Lebada v.

• Decision Date: 08 February 2016
• Docket Number: 14 Civ. 758 (LAK) (GWG)
• Parties: CONSTANTIN LEBADA et al., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION et al., Defendants.
• Court: U.S. District Court — Southern District of New York

CONSTANTIN LEBADA et al., Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION et al., Defendants.

14 Civ. 758 (LAK) (GWG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 8, 2016

REPORT & RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiffs brought suit under 42 U.S.C. § 1983 alleging that the New York City Department of Education ("DOE") and school administrators discriminated against them in the course of their employment as teachers at the High School for Graphic Communication Arts ("HSGCA") based on their age and also retaliated against two of them for exercising their First Amendment rights. The defendants have moved for summary judgment.¹ For the reasons stated below, the defendants' motion should be granted.

I. PROCEDURAL BACKGROUND

Plaintiffs filed this case on February 2, 2014. See Docket # 2. Judge Kaplan referred it to Magistrate Judge Dolinger for general pretrial purposes, as well as dispositive motions requiring a Report and Recommendation. See Order of Reference to a Magistrate Judge, filed Feb. 13, 2014 (Docket # 3). On July 8, 2015, Judge Dolinger issued an order requiring that all discovery, both fact and expert, be completed by January 30, 2015. See Order, filed July 15, 2014 (Docket # 11).

On January 12, 2015, the parties jointly applied for an extension of discovery. Letter from Joseph Anci, filed Jan. 12, 2015 (Docket # 18). Following a conference held on January 21, 2015, Judge Dolinger extended the discovery schedule. See Order, filed Jan. 21, 2015 (Docket # 20) ("January Discovery Order"), at 1. The new schedule required the parties to complete all discovery by March 31, 2015. Id. It also required the parties to serve their discovery requests no later than January 26, 2015, gave the parties 30 days to respond to all discovery requests, and required the parties to submit a joint status report to the court every two weeks. Id.

The defendants served their initial discovery requests on January 26, 2015, as required by the January Discovery Order. See Email from Joseph Anci to Ambrose Wotorson, Jr., dated Jan. 26, 2015, appended as Ex. C to Third Anci Decl. The defendants also made their Rule 26 disclosures at this time. See id. In their February 4, 2015, status report, the plaintiffs informed the court that they served their initial discovery demands on January 28, 2015 - two days after the date in the January Discovery Order. See Letter from Ambrose Wotorson, Jr., filed Feb. 4, 2015 (Docket # 21), at 1. Judge Dolinger retroactively permitted this late service. See Memorandum Endorsement on Letter from Ambrose Wotorson, Jr., filed Feb. 5, 2015 (Docket# 22). In the status report, the plaintiffs requested an extension until February 16, 2015, to serve their initial disclosures under Rule 26, which Judge Dolinger also granted. See id.

The defendants timely responded to plaintiffs' January 28 discovery demands. See January Discovery Order at 1; see also Email from Joseph Anci to Ambrose Wotorson, Jr., dated Feb. 27, 2015, appended as Ex. G to Third Anci Decl. But plaintiffs missed their deadline to respond to the defendants' discovery demands. See Letter from Joseph Anci, filed Feb. 28, 2015 (Docket # 26), at 2; January Discovery Order at 1. They also failed to comply with the February 16 deadline to serve initial disclosures, see Letter from Joseph Anci, filed Feb. 28, 2015 (Docket # 26), at 2 — a deadline the plaintiffs themselves had requested, see Letter from Ambrose Wotorson, Jr., filed Feb. 4, 2015 (Docket # 21), at 2. Despite assuring the defendants that responses to defendants' discovery demands would arrive by the afternoon of February 28, 2015, plaintiffs failed to meet this deadline. See Emails between Ambrose Wotorson, Jr. and Joseph Anci, dated Feb. 27, 2015, appended as Ex. F to Third Anci Decl. The defendants requested court intervention to resolve the dispute. Letter from Joseph Anci, filed Feb. 28, 2015 (Docket # 26), at 2.

Judge Dolinger held a conference on March 4, 2015. See Order, filed Mar. 4, 2015 (Docket # 29) ("March Discovery Order"). In the Order following that conference, Judge Dolinger required the plaintiffs "to serve their initial disclosures, documents responsive to defendants' requests for production, and answers to defendants' interrogatories by no later than close of business on March 5, 2015." Id. at 1 (emphasis omitted). Judge Dolinger awarded the defendants "reasonable expenses and fees related to their pursuit of plaintiffs' discovery materials." March Discovery Order at 1. Finally, Judge Dolinger extended the discovery deadline from March 31, 2015 to April 28, 2015. Id. at 2.

Shortly after midnight on the day after the court-ordered deadline, plaintiffs provided interrogatory responses. See Email from Ambrose Wotorson, Jr. to Joseph Anci, dated Mar. 6, 2015, appended as Ex. M to Third Anci Decl. They did not send any documents identifiable as initial disclosures. Id. Not only were the interrogatory responses unsworn, they were unsigned. See Interrogatory Responses, appended as Ex. 2 to Second Wotorson Aff.

In the meantime, depositions had started as of March 5, 2015. See, e.g., Deposition of Llermi Gonzalez, appended as Ex. F to First Anci Decl. On March 9, 2015, defendants informed the court of various deficiencies in the March 6 submissions, including the failure to provide initial disclosures, the failure to provide signed interrogatory answers, the failure to provide any answers at all from one of the plaintiffs, and the failure to respond to document requests properly. Letter from Joseph Anci, filed Mar. 9, 2015 (Docket # 33), at 2. The defendants wrote to plaintiffs' counsel stating that plaintiffs' continued noncompliance with their discovery obligations prejudiced the defendants' ability to effectively depose witnesses. See Emails between Joseph Anci and Ambrose Wotorson, Jr., dated Mar. 12, 2015, appended as Ex. P to Third Anci Decl., at 1. Plaintiffs' counsel responded that he "reasonably expect[ed]" to produce "some" documents on March 12 and 13, and would correct the deficiencies in the interrogatories and document production by March 16, 2015. Id. Plaintiffs' counsel also stated that he expected to serve "an [a]utomatic disclosure form" — presumably referring to Rule 26(a)(1) disclosures — by March 16, 2015. Id. Notwithstanding these promises, neither Rule 26(a)(1) disclosures nor signed interrogatories were timely provided. See D. Supp. at 5.

On March 19, 2015, plaintiffs' counsel wrote to the court asserting that plaintiffs would "amend, supplement and provide written discovery responses by March 20, 2015." Letter from Ambrose Wotorson, Jr., filed Mar. 19, 2015 (Docket # 36), at 1. This did not occur, however.D. Supp. at 5. On March 20, 2015, plaintiffs' counsel asked Judge Dolinger for permission to serve additional discovery demands by April 3, 2015, with responses to be served by April 30, 2015. Letter from Ambrose Wotorson, Jr., filed Mar. 20, 2015 (Docket # 37), at 2. Judge Dolinger denied this request. See Memorandum Endorsement, filed Mar. 20, 2015 (Docket # 38), at 2 ("We decline to extend discovery further for any other purpose; therefore, the parties' request for additional paper discovery extending beyond March 31, 2015 is denied.").

On March 23, 2015, Judge Dolinger granted defendants' application for $2,887.50 in fees and required "plaintiffs and their counsel" to make the payment no later than April 6, 2015. Order, filed Mar. 23, 2015 (Docket # 40), at 1. The payment was not made by the court-ordered deadline. D. Supp. at 5.

All of the plaintiffs and individual defendants were deposed in March and April 2015.² On May 26, 2015, defendants again emailed plaintiffs' counsel about plaintiffs' failure to provide discovery and failure to pay the discovery sanctions. See Email from Joseph Anci to Ambrose Wotorson, Jr., dated May 26, 2015, appended as Ex. S to Third Anci Decl. These topics were raised at a conference on June 9, 2015, at which time plaintiffs sought permission to make a motion for sanctions. D. Supp. at 6.

To date, plaintiffs have still not provided Rule 26(a)(1) disclosures or signed and verified interrogatory answers. Id.³ It also appears that they have tendered payment of only part of the court-ordered sanctions. See Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint Pursuant to Federal Rules of Civil Procedure 37 and 41, filed June 22, 2015 (Docket # 60), at 6 n. 2; Email from Joseph Anci to Ambrose Wotorson, Jr., dated May 26, 2015, appended as Ex. S to Third Anci Decl.

The defendants filed their motions for summary judgment and for sanctions on June 22, 2015. See Notice of Motion, filed June 22, 2015 (Docket # 61); Notice of Motion, filed June 22, 2015 (Docket # 58).⁴ As to the summary judgment motion, the plaintiffs' response was due on July 22, 2015. See Memorandum Endorsement on Letter from Ambrose Wotorson, Jr., filed May 4, 2015 (Docket # 49), at 2. The response was not filed on that date, however. On July 24, 2015, the defendants asked the court to consider the summary judgment motion fully submitted. See Letter from Joseph Anci, filed July 24, 2015 (Docket # 74). On July 27, 2015 — five days after the response was originally due — plaintiffs moved for an extension of time to respond to the summary judgment motion. Letter from Ambrose Wotorson, Jr., filed July 27, 2015 (Docket# 75). The court granted that motion "reluctantly," giving the plaintiffs until "close of business" on July 27 to file their opposition. Memorandum Endorsement on Letter from Ambrose Wotorson, Jr., filed July 27, 2015 (Docket # 76). Judge Dolinger noted that the plaintiffs had "missed virtually every deadline set by this court throughout this litigation." Id.

The plaintiffs filed an incomplete opposition on July 28 — six days after the original deadline. See Plaintiffs' Memorandum of Law in Opposition to Motion for Summary Judgment, filed July 28, 2015 (Docket #...