Masi v. Steely

242 F.R.D. 278, 68 Fed. R. Serv. 3d 509, 2007 U.S. Dist. LEXIS 42919, 2007 WL 1679835
CourtDistrict Court, S.D. New York
DecidedJune 12, 2007
DocketNo. 04 Civ. 6087(RJH)
StatusPublished
Cited by3 cases

This text of 242 F.R.D. 278 (Masi v. Steely) 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
Masi v. Steely, 242 F.R.D. 278, 68 Fed. R. Serv. 3d 509, 2007 U.S. Dist. LEXIS 42919, 2007 WL 1679835 (S.D.N.Y. 2007).

Opinion

MEMORANDUM OPINION AND ORDER

HOLWELL, District Judge.

This action arises from an alleged assault by defendant William Steely on plaintiff Garibaldi Masi at an Equinox Fitness Club (“Club”) in New York City on August 7, 2003. (Compl. 119.) Plaintiff filed suit in this Court on August 6, 2004, stating two claims against Steely for intentional assault and battery, negligence, and recklessness, and one claim against Equinox Holdings, Inc. (“Equinox”) for negligence in the ownership, operation, management, maintenance, and supervision of the Club. (See Compl. UU 8-12; 13-18; 19-23.) Steely moves to dismiss the complaint with prejudice, pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, for plaintiffs failure to comply with court orders and discovery requests. For the reasons set forth below, Steely’s motion is granted.

[280]*280BACKGROUND

Plaintiff claims that Steely, without provocation, punched him in the face on August 7, 2003, breaking his cheekbone. (See Pl.’s Mot. for Reconsideration of Sanctions (“Pl.’s Mot. Reconsider.”), at 1.) Steely has answered the Complaint, denying all of the allegations therein, and has asserted an affirmative defense of self-defense. He has also filed a counterclaim alleging malicious prosecution in connection with plaintiffs pursuit of a criminal complaint against Steely, which was ultimately dismissed. Defendant Equinox has also answered the Complaint, denying all of the allegations therein, and has cross-claimed against Steely for indemnification.

First Request for Production of Documents

On January 25, 2005, the parties submitted a Proposed Joint Scheduling Report that was endorsed by this Court. (See Lankier Aff. (Feb. 3, 2006), at H 2 & Ex. A.) According to the Scheduling Report, fact discovery was to be completed by June 30,2005.

On April 24, 2005, Steely served plaintiff with his First Request for the Production of Documents (“First Request”). (See Lankier Aff. 113 & Ex. B (First Request).) Request No. 14 of the First Request demanded production of documents “concerning any legal actions to which Plaintiff has been a party in since 1995.” (See Lankier Aff. 113 & Ex. C (Deegan Aff. (Feb. 2, 2006), at If 7).) Under Rule 34 of the Federal Rules of Civil Procedure, plaintiff was obligated to produce these documents by May 4, 2005. On April 27, attorney James Deegan, representing Steely at that time, went to the office of Edward Sivin, representing plaintiff at that time, to review documents from an unrelated lawsuit brought by plaintiff against the City of New York and the New York City Police Department in 2003 (“2003 Lawsuit”). (See Deegan Aff. at 117.) Deegan has testified that he reviewed “two banker’s boxes full of documents relating to Mr. Masi’s lawsuit.” (Id. H 4.) Sivin agreed to duplicate all of these documents, with the exception of several folders for which he said he would prepare a privilege log. (Id. 115.) Today, more than two years later, these documents have yet to be produced in full.

The First Request also called for the production of all documents concerning plaintiffs medical treatment and condition. (See First Request KU 3-5; 12-13.) Plaintiff identified the existence of medical records from Bellevue Hospital, Dr. Momtaheni, and Dr. Burkes. (See Letter from Manganelli (Mar. 24, 2006) (“Mot. for Further Sanctions”), at 2.) It is clear from correspondence that was produced that highly relevant medical records were in the possession of plaintiffs counsel, however, no such records were produced. (See id. at 9 & Ex. 1 (Letter from David M. Momtaheni, D.M.D. (May 12, 2005)).) It is also evident that Dr. Burkes, plaintiffs medical expert, reviewed a variety of medical records that also remain unpro-duced. (See id. 9 & Ex. 6; Letter from Manganelli (Oct. 3, 2006), at Ex. 1.)

Second Request for Production of Documents

Defendants deposed plaintiff on April 26, 2005. (See Lankier Aff. (Feb. 3, 2006), at Ex. T (Masi Dep.).) During the deposition, defendants discovered facts that cast doubt on plaintiffs claim that he was a resident of New Jersey, and, therefore, whether there is diversity jurisdiction over plaintiffs claims. (See Letter from Lankier (Apr. 29, 2005), at 1.) Specifically, plaintiff testified that he had been a resident of New York until June 2004, at which time he moved to a friend’s house in New Jersey where he resided on August 6, 2004, the date that he filed the Complaint in this case. (Id.) He said that his friend did not charge him rent and that he did not have a lease while he stayed there. (Id.) He further testified that the car he owned on August 6 was registered in New York, that he was at that time employed in New York, that the physicians whom he was seeing for his injuries were in New York City and Long Island, and that he received mail in New York in July 2004 — all at the same time that he was allegedly living in New Jersey. (Id.) He also testified that he purchased and registered a car in New York in November 2004 and that he continued to hold a New York driver’s license. (Id.)

As a result of these admissions, on May 6, 2005, Steely served plaintiff with his Second [281]*281Request for the Production of Documents (“Second Request”). (See Lankier Aff. 114 & Ex. D.) The Second Request demanded production of documents that might indicate the address used by plaintiff at the time that he filed the Complaint, including: lease agreements; rent payments; utility, telephone, cable, and internet bills; bank accounts; tax returns; vehicle registration and insurance documents; documents concerning employment, professional organizations, and plaintiffs real estate license; and calendars. (Id.) Responses to the Second Request were due by June 6, 2005, before the fact discovery deadline of June 30 in effect at that point. (See Lankier Aff. 11112,4.)

September 16 Order

On May 13, 2005, the Court directed the parties to meet and confer by May 20, 2005, regarding any outstanding discovery disputes, and further directed the parties to submit letter memoranda setting forth any areas of dispute by May 27, 2005. (See Order [18].) On May 19, however, plaintiffs counsel filed a motion to withdraw, citing “irreconcilable conflicts” with his client. (Sivin Aff., May 17, 2005, at 112.) The Court stayed discovery until June 23 pending the resolution of this motion. (See Order [19].) On June 16 plaintiff hired attorney William House to represent him; accordingly, the Court granted Sivin’s motion to withdraw and set a new deadline for fact discovery of August 31, 2005. (See Order [23]; Pl.’s Mot. Reconsider. 4.) At the end of July, having received no response to his Second Request, Steely’s counsel sent a letter to House requesting plaintiffs’ response and production of all documents responsive to the Second Request by August 3. Steely’s counsel also renewed his request for copies of the documents relevant to the 2003 Lawsuit. (See Lankier Aff., Ex. E.) August 3 came and went, however, with no communication from plaintiff or his counsel.

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242 F.R.D. 278, 68 Fed. R. Serv. 3d 509, 2007 U.S. Dist. LEXIS 42919, 2007 WL 1679835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masi-v-steely-nysd-2007.