Copeland v. Rosen

208 F.R.D. 507, 167 Educ. L. Rep. 775, 2002 U.S. Dist. LEXIS 11282
CourtDistrict Court, S.D. New York
DecidedJune 24, 2002
DocketNo. 96 Civ. 6308(PKL)
StatusPublished
Cited by1 cases

This text of 208 F.R.D. 507 (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, 208 F.R.D. 507, 167 Educ. L. Rep. 775, 2002 U.S. Dist. LEXIS 11282 (S.D.N.Y. 2002).

Opinion

OPINION AND ORDER

LEISURE, District Judge.

Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and based on the prior rulings of this Court and the Second Circuit Court of Appeals, defendants Cheryl Rosen and the New York City Board of Education, move to dismiss plaintiffs case presently before this Court on remand from the Second Circuit. For the following reasons, defendants’ motion is granted.

I. BACKGROUND

The facts of this case are set forth in detail in two earlier opinions of this Court, Copeland v. Rosen, 194 F.R.D. 127 (S.D.N.Y.2000) (“Copeland I”); 196 F.R.D. 20 (S.D.N.Y. 2000) (“Copeland II”); and in the opinion of the Second Circuit, Copeland v. Rosen, 25 Fed.Appx. 17, 2001 WL 1486007 (2d Cir.2001) (“Copeland III’). Accordingly, the Court discusses the facts only to the extent necessary to decide the instant motion.

In 1996, plaintiff brought this action under Title VII, 42 U.S.C. §§ 2000e et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; and New York State Executive Law § 296 (also known as the New York State Human Rights Law) alleging race and gender discrimination and retaliation resulting in his termination by the Board of Education in July 1993. In Copeland I, after explicating plaintiffs counsel’s continued failure to comply with the Court’s deadlines and orders, this Court dismissed plaintiffs case without prejudice pursuant to Rules 41(b) and 16(f) of the Federal Rules of Civil Procedure. See 194 F.R.D. at 134. After the Court denied plaintiffs motion for reconsideration pursuant to Local Rule 6.3 in Copeland II, 196 F.R.D. at 22, plaintiff appealed to the Second Circuit Court of Appeals. In Copeland III, the Second Circuit remanded the case so that this Court could consider two discrete issues; (1) whether this Court in dismissing plaintiffs claims without prejudice intended to effect a final dismissal of plaintiffs Title VII claims; and (2) because this Court erred in attributing one adjournment to plaintiffs counsel rather than defendants’ counsel, would this Court change its view regarding plaintiffs failure to prosecute the action. See Copeland III, 25 Fed. Appx. 17,19-20, 2001 WL 1486007.

As noted in Copeland I, the protracted history of this case reveals that since the inception of her representation of plaintiff in this action, Joan Franklin Mosley, Esq. has “repeatedly tested the patience of the Court and her adversary with her dilatory and of[509]*509tentimes disrespectful conduct.” Copeland I, 194 F.R.D. at 128. The first action taken by Ms. Mosley in September 1997 upon entering this case was to request a more than three and a half month extension of Magistrate Judge Katz’s long-standing discovery deadline. Ms. Mosley admitted at the time that the request was made fourteen days late because she failed “to note this requirement in the scheduling order.” Copeland I, 194 F.R.D. at 128. Thereafter, Ms. Mosley requested an additional month to complete discovery and Judge Katz indicated at that time that no further extensions would be granted beyond February 5,1998. See id. Nonetheless, on the day discovery was to be completed, Ms. Mosley requested a third extension of time for discovery, which was denied. Despite this ruling by Judge Katz, at a March 24, 1998 conference, Ms. Mosley again attempted to reopen discovery at which time the Court informed her that her failure to conduct any discovery during the first four months was inexcusable and that if such conduct persisted, plaintiffs suit would be dismissed for failure to prosecute and for failure to obey the orders of the Court. See id. In response, Ms. Mosley threatened to file a recusal motion which ultimately was not brought.

On April 24, 1998, this Court set briefing deadlines for the parties on defendants’ motion for summary judgment, extending time at defendants’ request. The Court also extended plaintiffs time to submit opposition papers, however, Ms. Mosley failed to submit an opposition brief, “placing her client’s case in serious jeopardy.” Copeland I, 194 F.R.D. at 129. Shortly after missing the deadline, Ms. Mosley requested an extension and she was warned for the second time that her failure to comply with Court orders might result in dismissal of the action. See id. After ordering plaintiffs counsel to file her papers by June 22,1998, she failed to file plaintiffs opposition papers until June 24 citing her child’s illness, a mix-up at the duplicating company, and her own health problems that “impaired [her] judgment in estimating time, realistically, in which [she] could present plaintiffs response.” Id. The Court “reluctantly” accepted the papers on June 25, 1998. See id. Thereafter, defendants’ motion for summary judgment was granted in part and denied in part. See Copeland v. Rosen, 38 F.Supp.2d 298 (S.D.N.Y.1999).

In June 1999, defendants requested leave to depose Dr. Yarbrough, an expert witness heavily relied upon by plaintiff in his opposition papers, and to depose plaintiff with respect to issues raised for the first time in the Yarbrough affidavit. See Copeland I, 194 F.R.D. at 129. Leave was granted, but plaintiffs counsel seemed to be uncooperative in locating and producing Dr. Yarbrough 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. See id. 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.” See id. (citing 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 be transferred back to Judge Katz for supervision, particularly in light of Judge Katz’s order that no additional discovery would be allowed. Nonetheless, defendants agreed to some additional depositions and the Court directed the parties to complete these depositions prior to January 14, 2000, when a conference was to be held.

The next conference was held on February [510]*51024, 20001 at which time counsel informed the Court that all discovery had been completed.

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208 F.R.D. 507, 167 Educ. L. Rep. 775, 2002 U.S. Dist. LEXIS 11282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/copeland-v-rosen-nysd-2002.