Davis v. Citibank, N.A.
| Decision Date | 16 December 2013 |
| Docket Number | 12 Civ. 1678 |
| Parties | EDWARD F. DAVIS, Plaintiff, v. CITIBANK, N.A., Defendant. |
| Court | U.S. District Court — Southern District of New York |
APPEARANCES:
Attorneys for the Defendant
ZEICHNER ELLMAN & KRAUSE LLP
Greg M. Bernhard, Esq.
EDWARD F. DAVIS
Defendant Citibank, N.A. ("Citibank" or the "Defendant") has moved pursuant to Fed. R. Civ. P. 56 for summary judgment on its counterclaim against pro se Plaintiff Edward F. Davis ("Davis" or the "Plaintiff"). Plaintiff has moved for a stay of the proceedings under Rule 62(c) of the Federal Rules of Civil Procedure.
Upon the facts and conclusions set forth below, Defendant's motion is granted and Plaintiff's motion is denied.
On September 26, 2011, Citibank commenced an action, seeking to recover a sum in excess of $6,664.09, which was due in connection with the Account. See Citibank, N.A. v. Edward F Davis, No. CV-11-1015, City Court of the City of Newburgh (the "City Court Action").
On December 30, 2011, Plaintiff served an answer to the City Court Action. On October 21, 2011, instead of asserting a counterclaim in the City Court Action, Plaintiff commenced an action in New York County, in which he alleged"multiple violations of consumer credit act and overcharges." Edward F. Davis v. Citibank, N.A., No. 3362 NSC 2011, Civil Court, New York County (the "Small Claims Action").
On February 13, 2012, Plaintiff commenced another action in New York County. Edward F. Davis v. Citibank, N.A., No. 101622/12, Supreme Court, New York County (the "State Court Action"). In the State Court Action complaint, Plaintiff alleged that Citibank used "unfair . . ., unconscionable . . . and harassing, threatening and otherwise abusive conduct" to collect a debt (State Court Action Compl. ¶¶ 8, 9). In addition, Plaintiff alleges violations of "consumer credit protection laws" (Id. ¶ 3). On March 7, 2012, Citibank removed the State Court Action to this Court.
At the time Plaintiff commenced the State Court Action he represented to Citibank that he would execute a stipulation of discontinuance of the Small Claim Action. Plaintiff advised the court in the Small Claims Action of his intention to do so, in order for his claims to be resolved in one action and in one forum. Accordingly, counsel for Citibank in the City Court Action sent Plaintiff stipulations of discontinuance for both the Small Claims Action and the City Court Action.
By a notice of motion dated March 21, 2012, Plaintiff sought leave to amend the complaint in the instant action to assert claims against Citibank of harassment and unfair debt collection practices. On March 28, 2012, Citibank wrote to the Court regarding its desire to assert its claim from the City Court Action against Plaintiff in a counterclaim once the City Court Action, Small Claims Action and State Court Action were each dismissed and requested a conference with the Court to address Citibank's counterclaim and Plaintiff's motion to amend the complaint.
On April 3, 2012, Plaintiff was granted leave to file an amended complaint (the "AC") to include all relevant claims. Citibank was also granted leave to file an answer to the AC and assert a counterclaim in that pleading. In consideration of the multiple pending lawsuits, the Court advised Plaintiff to dismiss the Small Claims Action and suggested that Citibank should secure an order dismissing the City Court Action in order to facilitate one court as the exclusive forum in which the parties' disputes would be resolved.
Plaintiff and Citibank again appeared before this Court on October 24, 2012 for a status conference, at which time the Court established an expedited timetable for the completionof discovery and suggested that depositions of Plaintiff and one representative from Citibank should be sufficient. Plaintiff raised no objection to the court ordered deposition. Plaintiff filed the AC that day.
On October 25, 2012 Citibank served an answer to the AC with affirmative defenses and counterclaims and served a deposition notice on the Plaintiff. (See id. Exs. B-C.)
On November 6, 2012 Plaintiff served a "Reply Affirmation in Opposition to Defendant's Request for Deposition and Motion for Protective Order" by which he contended that, because he is pro se, he should not be required to submit to a deposition. (See id. Ex. D.) The Motion sought a protective order because Plaintiff contended that he was unable to "obtain an attorney to attend the deposition[,]" that a "a deposition by oral examination considering that the plaintiff is pro se would be wrong[,]" and that the deposition "would be more burden than the plaintiff can handle." (Id.)
According to Citibank, on November 8, 2012, Plaintiff appeared at a hearing of the Small Claims Action and "explicitly advised he would not submit to a deposition unless directed to do so by the Court." (Id. Ex. E.)
By an order dated November 15, 2012, this Court denied the Motion, and directed Plaintiff to appear for a deposition on November 29, 2012 (the "November 15 Order"). The November 15 Order instructed Plaintiff to testify about "any non-privileged matter that is relevant to claims and/or defenses in this matter." (See id. Ex. E.) Citibank's counsel scheduled and paid for fees for a court reporter in preparation for the Plaintiff's deposition.
On November 28, 2012, Plaintiff sent a "Memorandum and Note of Issue" (the "November 28 Submission"), In which he acknowledged receipt of the November 15 Order but reiterated his objection to the deposition. (See id. Ex. F). The November 28 Submission stated that "nothing is fair about letting the defendant interrogate me in their own office[,]" and that the deposition "would be more trauma than I can handle and open the door for further abuse of power. . . ." (Id.). Plaintiff did not appear for his deposition on November 29, 2012.
On January 18, 2013, Defendant moved to strike the AC and/or have the action dismissed in its entirety with prejudice based on Plaintiff's failure to appear for his deposition and allegedly willful disobedience of the November 15 Order. OnMarch 7, 2013, this Court issued the March 7 Opinion, granting in part and denying in part the Defendant's first motion seeking an order dismissing the action with prejudice and/or striking the Plaintiff's complaint. Specifically, the Court ordered:
. . . Plaintiff's deposition shall be held on a date mutually agreeable to the parties on or before 20 days of this Order. Plaintiff is directed to appear for his deposition and cooperate fully in answering questions regarding any non-privileged matters relevant to the claims or defenses in this action. Any failure by the Plaintiff to cooperate with scheduling the deposition, to appear for the deposition or to follow the terms of this Order, may result in dismissal of the case with prejudice and/or sanctions in the form of reasonable costs that the Defendant will incur in scheduling the deposition, including but not limited to court reporter fees and attorneys' fees.
In ordering the Plaintiff's deposition by March 27, 2013, the Court held that Defendant "has submitted sufficient evidence that Plaintiff exhibits an apparent unwillingness to participate fully in the discovery process." (Id. at 10.) The March 7 Opinion also noted that the Plaintiff "knowingly and willfully refused to participate in his deposition" despite the Court's Order. (Id.) However, the Court held that "[i]n consideration of Plaintiff's pro se status, and upon review ofthe record, the extreme sanction of dismissal of this action is not appropriate at this time." (Id.)
According to the Defendant, it commenced arranging the Plaintiff's deposition by sending various letters and notices to the Plaintiff via overnight mail, regular mail and email. First, Defendant sent a March 12, 2013 letter (the "March 12 Letter") enclosing the March 7 Opinion and offered two dates for the deposition, either March 21, 2013 or March 22, 2013. (See Bernhard Decl., Ex. J.) Defendant contends that Plaintiff failed and refused to respond to the March 12 Letter. Instead, Plaintiff sent a purported deposition notice to Defendant for a deposition in April or May 2013. (See id., Ex. K, Plaintiff's Notice to Take Deposition Upon Oral Examination.)
According to the Defendant, it sent another letter to Plaintiff on March 15, 2013 advising that his deposition was set for March 22, 2013 and enclosed a Continued Notice to Take Deposition Upon Oral Examination of Plaintiff Edward F. Davis (the "March 15 Letter"). (See id., Ex. L.)
Defendant contends that the Plaintiff telephoned Defendant's counsel on March 19, 2013 and stated that he refused to appear on March 22, 2013. Defendant maintains thatCitibank's counsel reiterated that the March 7 Opinion required the deposition to be held no later than March 27, 2013.
On March 22, 2013, Plaintiff failed to appear for his deposition. According to the Defendant, a court reporter was present and ready to proceed with the deposition on that date.
On April 2, 2013, Plaintiff sought to extend discovery and submitted a "Plaintiff's Memorandum and Request to Extend Discovery" to the Court. (See id., Ex. N.) In his request, Plaintiff alleged that Defendant's counsel "has taken advantage of [his] pro se [status] from the beginning of discovery purporting to be the decision maker in matters of the court and misconstruing the rules of the court in correspondence with [his] pro se" status. (Id. at 1.) Plaintiff also accused Defendant's counsel of "falsif[ying] contents of his letters in an attempt to lead the court to believe that the plaintiff is solely at fault for delaying court proceedings . . . ." (Id. at 2.) Plaintiff requested that "discovery should remain open without limitation for as long as it takes to organize and execute the depositions." (Id. at 3.)
On July 15, 2013, Plaintiff...
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