Valentine v. Museum of Modern Art

• Decision Date: 05 July 1994
• Docket Number: No. 1936,D,1936
• Citation: 29 F.3d 47
• Parties: 65 Empl. Prac. Dec. P 43,203, 29 Fed.R.Serv.3d 807 Clarence R. VALENTINE, Plaintiff-Appellant, v. MUSEUM OF MODERN ART, Defendant-Appellee. ocket 93-9350.
• Court: U.S. Court of Appeals — Second Circuit

Page 47

29 F.3d 47

65 Empl. Prac. Dec. P 43,203, 29 Fed.R.Serv.3d 807

Clarence R. VALENTINE, Plaintiff-Appellant, v. MUSEUM OF MODERN ART, Defendant-Appellee.

No. 1936, Docket 93-9350.

United States Court of Appeals, Second Circuit.

Submitted June 28, 1994.

Decided July 5, 1994.

Colin A. Moore, Brooklyn, NY (Arleen T. Ralph, of counsel), for plaintiff-appellant.

Proskauer Rose Goetz & Mendelsohn, New York City (Allen I. Fagin, Seth M. Popper, of counsel), for defendant-appellee.

Before: KEARSE and ALTIMARI, Circuit Judges, and SEYBERT, District Judge ^*.

PER CURIAM:

Plaintiff Clarence R. Valentine appeals from a judgment of the United States District Court for the Southern District of New York, John S. Martin, Jr., Judge, dismissing his action on account of Valentine's failure to comply with an order of the court. On appeal, Valentine contends that use of the harsh remedy of dismissal was inappropriate. We disagree and therefore affirm the district court's order of dismissal.

Appearing pro se in the district court, Valentine commenced the present action in 1991 against defendant Museum of Modern Art ("MOMA"), alleging termination of his employment on the basis of his race, in violation of 42 U.S.C. Sec. 1981 (1988) and 42 U.S.C. Sec. 2000e-5 (1988). During the course of the litigation, MOMA sought discovery from Valentine Valentine was repeatedly warned of sanctions that could be imposed if he refused to comply with discovery orders. For example, in September 1992, Valentine indicated that the district judge had previously advised him that if he refused to be deposed, his action would be dismissed. In a telephone conference with Magistrate Judge Leonard Bernikow during a session of his deposition on that date, Valentine asked, "Why is it that the judge told me that if I do not give a deposition, he will dismiss the case?" (Deposition Transcript, September 15, 1992, at 41.)

with mixed success. Though he appeared for two deposition sessions, he was disruptive on those occasions; on other scheduled occasions he failed to appear.

On November 4, 1992, Magistrate Judge Bernikow again informed Valentine that if he chose not to answer questions on deposition, "there are certain sanctions under Rule 37 ... of the Federal Rules of Civil Procedure...." (Transcript of Pretrial Conference, November 4, 1992 ("November 1992 Tr."), at 6.) Magistrate Judge Bernikow read and explained portions of that Rule to Valentine, stating that Rule 37(c) provides that the court may enter

an order striking out pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party.

Those are the sanctions, Mr. Valentine, that are available for failure to appear for a deposition, and that's what Judge Martin, I'm sure, had in mind when he advised you of that fact.

(November 1992 Tr. 8-9.) Valentine insisted that he had a right to question whether dismissal was an available sanction for failure to appear for his deposition. (See id. 25.)

On March 25, 1993, Magistrate Judge Kathleen A. Roberts advised Valentine, "As Judge Martin has previously told you, if you don't appear for your deposition, then the case will be dismissed." (Pretrial Hearing Transcript, March 25, 1993, at 62.)

On April 22, 1993, Valentine disrupted MOMA's attempt to take his deposition, making "frequent and improper ad hominem remarks disparaging counsel's intelligence, preparation, and personal complicity in what plaintiff views as ongoing discrimination by the Museum and its agents," and forcing MOMA's attorney to halt the deposition and seek intervention by the court. Order of Magistrate Judge Kathleen A. Roberts dated August 16, 1993, at 2. Magistrate Judge Roberts ordered Valentine to appear before her for the continuation and completion of his deposition on October 5, 1993. See id. Valentine's objections to this order were overruled by the district judge on September 30. Valentine then sent Judge Martin a memorandum dated October 8, 1993, which stated, in pertinent part, as follows:

Forwarded herewith Plaintiff's Notice of Appeal to your "ORDER" dated September 30, 1993, plaintiff find [sic ] your explaination [sic ] "denied" unacceptable and unreasonable, evasive and unprofessional, this constitutes a coverup which is a travesty of justice.

On October 5, Valentine failed to appear for the continuation of his deposition. When reached by telephone on that day, he stated that he had not appeared because he had not received the district judge's order overruling his objections until that morning. Magistrate Judge Roberts directed him to appear for his deposition on October 20.

After receiving a copy of Valentine's October 8 memorandum, Magistrate Judge Roberts sought to determine whether Valentine would comply with the court's order to appear on October 20, but was unable to reach him by telephone. Learning that Valentine would be appearing before Judge Martin on October 19 on an unrelated matter, the magistrate judge contacted Judge Martin, who inquired whether Valentine would appear for his deposition in the present case on October 20. Informed that Valentine would be busy on October 20, Judge Martin inquired about October 21. Valentine stated that he would not attend on that date either. Valentine contended that in light of his attempt to appeal the court's September 30 order, the court had no power to order him to attend at all. The court informed Valentine that notwithstanding his objections to the court's THE COURT: Mr. Valentine, ... Judge Roberts' chambers has contacted me. They have been trying to get hold of you to have a deposition concluded.... Are you available tomorrow morning?

September 30 order, Valentine was required to proceed with his deposition. The court directed Valentine to appear for his deposition on October 26 and warned him that if he failed to do so his action would be dismissed. The colloquy was as follows:

MR. VALENTINE: Sir, I appeal against your decision, and that matter is sub judice. I appealed against your decision.

THE COURT: You have the right to appeal. But as far as your deposition, that matter should go forward. I am directing you to go forward.

MR. VALENTINE: I am disagreeing with you, sir. I am saying I appealed against your decision. Your decision in the matter against the Museum of Modern Art, I appealed against your decision, and therefore, having appealed against your decision, the matter is now sub judice, it's out of your hands. You cannot give me any instructions at all.

THE COURT: I am directing you on the record to appear tomorrow morning at room 631 for the continuation of your deposition....

MR. VALENTINE: I will not attend because I have very important--

THE COURT: Will you [be] available the following day?

MR. VALENTINE: I don't know if I can be available the following day.

THE COURT: What day next week are you available?

MR. VALENTINE: I will not attend still saying, Judge, that this matter is sub judice and that you have no--

THE COURT: I understand that. But I have overruled that. The question is--

MR. VALENTINE: No, you can't overrule that, sir. I will not attend. I am going[ ] to say it again plainly. You gave a decision. I appealed against Kathleen Roberts' decision. I appealed against it. Then you said that my appeal to you was denied. Then I appealed against your decision, sir.

THE COURT: Please, I have heard you. I am...