Romano v. Ulrich

W.D. New York

Romano v. Ulrich

DecidedJune 26, 2023

Docket1:13-cv-00633

StatusUnknown

This text of Romano v. Ulrich (Romano v. Ulrich) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Romano v. Ulrich, (W.D.N.Y. 2023).

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Opinion

TES DISTRIC KB SE SILED UNITED STATES DISTRICT COURT S 73 WESTERN DISTRICT OF NEW YORK waSe we Sa Leary “ oon _ LOEWENGUT □ LeSTeRN pisTRIc ANTHONY ROMANO, Plaintiff, v. 13-CV-633 (JLS)(MJR) KEVIN ULRICH, C.O., JOSEPH CIANCI, C.0., GARY COVIELLO, C.O., DANIEL LEONARD, C.O., ROY BELL, C.0., GREGORY CARNEY, C.O., JEFFREY HAZARD, BRIAN FEENEY, JEFFREY LACAPRUCCIA, JEFFREY MILLER, and MARK CUNNINGHAM, Defendants.

DECISION AND ORDER Before the Court is Defendants’ Motion to Compel and/or for Sanctions. See Dkt. 138. Defendants assert that Plaintiff Anthony Romano failed to appear for his deposition, which was scheduled for June 14, 2023, despite this Court's order that the deposition be completed by June 30, 2023. See Dkt. 138-1. Defendants “request that the Court issue an order directing that Plaintiff appear for his deposition by a date certain or his complaint will be dismissed with prejudice.” Id. § 10. Plaintiffs counsel confirms that “Defendants scheduled [Romano’s] deposition for June 14, 2023” and arranged for Romano “to be deposed via video from Attica Correctional Facility.” Dkt. 140 4 5. However, “[m]inutes after” the parties “were scheduled to begin, the court reporter received an email from Attica” indicating that Romano “refused to attend the deposition.” Jd. § 7. Romano “later wrote to the

Court indicating that he missed his deposition because he had ‘chest pains’ and was in Attica’s ‘emergency room.” Id, { 9. Plaintiffs counsel “do[es] not know whether this is true” and was “only told that Mr. Romano refused to attend.” Id. { 10. Nevertheless, counsel requests that the Court afford Romano “another opportunity to appear for a deposition” given that “this case has been pending for a decade” and the claims are serious in nature. Id. § 11. The Federal Rules of Civil Procedure “give district courts broad discretion to manage the manner in which discovery proceeds.” In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003). A district court “may dismiss an action if a party fails to attend a deposition of that party.” Agiwal v. Mid Island Morig. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (citing Fed. R. Civ. P. 37(d)). In the pro se context, “dismissal with prejudice may be imposed” only after “a warning has been given that noncompliance can result in dismissal.” Musgrave v. Wolf, 186 F. App’x 422, 424 (2d Cir. 2005) (internal citation omitted). Here, Romano has the benefit of pro bono counsel. Nevertheless, the Court, in its discretion, will afford Romano another opportunity to complete his deposition. As such, the Court ORDERS that Romano’s deposition shall be completed by July 21, 2023. Romano is hereby warned that if he fails to appear for and complete his deposition on the date and at the time noticed by Defendants, this action will be

dismissed with prejudice pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v).. This deposition must be completed by July 21, 2023.

SO ORDERED. Dated: June 26, 2023 Buffalo, New York

JOHXM SINATRA, JR. {U TED STATES DISTRICP JUDGE

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TES DISTRIC KB SE SILED UNITED STATES DISTRICT COURT S 73 WESTERN DISTRICT OF NEW YORK waSe we Sa Leary “ oon _ LOEWENGUT □ LeSTeRN pisTRIc ANTHONY ROMANO, Plaintiff, v. 13-CV-633 (JLS)(MJR) KEVIN ULRICH, C.O., JOSEPH CIANCI, C.0., GARY COVIELLO, C.O., DANIEL LEONARD, C.O., ROY BELL, C.0., GREGORY CARNEY, C.O., JEFFREY HAZARD, BRIAN FEENEY, JEFFREY LACAPRUCCIA, JEFFREY MILLER, and MARK CUNNINGHAM, Defendants.

DECISION AND ORDER Before the Court is Defendants’ Motion to Compel and/or for Sanctions. See Dkt. 138. Defendants assert that Plaintiff Anthony Romano failed to appear for his deposition, which was scheduled for June 14, 2023, despite this Court's order that the deposition be completed by June 30, 2023. See Dkt. 138-1. Defendants “request that the Court issue an order directing that Plaintiff appear for his deposition by a date certain or his complaint will be dismissed with prejudice.” Id. § 10. Plaintiffs counsel confirms that “Defendants scheduled [Romano’s] deposition for June 14, 2023” and arranged for Romano “to be deposed via video from Attica Correctional Facility.” Dkt. 140 4 5. However, “[m]inutes after” the parties “were scheduled to begin, the court reporter received an email from Attica” indicating that Romano “refused to attend the deposition.” Jd. § 7. Romano “later wrote to the

Court indicating that he missed his deposition because he had ‘chest pains’ and was in Attica’s ‘emergency room.” Id, { 9. Plaintiffs counsel “do[es] not know whether this is true” and was “only told that Mr. Romano refused to attend.” Id. { 10. Nevertheless, counsel requests that the Court afford Romano “another opportunity to appear for a deposition” given that “this case has been pending for a decade” and the claims are serious in nature. Id. § 11. The Federal Rules of Civil Procedure “give district courts broad discretion to manage the manner in which discovery proceeds.” In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003). A district court “may dismiss an action if a party fails to attend a deposition of that party.” Agiwal v. Mid Island Morig. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (citing Fed. R. Civ. P. 37(d)). In the pro se context, “dismissal with prejudice may be imposed” only after “a warning has been given that noncompliance can result in dismissal.” Musgrave v. Wolf, 186 F. App’x 422, 424 (2d Cir. 2005) (internal citation omitted). Here, Romano has the benefit of pro bono counsel. Nevertheless, the Court, in its discretion, will afford Romano another opportunity to complete his deposition. As such, the Court ORDERS that Romano’s deposition shall be completed by July 21, 2023. Romano is hereby warned that if he fails to appear for and complete his deposition on the date and at the time noticed by Defendants, this action will be

dismissed with prejudice pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v).. This deposition must be completed by July 21, 2023.

SO ORDERED. Dated: June 26, 2023 Buffalo, New York

JOHXM SINATRA, JR. {U TED STATES DISTRICP JUDGE

In Re: Subpoena Issued to Dennis Friedman, Esq. Of Gibson, Dunn & Crutcher Llp, Hechinger Investment Company of Delaware, Inc., Debtor the Official Committee of Unsecured Creditors of Hechinger Investment Company of Delaware, Inc. On Behalf of Hechinger Investment Company of Delaware, Inc. v. Dennis Friedman, Esq., John W. Hechinger, Sr., John W. Hechinger, Jr., W. Clark McLelland Kenneth J. Cort, Ann D. Jordan, Robert S. Parker, S. Ross Hechinger, Melvin A. Wilmore, Alan J. Zakon, Fleet Retail Finance Group

350 F.3d 65 (Second Circuit, 2003)

Agiwal v. Mid Island Mortgage Corp.

555 F.3d 298 (Second Circuit, 2009)

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