United States District Court, D. Connecticut
ORDER ON DEFENDANT'S MOTION TO DISMISS [ECF NO.
40]
Kari
A. Dooley, U.S.D.J.
On
October 11, 2019, Defendant Stop & Shop Supermarket (the
“Defendant”) moved to dismiss with prejudice all
claims brought by Plaintiff John William Davis, III (the
“Plaintiff”) in this action pursuant to
Fed.R.Civ.P. 37(b)(2)(A)(v) and Fed.R.Civ.P. 41(b), based
upon the Plaintiff's failure to prosecute his claims and
failure to obey this Court's May 28, 2019 Scheduling
Order (ECF No. 32) and September 6, 2019 Order (ECF No. 38)
granting the Defendant's Motion to Compel. For the
reasons that follow, the Defendant's motion is GRANTED.
Procedural
History
The
Plaintiff, proceeding pro se, filed his complaint
against the Defendant on August 1, 2018, alleging that he was
wrongfully terminated from his employment at Stop & Shop
Supermarket based upon his race and religion, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. (ECF No. 1.) On February
20, 2019, the Defendant answered the complaint and denied its
core allegations. (ECF No. 17.) The Court convened a Rule
16(b) conference when the Defendant advised the Court that
all efforts to engage the Plaintiff in a Rule 26 planning
meaning were unsuccessful and that the Plaintiff did not
respond to repeated efforts to discuss the case. (ECF No.
28.) At the Rule 16(b) conference, the Court advised the
Plaintiff, that as the Plaintiff, he had obligations to the
Defendant as well as the Court under the Federal Rules of
Civil Procedure, which the Plaintiff acknowledged. Following
the Rule 16(b) conference, the Court entered a scheduling
order that required, inter alia, the Plaintiff to
serve his Rule 26 initial discovery by June 28, 2019. (ECF
No. 32.) On June 7, 2019, the Defendant served its initial
discovery upon the Plaintiff, which required that the
Plaintiff respond by July 8, 2019. (Fetner Decl. ¶¶
4, 6, ECF No. 37-2.) The Plaintiff neither served his Rule 26
discovery on the Defendant by June 28, 2019 nor responded to
the Defendant by the July 8, 2019 deadline. (Id.
¶¶ 5-6.) On July 24, 2019, counsel for the
Defendant wrote to the Plaintiff via certified letter and
e-mail to remind him of these deadlines and to request his
prompt responses. (Id. ¶ 7.) Counsel included
copies of Federal Rules of Civil Procedure 33, 34, and 36
with this correspondence. (See ECF No. 37-4.) The
Plaintiff did not respond and the Defendant's counsel
e-mailed Plaintiff again on August 7, 2019. (Fetner Decl.
¶¶ 8-9.) On August 15, 2019, the Defendant filed a
motion to compel the Plaintiff's responses to the
Defendant's Rule 26 initial discovery (ECF No. 37), which
this Court granted on September 6, 2019 (ECF No. 38). The
Court further ordered the Plaintiff to serve his Rule 26
initial discovery and to respond to the Defendant's
discovery requests on or before September 27, 2019 and warned
the Plaintiff that failure to comply with these deadlines
could result in the imposition of sanctions, including
dismissal of his case. (Id.)
To date
the Plaintiff has neither propounded his own discovery nor
responded or objected to the Defendant's discovery
requests. Nor has the Plaintiff produced his initial
disclosures as ordered on May 28, 2019 and again on September
6, 2019. On October 7, 2019, the Court held a telephonic
status conference in which the Plaintiff indicated that he no
longer wished to pursue his claims but nor did he want his
claims dismissed with prejudice.[1] (ECF No. 39.) Following that
conference, the Defendant filed the instant motion to
dismiss. The Plaintiff has not responded and his time to do
so has now passed.
Discussion
Fed. R.
Civ. P. 37(b)(2)(A)(v) permits the Court to dismiss a case
based upon a party's “fail[ure] to obey an order to
provide or permit discovery.” In determining whether
such a sanction is warranted, the Court looks to such factors
as: “(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) (per curiam) (quotation marks and citation
omitted).
Under
the circumstances here, [2] an examination of these factors
counsels dismissal of the Plaintiff's claims. The Court
expressly and clearly warned the Plaintiff on September 6,
2019 that his failure to comply with the Court's orders
could result in the imposition of sanctions, including
dismissal. See Lee v. Connecticut Dep't of
Children, No. 3:11-cv-01910 (AWT), 2015 WL 12991321, at
*5 (D. Conn. Sept. 30, 2015), aff'd sub nom. Lee v.
Katz, 669 Fed.Appx. 57 (2d Cir. 2016)
(“[N]on-compliance may be deemed willful when the
court's orders have been clear, when the party has
understood them, and when the party's non-compliance is
not due to factors beyond the party's control.”)
(quotation marks and citations omitted). Further, the
Plaintiff offers no reason or excuse for his noncompliance,
save for his disinterest in pursuing his claims. The Court
also considers the passage of time since the Plaintiff was
first ordered to provide discovery to the Defendant. The
Plaintiff was ordered to produce his initial disclosures by
June 28, 2019. He has, to date, not done so. In granting the
Defendant's motion to compel, the Court further ordered
both the initial disclosures and responses to duly served
discovery to be provided by September 27, 2019. Again, the
Plaintiff did not comply. Under the circumstances, the Court
finds that no other sanction short of dismissal will suffice.
See, e.g., Brissett v. Manhattan & Bronx
Surface Transit Operating Auth., 472 Fed.Appx. 73, 74
(2d Cir. 2012) (summary order) (upholding Rule 37 dismissal
of employment discrimination action based upon pro
se plaintiff's failure to comply with discovery
orders, and recognizing that “[t]he severe sanction of
dismissal with prejudice may be imposed even against a
plaintiff who is proceeding pro se, so long as a
warning has been given that noncompliance can result in
dismissal.'”) (quoting Valentine v. Museum of
Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (per
curiam)).
Alternatively,
the Defendant seeks dismissal pursuant to Fed.R.Civ.P. 41(b),
which contemplates a dismissal that “operates as an
adjudication on the merits” “[i]f the plaintiff
fails to prosecute or to comply with these rules or a court
order.” The Second Circuit has identified five factors
to guide the Court's exercise of discretion under Rule
41(b): “whether (1) the plaintiff's failure to
prosecute caused a delay of significant duration; (2)
plaintiff was given notice that further delay would result in
dismissal; (3) defendant was likely to be prejudiced by
further delay; (4) the need to alleviate court calendar
congestion was carefully balanced against plaintiff's
right to an opportunity for a day in court; and (5) the trial
court adequately assessed the efficacy of lesser
sanctions.” Lewis v. Rawson, 564 F.3d 569, 576
(2d Cir. 2009) (citation omitted).
Again,
given the Plaintiff's failure to engage with defense
counsel and his failure to comply with the rules of procedure
and this Court's orders, these factors counsel dismissal
under Rule 41(b). The Court first observes that the discovery
window closed on September 28, 2019 (ECF No. 32), yet the
Plaintiff has still not produced nor responded to a single
discovery request. Indeed, nor has the Plaintiff propounded
any discovery or noticed any depositions. The Plaintiff's
conduct has therefore caused a significant delay in the
progress of the case. See Suleski v. USI Consulting Grp.,
Inc., No. 3:17-cv-1503 (JBA), 2019 WL 1173016, at *2 (D.
Conn. Mar. 13, 2019) (“an action lying dormant with no
significant activity . . . may warrant dismissal after merely
a matter of months” (quoting Lyell Theatre Corp. v.
Loews Corp., 682 F.2d 37, 42-43 (2d Cir. 1982)). Second,
as noted above, the Plaintiff was advised on September 6,
2019 that failure to comply with his discovery obligations
could result in dismissal of the action. (ECF No. 38.) Third,
the Defendant has been prejudiced because it has incurred
costs and attorneys' fees defending a case that the
Plaintiff is not prosecuting. Prejudice may be found where,
as here, the “Plaintiff has neither offered any
explanation for [his] delay nor made any attempt to
participate in this litigation in many months.”
Suleski, 2019 WL 1173016, at *3. Fourth, the
Plaintiff failed to respond to the instant motion, and
thereby “seemingly elected not to make use of [his]
opportunity to be heard” a factor which weighs in favor
of dismissal. Id. Finally, for the reasons noted
above, the Court concludes that no lesser sanction will
suffice given the Plaintiff's complete lack of
involvement in prosecuting his claims.[3]
Accordingly,
the Defendant's motion to dismiss is GRANTED and the case
is dismissed with prejudice.
Fed. R.
Civ. P. 37(b)(2)(C) also authorizes the Court to require a
non-compliant party “to pay the reasonable expenses,
including attorneys' fees” incurred by that lack of
compliance “unless the failure was substantially
justified or other circumstances make an award of expenses
unjust.” Citing this provision, the Defendant asks the
Court to award the Defendant its expenses incurred in making
the instant motion, including attorneys' fees. The Court,
however, declines to issue such an order in light of the
Plaintiff's pro se status. See Quiles v.
Beth Israel Med. Ctr., 168 F.R.D. 15, 19 (S.D.N.Y. 1996)
(granting Rule 37 dismissal but concluding that
“[b]ecause the plaintiff is appearing pro se, this is
not a case where monetary sanctions would be reasonable, nor
can sanctions be imposed upon the plaintiff's
lawyer.”). The Defendant's request for reasonable
expenses, including attorneys' fees, is therefore DENIED.
Conclusion
For the
foregoing reasons, the Defendant's motion to dismiss is
GRANTED and the Clerk of the Court is instructed to enter
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