15‐868‐cv Smith v. Conn. Depʹt of Corr., et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of March, two thousand sixteen.

PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

SHARON SMITH, Plaintiff‐Appellant,

v. 15‐868‐cv

CONNECTICUT DEPARTMENT OF CORRECTION, HARTFORD CORRECTIONAL CENTER, Defendants‐Appellees.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: Josephine S. Miller, Danbury, Connecticut.

FOR DEFENDANTS‐APPELLEES: ANN E. LYNCH, Assistant Attorney General, for George Jepsen, Attorney General of Connecticut, Hartford, Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Bryant, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Sharon Smith appeals the judgment of the district court

entered January 21, 2015 dismissing her complaint against defendants‐appellants,

Connecticut Department of Correction and Hartford Correctional Center, alleging

employment discrimination under Title VII of the Civil Rights Act of 1964. On January

7, 2015, the district court granted defendantsʹ supplemental motion to dismiss the case

pursuant to Federal Rules of Civil Procedure 37 and 41, based on plaintiffʹs failure to

adhere to court deadlines, produce discovery, and comply with court orders. We

assume the partiesʹ familiarity with the underlying facts, procedural history, and issues

on appeal.

Federal Rule of Civil Procedure 37 allows a district court to dismiss an

action if a party fails to obey a discovery order or otherwise meet its discovery

obligations. Fed. R. Civ. P. 37(b)(2) (ʺIf a party . . . fails to obey an order to provide or

permit discovery . . . the court where the action is pending may issue further just orders.

They may include . . . dismissing the action or proceeding in whole or in part . . . .ʺ).

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ʺWe review a district courtʹs imposition of sanctions under Rule 37, including dismissal,

for abuse of discretion.ʺ Agiwal v. Mid Island Mort. Corp.,

(2d Cir.

2009).

ʺ[D]ismissal with prejudice is a harsh remedy to be used only in extreme

situations, and then only when a court finds willfulness, bad faith, or any faultʺ on the

part of the party. Bobal v. Rensselaer Polytechnic Inst.,

, 764 (2d Cir. 1990)

(internal quotation marks omitted). Still, it ʺmay be imposed . . . so long as a warning

has been given that noncompliance can result in dismissal.ʺ Valentine v. Museum of

Modern Art,

(2d Cir. 1994). We evaluate a district courtʹs dismissal by

examining the following non‐exclusive factors: ʺ(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.ʺ Agiwal,

(quoting Nieves v. City of New York,

(S.D.N.Y. 2002); see also S. New

Eng. Tel. Co. v. Global NAPs Inc.,

(2d Cir. 2010).

Plaintiff missed at least four discovery deadlines. First, after plaintiff did

not respond to initial requests for discovery, the court granted defendantsʹ motion to

compel responses and ordered plaintiff to respond by October 29, 2014. Plaintiff did

not heed that order. Second, plaintiff failed to provide complete discovery by the

courtʹs original November 3, 2014 deadline. Third, after the court thereafter extended

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the deadline for completion of all discovery to November 19, 2014, plaintiff provided

only incomplete and unverified responses to defendantsʹ requests. Finally, after the

court again extended the deadline for completion of all discovery until December 29,

2014, plaintiff failed to meet the new date. Indeed, plaintiff never fully complied with

her discovery obligations under Rule 26. Apart from appearing for her deposition,

discovery had not materially progressed, and the district court reasonably believed that

plaintiff had neither collected nor produced relevant documents.

Moreover, the excuses that plaintiff asserted ‐‐ an unsubstantiated medical

condition and personal international travel ‐‐ were reasonably rejected by the district

court. The material offered by plaintiffʹs counsel in support of the medical condition

ʺappear[ed] to be self‐generated and specifically note[d] that the condition [was] minor

and age related.ʺ Joint App. at 22.

Finally, plaintiff was explicitly warned that failure to abide by court

orders would result in dismissal. At the December 17, 2014 conference ‐‐ following

plaintiffʹs third failure to comply with the courtʹs discovery orders ‐‐ the court

specifically warned plaintiffʹs counsel that the case would be dismissed if discovery was

not produced by December 29, 2014. Thus, plaintiff ʺcannot credibly argue that [s]he

was not sufficiently warned that serious sanctions were imminent.ʺ Guggenheim Capital,

LLC v. Birnbaum,

(2d Cir. 2013).

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While dismissal of an action is the most severe sanction for

noncompliance with discovery orders, see Nat’l Hockey League v. Metro. Hockey Club, Inc.,

, 642‐43 (1976), it is warranted where plaintiffʹs unexcused noncompliance

while on notice of dismissal demonstrates ʺwillfulness or conscious disregard for the

discovery process,ʺ Minotti v. Lensink,

(2d Cir. 1990) (per curiam)

(quoting Founding Church of Scientology v. Webster,

(D.C. Cir. 1986))

(affirming dismissal pursuant to Rule 37(b)(2)(C) in part because district court

repeatedly allowed plaintiff additional time to comply with discovery orders and

warned plaintiff about threat of dismissal). Because plaintiff failed to fulfill her

obligation to comply with the courtʹs orders, the district court acted within its discretion

in dismissing her action.

We have considered all of plaintiffʹs additional arguments and find them

to be without merit. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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