RWU
filed a motion to dismiss the complaint, seeking entry of final
judgment (Docket # 127). RWU filed a fourth motion (Docket # 132)
after Shapiro failed to produce documents as required by Court
order issued June 7, 2012 (Docket #114).
Since the May 31, 2012 hearing, Shapiro has filed a motion for
leave to file a second amended complaint (Docket # 124), a motion
in limine to exclude testimony or evidence regarding his financial
records (Docket # 140), a motion for reconsideration (Docket # 141)
regarding certain documents that were returned to Shapiro because
they contained personal identifiers, see Order (Docket # 129), and
a motion to compel discovery and for sanctions (Docket # 142).
II.

RWU’s Motions

1. Motion for Imposition of Sanctions (Docket # 112)
RWU seeks sanctions against Shapiro pursuant to Fed. R. Civ.
P. 37(d)(1)(A)(ii)3.

In its motion, RWU generally refers to

3

That subsection of Rule 37

provides:

(d) Party's Failure to Attend Its Own Deposition, Serve Answers to
Interrogatories, or Respond to a Request for Inspection.
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the action is
8

various obstacles it has faced in communicating with the plaintiff
and moving the litigation forward in an expeditious manner:
(A) RWU contends that Shapiro has refused to provide an e-mail
address to the Court on the ground that he did not use one,
notwithstanding the fact he had been exchanging e-mails with RWU’s
counsel for months and up to the date of this motion. Shapiro also
identified his e-mail in connection with a motion by which he
sought to vacate a number of Court orders on the ground that he had
not received them or had only been given notice of RWU’s motions by
e-mail.
(B)

In

addition,

Shapiro

consistently

represented

the

California address and telephone number of his father’s law office
as his own, insisting that all documents were to be sent to him at
that address. According to RWU, Shapiro is, and has been, residing
in

Virginia

Beach,

Virginia.

Mitchell

Shapiro,

his

father,

described at his deposition how all mail related to this litigation
was received at his office and then forwarded to Shapiro’s Virginia
address.

Similarly, RWU’s counsel was compelled to call Mitchell

Shapiro’s office repeatedly in order to have messages delivered to

pending may, on motion, order sanctions if:
***
(ii) a party, after being properly served with interrogatories
under Rule 33 or a request for inspection under Rule 34, fails to
serve its answers, objections, or written response.
9

Shapiro by phone call or e-mail.
(C) In appealing the Court’s ruling on RWU’s motion for a
protective

order,

Shapiro

asserted

that

RWU’s

counsel

never

conferred with him prior to filing its motion. According to RWU,
Shapiro sought to discover certain documents which identified other
students who had complained about his conduct at the University.
Following a Rule 16 conference and a mediation session at this
Court on September 26, 2011, Shapiro suggested that, if RWU agreed
not to call those students at trial, he would consider foregoing
those documents. RWU’s counsel rejected the suggestion and advised
Shapiro that a motion for protective order would be filed. The
motion for protective order was filed on October 20, 2011, (Docket
# 27), well after those discussions had taken place.
(D) At the beginning of this litigation, Shapiro was granted
leave

to

proceed

in

forma

pauperis

and

he

also

received

an

exemption from PACER fees, which enabled him to access the Court’s
docket from any computer, e.g., at a public library, without
incurring any costs. Nevertheless, Shapiro has repeatedly asserted
that he did not receive the Court’s standard pretrial order, and he
has offered this alleged omission as a basis for seeking relief
from the Court. See e.g. Shapiro’s Motion for Enlargement of Time
to Provide Expert Disclosures and Modification of Scheduling Order
(Docket # 54)(asserting that he was unaware of the scheduling order
until he contacted the clerk’s office three weeks before filing the

10

motion), and Shapiro’s Motion for In Camera Review (Docket # 93)
(contending that he inadvertently mailed confidential documents to
his expert because he never received the Standard Pretrial Order).
(E) In addition, (1) RWU points to Shapiro’s refusal to
provide answers to interrogatories; (2) RWU alleges that Shapiro’s
appeal from the Magistrate Judge’s order denying Shapiro’s motion
for a protective order was frivolous; and (3) Shapiro failed to
appear at the May 22, 2012 Hearing on Shapiro’s motion for a
protective order.4
Shapiro’s response to RWU’s Motion for Imposition of Sanctions
was due on June 22, 20125; no objection thereto has been filed to
date.
2. Motion for Entry of Final Judgment (Docket # 126)
This

motion

(b)(2)(A)(v)

and

is

brought

(vi)6.

RWU

pursuant
seeks

to

Fed.

dismissal

of

R.

Civ.

P.

37

the Complaint

4

On that occasion, Shapiro had been notified of the hearing by
first class mail sent to the California address he had provided to
the Court. Shapiro’s motion to set aside the notice of hearing and
to reschedule the hearing was not received until after the hearing
had concluded. (Docket # 96).
5

The date on which responses to a filing are due is noted on
the case docket; as previously noted, Shapiro had free access to
the docket after PACER fees were waived at the beginning of this
litigation.
6

Subsection (b) of Rule 37 provides:
(A)For Not Obeying a Discovery Order. If a party or a party's
officer, director, or managing agent--or a witness designated under
11

because Shapiro failed to provide answers to RWU’s interrogatories
as directed in a May 24, 2012 Order Granting Amended Motion to
Compel and Imposing Confidentiality Requirement. (Docket #104).
That particular order compelled Shapiro to provide answers to RWU’s
interrogatories within 21 days of its filing, while setting strict
conditions for RWU’s disclosure of Shapiro’s social security number
to a third party in connection with this litigation.

The order

makes reference to Shapiro’s “wholesale opposition to providing any
information,” notwithstanding his serious claims against RWU and
his demand for $2.5 million in damages.

Order at 1 n.1.

Shapiro’s response to this motion was due July 9, 2012; no
objection thereto has been filed to date.
3. Motion to Dismiss and for Entry of Final Judgment (Docket
# 127)
RWU seeks to dismiss the Complaint on the ground that Shapiro
was ordered by this Court to appear in Rhode Island for his
deposition at 10:00 a.m. on Thursday, June 21, 2012, see Order
Granting in Part Emergency Motion and Re-Scheduling Plaintiff’s
Deposition issued by Magistrate Judge Martin on June 1, 2012

Rule 30(b)(6) or 31(a)(4)--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. They may include the following:
***
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party;
12

(Docket # 108), but that Shapiro failed to appear.7

The Order

states that notice of the deposition was mailed to Shapiro on May
9, 2012 and that, only three days before the scheduled date,
Shapiro sought a protective order by “Emergency” motion excusing
him

from

appearing

for

his

deposition

or

to

be

deposed

in

California or by electronic means. In his motion for protective
order, Shapiro argued that having to travel from California to
Rhode

Island

would

cause

an

undue

burden

and

expense.

The

Magistrate Judge rejected this contention, noting that Shapiro had
bought an airline ticket to attend a June 6, 2012 hearing before
this Court but that, after obtaining permission on May 23, 2012 to
attend the June 6, 2012 hearing by telephone, Shapiro had simply
canceled his ticket, knowing that RWU desired to depose him in
person, and knowing that he would seek an excusal from appearing at
his June 1, 2012 deposition.
The Magistrate Judge also rejected Shapiro’s representation
that he believed his deposition would cause him to incur extra
expense by requiring him to spend several days in Rhode Island. The
Magistrate Judge referred to Shapiro’s familiarity with the Federal
Rules of Civil Procedure, which limits depositions to 1 day of 7
hours, see Fed. R. Civ. P. 30(b), and noted that, by simply

7

Pursuant to Fed. R. Civ. P. 37(d)(1)(A)(i), a party who
“fails, after being served with proper notice, to appear for that
person’s deposition,” is subject to sanctions, including dismissal.
13

requesting

that

his

deposition

stay

within

those

perimeters,

Shapiro could have limited his expenses while accommodating RWU’s
request for a personal deposition. As pointed out by the Magistrate
Judge, Shapiro had twice before traveled to hearings before this
Court and had already purchased a ticket for a third hearing which he then voluntarily canceled - casting some doubt on his
claims of financial hardship.
Moreover, because Shapiro filed his “Emergency” Motion only
three days before the scheduled deposition date, a telephonic
hearing on his motion could not be scheduled until May 31, 2012,
making it too late for Shapiro to travel to the scheduled June 1,
2012 deposition. The deposition was re-scheduled for June 21, 2012
and Shapiro was ordered to appear for his deposition. He was also
advised that if he failed to appear for the deposition, he was
“subject to being sanctioned and that the sanction could include
dismissal of this action.” Order (Docket #108) at 6 n.6.
Shapiro’s response to this motion was due July 9, 2012; no
objection thereto has been filed to date.
4. Motion for Entry of Final Judgment (Docket # 132).
RWU seeks entry of final judgment pursuant to Fed. R. Civ. P.
37(b)(2)(A)(v) and (vi).

RWU states that Shapiro was compelled by

order of this Court to produce documents in response to RWU’s first
supplemental request for production of documents, but that Shapiro
failed to comply with such order. In support, RWU presents the

14

Order Granting Motion to Compel Production (Docket #114) issued by
the Magistrate Judge on June 7, 2012, which granted four initial
and one supplemental request by RWU for discovery documents.
Shapiro’s response to this motion was due July 16, 2012; no
objection thereto has been filed to date.
III. Standard of Review
Failure by a party to make disclosures or to cooperate in
discovery is governed by Rule 37 of the Federal Rules of Procedure.
Sanctions

for

failure

to

comply

with

a

Court

Order

include

dismissal of the action in whole or in part and/or rendering a
default judgment against the disobedient party. Fed. R. Civ. P.
37(b)(2)(A)(v) and (vi). In addition, Rule 41 of the Federal Rules
of Civil Procedure provides that “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it.”
Fed. R. Civ. P. 41(b). A dismissal pursuant to subsection 41(b),
unless

specified

otherwise

by

the

Court,

“operates

as

an

adjudication on the merits.” Id.
Rule 37 provides a variety of sanctions for failure to obey a
discovery order, including dismissal.

A default judgment against

a party may be rendered when the party has failed to obey a court
order, see Fed. R. Civ. P. 37(b)(2)(A)(vi).

Companion Health

Servs., Inc. v. Kurtz, 675 F.3d 75, 84 (1st Cir. 2012). The same
sanction is available “where a party fails to provide answers to

15

interrogatories or produce documents for inspection, or for failure
of a party to attend its own deposition.”

Id. (citing Fed. R. Civ.

P. 37(d)(3)).
As has been long recognized in this Circuit, “[t]here is
nothing in the rule that states or suggests that the sanction of
dismissal can be used only after all the other sanctions have been
considered or tried.”

Damiani v. Rhode Island Hosp., 704 F.2d 12,

15 (1st Cir. 1983); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 25
(1st Cir. 2006)(upholding entry of default as initial sanction for
party’s repeated failure to produce discovery materials); HMG Prop.
Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 918
(1st Cir. 1988)(noting that the law is well established that “a
trial

judge

need

not

first

resorting to dismissal”).

exhaust

milder

sanctions

before

Although default judgment is considered

“drastic,’” it “‘provides a useful remedy when a litigant is
confronted by an obstructionist adversary” and the sanction “‘plays
a constructive role in maintaining the orderly and efficient
administration of justice.’” Companion Health Servs., Inc. v.
Kurtz, 675 F.3d at 84 (quoting Crispin-Taveras v. Municipality of
Carolina, 647 F.3d 1, 7 (1st Cir. 2011)(quotation omitted)).
Generally, District Courts have “broad discretion to manage
discovery

matters,”

Heidelberg

Americas,

Inc.

v.

Tokyo

Kikai

Seisakuscho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003), because they
are “familiar with the circumstances of the case and . . . in the

16

best position to evaluate the good faith and credibility of the
parties.” Remexcel Managerial Consultants, Inc. v. Arlequin, 583
F.3d 45, 51 (1st Cir. 2009)(quoting KPS & Assocs., Inc. v. Designs
by FMC, Inc., 318 F.3d 1, 13 (1st Cir. 2003)). The authority of the
Court to “dismiss an action as a sanction for noncompliance with a
discovery order is well established.” Vallejo v. Santini-Padilla,
607 F.3d 1, 7-8 (1st Cir. 2010)(collecting cases and acknowledging
the “array of litigation misconduct faced by district courts”).
With respect to a party’s failure to obey a court order, such
disobedience “in and of itself, constitutes extreme misconduct
(and,

thus,

warrants

dismissal.”).

Id.

at

8

(quoting

Tower

Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.
2002)).
IV. Discussion
From the beginning of this litigation, Shapiro sought, and was
accorded, the benefits generally conferred on a pro se litigant,
including access to the Court’s docket free of charge, in order to
keep himself informed about the status of the case. In addition,
every effort was made, and extraordinary patience and consideration
was shown to Shapiro by the Magistrate Judge assigned to handle the
discovery phase of this case.

Although, generally, some leniency

for pro se litigants may be appropriate, see, e.g. Pomales v.
Celurares Telefonica, Inc., 342 F.3d 44, 50 n. 4 (1st Cir. 2003),
a litigant’s pro se status does not “absolve him from compliance

17

with the Federal Rules of Civil Procedure.” F.D.I.C. v. Anchor
Properties, 13 F.3d 27, 31 (1st Cir. 1994). Failure to comply with
court orders may result in dismissal in cases of extreme misconduct
and/or where the pro se litigant has been explicitly warned that
certain conduct may result in dismissal. Pomales v. Celurares
Telefonica, Inc., 342 F.3d at 50 n. 4 (citing Cintron-Lorenzo v.
Departamento de Asuntos del Consumidor, 312 F.3d 522, 526-27 (1st
Cir. 2002)).

The Court notes at this juncture that, although

Shapiro is not an attorney, he appears to have had the benefit of
some legal education and he has repeatedly demonstrated that he is
familiar with the Federal Rules of Civil Procedure. It has also
been brought to the Court’s attention that Shapiro has filed
numerous pro se complaints in other courts. See e.g. Shapiro v.
Circuit Court of Virginia Beach, Action No. 2:10cv460 (E.D.Va.
March 1, 2011) (admonishing plaintiff that litigation is not a
sport, noting that plaintiff had filed fourteen lawsuits in that
court in two years, and advising that the court will consider
imposing a system of pre-filing review for any future submissions
by plaintiff).
In this litigation, there are numerous examples of troubling
misconduct

by

Shapiro

which

warrant

sanctions,

including

the

dismissal of the case with prejudice:
First,

Shapiro’s

continuing

representation

that

he

is

a

California resident is contradicted by the deposition testimony of

18

his father, who described in detail the process of forwarding
litigation materials and other court filings received at his law
firm to Shapiro at his Virginia address.
Second, Shapiro’s refusal to provide an e-mail address for the
asserted reason that he does not use one is inconsistent with
Shapiro’s own statements that he received notice of RWU’s motions
only by e-mail and the submitted evidence of communications between
the parties via e-mail.
Third, Shapiro’s statement that RWU’s counsel did not confer
with him prior to filing a motion for protective order related to
Shapiro’s student file is disputed by RWU without objection from
Shapiro.

Moreover,

the

interaction

between

Shapiro

and

RWU’s

counsel, which took place before the motion for protective order
was filed, is described in detail, which lends it additional
credibility.
Fourth, as the Magistrate Judge repeatedly pointed out to
Shapiro, once Shapiro had been given free PACER access, he could no
longer claim that he did not receive, or did not have access to,
any court filings in this case. Nevertheless, Shapiro based his
inability to adhere to discovery deadlines on not having received
a copy of the pretrial order. In addition, he filed a petition for
writ with the First Circuit Court of Appeals to have various
filings set aside on RWU’s alleged failure to serve or forward such
materials to him.

19

Fifth, Shapiro was specifically ordered to provide answers to
RWU’s interrogatories within twenty-one days of this Court’s order
dated May 24, 2012 (Docket # 104).

In disobedience of this

specific order, Shapiro failed to provide responses.
Sixth, Shapiro failed to appear at a scheduled hearing on May
22, 2012.

Instead of advising the Court and RWU’s counsel that he

would be unable to attend, Shapiro filed a motion to set aside
RWU’s notice of the motion and to reschedule the hearing, which was
received after the hearing had concluded.
Seventh, Shapiro failed to obey an order of this Court (Docket
# 108) to produce documents in response to RWU’s first supplemental
request. The documents were due to be produced by June 21, 2012.
Eighth, Shapiro failed to appear at his own deposition, which
had been re-scheduled to accommodate him. Rescheduling became
necessary when Shapiro filed an “Emergency” Motion only three days
before the scheduled date of his deposition.

During a hearing on

his “Emergency” Motion, in which Shapiro participated by telephone,
he disclosed to the Magistrate Judge that he would be unable to
attend his deposition on June 1, 2012 and that he had canceled an
already purchased ticket for a flight by which he could have
traveled to Rhode Island a few days later. At a hearing on
Shapiro’s “Emergency” Motion on May 31, 2012, the Magistrate Judge
gave Shapiro an opportunity to select among several dates for his
deposition, an opportunity which Shapiro refused.

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At that time,

the

Magistrate

Judge

re-scheduled

Shapiro’s

deposition

and

explicitly warned him that not attending his own deposition would
result

in

severe

consequences.

Following

the

hearing,

the

Magistrate Judge issued a written order (Docket # 108) which
stated, in bold lettering, that “Plaintiff is ordered to appear for
his deposition at 10:00 a.m. on Thursday, June 21, 2012, at the
location stated in the Notice of Deposition.”

The order also

included a footnote which advised Shapiro that “if he fails to
appear for this deposition he is subject to being sanctioned and
that sanction could include dismissal of this action.” The footnote
cited

Fed.

R.

Civ.

P.

37(b),(d)

and

case

law

regarding

the

possibility of dismissal as a sanction for a plaintiff’s failure to
attend his own deposition.
Finally, the Court notes that Shapiro has not objected to any
of the four motions by RWU seeking sanctions and/or dismissal of
the case and, although Shapiro has appealed from the Magistrate
Judge’s order compelling him to attend his own deposition on June
21, 2012, he did not file a motion for a protective order, nor did
he seek a stay of such proceedings. As such, RWU’s motions for
sanctions and/or to dismiss the case are essentially unopposed and
they may be granted on that basis as well.
In

sum,

in

view

of

Shapiro’s

continuous

and

flagrant

misconduct in the course of this litigation, including making
misrepresentations to this Court, refusing to provide discovery

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materials, and outright disobedience with respect to at least three
separate orders of this Court (Docket ## 104, 108, and 114), the
Court concludes that dismissal of the case is an appropriate
measure.
Conclusion
For the reasons stated above, RWU’s motions (Docket ## 112,
126, 127, and 132) are GRANTED and the case is DISMISSED WITH
PREJUDICE pursuant to Rules 37(b)(2)(A), 37(d)(1)(A), and 41(b) of
the Federal Rules of Civil Procedure.

SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
August 17, 2012

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