Rule 37 Sanctions — Dismissal for Repeated Failure to Appear for Court-Ordered Deposition — 4-Factor Test (2d Circuit) — While Pro Se Is Due Special Solicitude, He or She Is Not Immune to Dismissal, If Willfulness, Bad Faith or Fault Is Found

Davis v. Citibank, N.A., 2015 U.S. App. LEXIS 10524 (2d Cir. June 23, 2015):

If a party fails to attend its own deposition, the district court may, inter alia, dismiss the action and [*2]  order the party to pay reasonable expenses. See Fed. R. Civ. P. 37(b)(2)(A)(v), (d)(3). "We review a district court's imposition of sanctions under Rule 37, including dismissal, for abuse of discretion." Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009). While pro se litigants are entitled to "special solicitude," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006), they "are not immune to dismissal as a sanction for noncompliance with discovery orders," as long as they are warned of that possibility, Agiwal v. Mid Island Mortgage Corp., 555 F.3d at 302. Nevertheless, because dismissal with prejudice is a "harsh remedy," it should only be used when a court finds "willfulness, bad faith, or any fault" by the non-compliant party. Id. Thus, in deciding whether a district court has abused its discretion in dismissing an action under Rule 37, we consider: "(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." Id. (internal quotation marks and alterations omitted).

Davis argues that the district court failed to take into account his "mental condition" during the discovery period, Appellant's Br. 18, and did not provide him with sufficient guidance as a pro se litigant. These arguments [*3]  are unpersuasive. The district court gave Davis ample time to submit to a deposition and Davis repeatedly refused to do so. Indeed, Davis willfully ignored the court's orders over a period of nine months, and the district court warned Davis of the consequence of his noncompliance to no avail. See Agiwal v. Mid Island Mortgage Corp., 555 F.3d at 302 (affirming dismissal where pro se litigant failed to comply with discovery order over six-month period knowing timely compliance expected). Davis never informed the district court of any mental illness during those nine months that might have prevented him from sitting for a deposition, and he provides no explanation regarding his claimed illness's relevance to his repeated refusal to comply with court orders. To the contrary, the record reflects that Davis was a fully competent and active litigant during the relevant time period: he filed an amended complaint, moved for a protective order, sent several letters to the court regarding discovery issues and deadlines, actively sought discovery from Citibank, and filed several memoranda in opposition to Citibank's motions to dismiss. Accordingly, we conclude that the district court did not abuse its discretion when it dismissed Davis's complaint [*4]  as a sanction for abuse of the discovery process.

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