Copeland v. Rosen

194 F.R.D. 127, 2000 U.S. Dist. LEXIS 8243, 2000 WL 776995
CourtDistrict Court, S.D. New York
DecidedJune 15, 2000
DocketNo. 96 Civ. 6308(PKL)
StatusPublished
Cited by11 cases

This text of 194 F.R.D. 127 (Copeland v. Rosen) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Copeland v. Rosen, 194 F.R.D. 127, 2000 U.S. Dist. LEXIS 8243, 2000 WL 776995 (S.D.N.Y. 2000).

Opinion

OPINION AND ORDER

LEISURE, District Judge.

The Court is faced with plaintiffs counsel’s repeated failure to comply with the deadlines and orders of this Court. On three occasions, the Court has warned plaintiffs counsel that her dilatory manner of proceeding and her failure to heed the Court’s orders would result in dismissal of plaintiffs suit. Having considered counsel’s most recent transgressions and the tortured history of her conduct in this case, the Court finds that the severe sanction of dismissal is warranted by counsel’s chronic delays and her disregard for the orders of the Court.

BACKGROUND

In 1996, plaintiff brought this Title YII action alleging race and gender discrimination resulting in his termination by the Board of Education in July 1993. On March 18, 1997, following the withdrawal of plaintiffs counsel from the case, the Honorable Theodore H. Katz, United States Magistrate [128]*128Judge, granted plaintiff an adjournment of two months to retain a new attorney. On September 16, 1997, Joan Franklin Mosley informed the Court that she had been retained to represent plaintiff in this action, although she waited nearly eight months before filing a formal appearance.1

Since her representation of plaintiff commenced in September 1997, Ms. Mosley has repeatedly tested the patience of the Court and her adversary with her dilatory and oftentimes disrespectful conduct. Upon entering the ease, Ms. Mosley immediately requested an extension of Judge Katz’s longstanding2 discovery deadline, from September 19,1997, to January 5,1998. Judge Katz granted this request, although, by Ms. Mosley’s own admission, her request “should have been made fourteen days before the expiration of the discovery closure date,” which she unabashedly noted' was “due to [her} failing to note this requirement in the scheduling order.” Ms. Mosley subsequently requested and received an additional month to complete discovery, at which time Judge Katz indicated that no further extensions would be granted beyond February 5, 1998.

By letter dated February 5, 1998, the day discovery was to be completed, Ms. Mosley made a third request for an extension of time for discovery, this time through April 5, 1998. Ms. Mosley noted in her letter that her adversary would not consent to the extension, which position appeared appropriate under the circumstances.3 Ms. Mosley alleged that the extension was necessary because, inter alia, her “February calendar [was] full.” By memorandum endorsement dated the same day, Judge Katz denied Ms. Mosley’s request, noting: “Today is the discovery deadline extension that was granted, with a notation that there would be no further extensions of time.”

During a March 24, 1998, conference before this Court (Leisure, J.), plaintiff attempted to reopen discovery, notwithstanding Judge Katz’s ruling that no further extensions would be granted. The Court informed Ms. Mosley that her failure to conduct any discovery during the first four months of her involvement in the case was inexcusable, and denied her request for further discovery. The Court inquired into the reasons for her nonfeasance, to which she replied that she was a sole practitioner and “did- the best that she could.” In response, the Court issued the first of its warnings that, if such conduct persisted, plaintiffs suit would be dismissed for failure to prosecute and failure to obey the orders of the Court. Plaintiff ignored the Court’s ruling and continued to press her request for further discovery. The Court informed Ms. Mosley that her request was denied, and that she would not be permitted to pursue the issue any further. In response, plaintiff threatened to file a re-cusal motion, which was not ultimately brought. The Court contemplated imposing contempt sanctions on Ms. Mosley for her disrespect during this conference, but chose not to do so at that time. In this regard, she was reminded that in proceedings before the Court, she could represent her client’s interests fully and still conduct herself as an officer of the Court.

[129]*129On April 14, 1998, the Court set briefing deadlines for defendants’ motion for summary judgment, enlarging time at defendants’ request. The Court extended plaintiffs time to oppose the motion until June 15, 1998. Notwithstanding this extension, Ms. Mosley failed to file an opposition brief, placing her client’s case in serious jeopardy. Having missed the deadline, Ms. Mosley then contacted the Court, requesting an extension after the fact. On June 18, 1998, the Court warned Ms. Mosley for the second time that her failure to comply with the Court’s orders might result in sanctions, including dismissal of the action. The Court ordered plaintiffs counsel to file her papers by June 22. Notwithstanding the Court’s stern warning and the additional time she was afforded, Ms. Mosley failed to file plaintiffs papers until June 24, at which time counsel made a request “that the enclosed memorandum in opposition to defendants’ motion for summary judgment and supporting documents by accepted by this Court and that plaintiff not be ruled in default.” Ms. Mosley indicated that she was “unable to meet that deadline due to multiple reasons, including my youngest son’s sudden illness and a mix-up at the duplicating company, where my exhibits were being copied. The underlying reason, however, has been my health problems that impaired my judgment in estimating the time, realistically, in which I could present plaintiffs response.” The Court reluctantly accepted plaintiffs papers on June 25, 1998.

In June 1999, defendants requested leave to depose Dr. Yarbrough, an expert witness heavily relied upon by plaintiff in her opposition papers, and to depose plaintiff himself with respect to issues raised for the first time in the Yarbrough affidavit. Leave was granted, but plaintiffs counsel was uncooperative in locating and producing Dr. Yar-brough for deposition. In anticipation of a pre-trial conference scheduled for late October 1999, defendants informed the Court that plaintiff had required repeated adjournments of these depositions, and that Dr. Yarbrough had not been fully deposed because he had problems with the agreed-upon schedule for the deposition, and the climate in the deposition room. Ms. Mosley requested that the October 1999 conference be adjourned, to which defendants strenuously objected. In addition, Ms. Mosley informed defendants that she wished to depose a number of teachers from plaintiffs school. Defendants told Ms. Mosley that they would not consent to this, “noting that plaintiff had the opportunity to depose such persons prior to the filing of the summary judgment motion but failed to do so. Plaintiffs counsel stated her belief that this Court had countenanced such additional discovery.” Letter dated Oct. 15, 1999, from William S.J. Fraenkel, Esq., to the Court.

At a conference on October 25, 1999, the Court announced its concern that plaintiff seemed interested in taking “endless discovery,” and suggested that the matter should be transferred back to Judge Katz for supervision, particularly in light of Judge Katz’s order that no additional discovery would be allowed. Defendants finally consented to the additional depositions plaintiff wished to take, notwithstanding their earlier objections and the concern of the Court. The Court directed the parties to complete these depositions prior to January 14, 2000, when a conference was to be held. Plaintiffs counsel forced the adjournment of this conference until February 24, 2000, citing her own convenience.

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Cite This Page — Counsel Stack

Bluebook (online)
194 F.R.D. 127, 2000 U.S. Dist. LEXIS 8243, 2000 WL 776995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/copeland-v-rosen-nysd-2000.