Neufeld v. Neufeld

172 F.R.D. 115, 38 Fed. R. Serv. 3d 1107, 1997 U.S. Dist. LEXIS 4620, 1997 WL 178623
CourtDistrict Court, S.D. New York
DecidedApril 9, 1997
DocketNo. 93 Civil 8131(CBM)
StatusPublished
Cited by9 cases

This text of 172 F.R.D. 115 (Neufeld v. Neufeld) 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
Neufeld v. Neufeld, 172 F.R.D. 115, 38 Fed. R. Serv. 3d 1107, 1997 U.S. Dist. LEXIS 4620, 1997 WL 178623 (S.D.N.Y. 1997).

Opinion

MEMORANDUM OPINION

MOTLEY, Senior District Judge.

This ease was originally filed on November 28, 1993. At one point, by order dated September 16, 1994, this case was placed on the suspense calendar at plaintiffs request to give plaintiff, Shirley Neufeld, an opportunity to secure funds with which to employ counsel. She employed counsel and the case was removed from the suspense calendar. The second plaintiff, Nettie Neufeld then joined the ease. As the docket' sheet and record will reflect, this case has encountered numerous ’ delays. Defendant has also changed counsel.

Despite the fact that this matter is on the eve of trial, plaintiffs have failed to submit a pretrial memorandum and a joint pretrial order has also not been filed. Because plaintiffs have not offered any explanation for their failure to file this important material and because plaintiffs have engaged in • a pattern of failing to comply with the orders of this court, the court has decided that dismissal of this action pursuant to Federal Rule of Civil Procedure 16(f) is warranted. In addition, defendant is sanctioned $500 pursuant to Rule 16(f) for failing to file a pretrial memorandum and his portion of a joint pretrial order.

BACKGROUND

Plaintiffs Shirley and Nettle Neufeld allege that they have suffered from the intentional infliction of emotional distress at the hands of Jacob Neufeld, Shirley Neufeld’s half-brother and Nettie Neufeld’s son.

The complaint alleges that Nettle Neufeld and her husband, Israel Neufeld, each executed last wills and testaments naming Shirley Neufeld as executrix and leaving fifty percent of their estate to her, twenty-five percent to her sister, Ann Hirsch, and twenty-five percent of their estate to defendant. Nettle and Israel Neufeld each executed cod[117]*117icils to their wills that required the disinheritance of any heir attempting to contest the will. Defendant is allegedly irate because he was not named executor and felt he was not to receive an adequate portion of the estate.

It is alleged that defendant has engaged in a course of extreme and harassing conduct designed to upset plaintiffs emotionally, so that Shirley Neufeld would suffer a nervous breakdown and defendant would gain control of all of Nettie Neufeld’s assets, including her house.

Due to the failure of both parties to adhere to the pretrial scheduling orders of this court, discovery took an inordinately long time to be, completed. This court ordered on January 26, 1996 that depositions be taken in the month of May. Plaintiffs’ counsel and defendant’s counsel agreed on a tentative date of May 22 to depose plaintiff Shirley Neufeld, but this was never confirmed, and defendant did not file a Notice of Deposition until May 29, 1996, demanding that plaintiff appear on June 10, 1996. One day before this deposition was to take place, plaintiffs’ counsel informed defendant’s counsel that the deposition would have to be rescheduled. However, the deposition was never rescheduled, and the court’s intervention was required.

On June 27, 1996, this court ordered that all depositions be taken on July 8,9, and 10 and that no extensions would be granted under any circumstances. Rather than comply with the court’s order, plaintiff Shirley Neufeld “discharged” her'attorney, informing both the court and defendant’s counsel of this fact.1 Plaintiffs’ former counsel sent a letter to the court on July 8, informing the court that he could not conduct the deposition scheduled for defendant given the fact that he was dismissed by his clients. He moved on that date to be relieved as attorney of record. Defendant nonetheless appeared on July 82, the date of his deposition, and July 9, the date of plaintiffs deposition, but as neither plaintiff nor her attorney of record appeared, no depositions were taken. On July 17, defendant filed a motion for dismissal and attorney’s fees. By order dated August 8, 1996, the Court gave plaintiffs until August 31 to obtain new counsel and until September 18 to serve and file an answer to defendant’s motion.

Plaintiffs did indeed obtain another attorney (their third in this matter) and filed an answer to defendant’s motion. By order dated September 26, 1996, the court reserved judgment on defendant’s motion and scheduled plaintiff Shirley Neufeld’s deposition for Wednesday, November 6, 1996. The court explicitly warned plaintiff in that order that her failure to appear for the deposition would result in the dismissal of her case. A copy of the order was sent via certified mail to plaintiffs home address.

Plaintiff did appear for her deposition on November 6, thus the court did not dismiss the case at that time. However, by order and opinion dated November 14, 1996, the court granted defendant’s motion for attorney’s fees in the amount of $1669.20 for plaintiffs earlier failure to appear for her deposition on July 8.

Another pretrial conference was held on December 13, 1996. At that conference, the court ordered that discovery be completed by December 31, 1996, that pretrial memoranda and a joint pretrial order be filed by February 14, 1997, and that trial commence on April 14, 1997. Since that time, defendant has written to this court on January 17,1997, indicating that plaintiff Shirley Neufeld had not complied with this court’s order directing her to pay plaintiff the amount of $1669.20, but neither party has submitted a pretrial memorandum, and a joint pretrial order has not been filed, despite the fact that this material was to be submitted on February 14, 1997, nearly two months ago, and trial is scheduled to begin within a week. No explanation has been given as to why the joint [118]*118pretrial order and pretrial memoranda have not been filed.

DISCUSSION

F.R.C.P. 16(f) reads in relevant part:

If a party or party’s attorney fails to obey a scheduling order or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, ... the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B),(C),(D).

Thus, if a party fails to comply with a pretrial or scheduling order, the court is permitted to use any of the sanctions listed in F.R.C.P. 37, including dismissal. Moreover, the Rule states clearly that the court does not need to wait for the opposing party to move for dismissal; the sanction may be applied sua sponte.

Because Rule 16(f) incorporates portions of Rule 37, “the application of Rule 37 standards when dismissing a complaint under Rule 16(f) has been recognized as appropriate.” Quiles v. Beth Israel Medical Center, 168 F.R.D. 15, 18 (S.D.N.Y.1996) (citing Salahuddin v. Harris, 782 F.2d 1127, 1133 (2d Cir.1986)); Johnson v. M. Melnick & Co., 1996 WL 239994, at *1 (S.D.N.Y.1996). See also Fed.R.Civ.P. 16

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Bluebook (online)
172 F.R.D. 115, 38 Fed. R. Serv. 3d 1107, 1997 U.S. Dist. LEXIS 4620, 1997 WL 178623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neufeld-v-neufeld-nysd-1997.