15‐868‐cv
Smith v. Conn. Depʹt of Corr., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 21st day of March, two thousand sixteen.
PRESENT: RALPH K. WINTER,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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SHARON SMITH,
Plaintiff‐Appellant,
v. 15‐868‐cv
CONNECTICUT DEPARTMENT OF CORRECTION,
HARTFORD CORRECTIONAL CENTER,
Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: Josephine S. Miller, Danbury, Connecticut.
FOR DEFENDANTS‐APPELLEES: ANN E. LYNCH, Assistant Attorney General,
for George Jepsen, Attorney General of
Connecticut, Hartford, Connecticut.
Appeal from the United States District Court for the District of
Connecticut (Bryant, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff‐appellant Sharon Smith appeals the judgment of the district court
entered January 21, 2015 dismissing her complaint against defendants‐appellants,
Connecticut Department of Correction and Hartford Correctional Center, alleging
employment discrimination under Title VII of the Civil Rights Act of 1964. On January
7, 2015, the district court granted defendantsʹ supplemental motion to dismiss the case
pursuant to Federal Rules of Civil Procedure 37 and 41, based on plaintiffʹs failure to
adhere to court deadlines, produce discovery, and comply with court orders. We
assume the partiesʹ familiarity with the underlying facts, procedural history, and issues
on appeal.
Federal Rule of Civil Procedure 37 allows a district court to dismiss an
action if a party fails to obey a discovery order or otherwise meet its discovery
obligations. Fed. R. Civ. P. 37(b)(2) (ʺIf a party . . . fails to obey an order to provide or
permit discovery . . . the court where the action is pending may issue further just orders.
They may include . . . dismissing the action or proceeding in whole or in part . . . .ʺ).
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ʺWe review a district courtʹs imposition of sanctions under Rule 37, including dismissal,
for abuse of discretion.ʺ Agiwal v. Mid Island Mort. Corp., 555 F.3d 298, 302 (2d Cir.
2009).
ʺ[D]ismissal with prejudice is a harsh remedy to be used only in extreme
situations, and then only when a court finds willfulness, bad faith, or any faultʺ on the
part of the party. Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990)
(internal quotation marks omitted). Still, it ʺmay be imposed . . . so long as a warning
has been given that noncompliance can result in dismissal.ʺ Valentine v. Museum of
Modern Art, 29 F.3d 47, 50 (2d Cir. 1994). We evaluate a district courtʹs dismissal by
examining the following non‐exclusive factors: ʺ(1) the willfulness of the non‐compliant
party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the
duration of the period of noncompliance[;] and (4) whether the non‐compliant party
had been warned of the consequences of . . . noncompliance.ʺ Agiwal, 555 F.3d at 302
(quoting Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002); see also S. New
Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010).
Plaintiff missed at least four discovery deadlines. First, after plaintiff did
not respond to initial requests for discovery, the court granted defendantsʹ motion to
compel responses and ordered plaintiff to respond by October 29, 2014. Plaintiff did
not heed that order. Second, plaintiff failed to provide complete discovery by the
courtʹs original November 3, 2014 deadline. Third, after the court thereafter extended
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the deadline for completion of all discovery to November 19, 2014, plaintiff provided
only incomplete and unverified responses to defendantsʹ requests. Finally, after the
court again extended the deadline for completion of all discovery until December 29,
2014, plaintiff failed to meet the new date. Indeed, plaintiff never fully complied with
her discovery obligations under Rule 26. Apart from appearing for her deposition,
discovery had not materially progressed, and the district court reasonably believed that
plaintiff had neither collected nor produced relevant documents.
Moreover, the excuses that plaintiff asserted ‐‐ an unsubstantiated medical
condition and personal international travel ‐‐ were reasonably rejected by the district
court. The material offered by plaintiffʹs counsel in support of the medical condition
ʺappear[ed] to be self‐generated and specifically note[d] that the condition [was] minor
and age related.ʺ Joint App. at 22.
Finally, plaintiff was explicitly warned that failure to abide by court
orders would result in dismissal. At the December 17, 2014 conference ‐‐ following
plaintiffʹs third failure to comply with the courtʹs discovery orders ‐‐ the court
specifically warned plaintiffʹs counsel that the case would be dismissed if discovery was
not produced by December 29, 2014. Thus, plaintiff ʺcannot credibly argue that [s]he
was not sufficiently warned that serious sanctions were imminent.ʺ Guggenheim Capital,
LLC v. Birnbaum, 722 F.3d 444, 453 (2d Cir. 2013).
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While dismissal of an action is the most severe sanction for
noncompliance with discovery orders, see Nat’l Hockey League v. Metro. Hockey Club, Inc.,
427 U.S. 639, 642‐43 (1976), it is warranted where plaintiffʹs unexcused noncompliance
while on notice of dismissal demonstrates ʺwillfulness or conscious disregard for the
discovery process,ʺ Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990) (per curiam)
(quoting Founding Church of Scientology v. Webster, 802 F.2d 1448, 1458 (D.C. Cir. 1986))
(affirming dismissal pursuant to Rule 37(b)(2)(C) in part because district court
repeatedly allowed plaintiff additional time to comply with discovery orders and
warned plaintiff about threat of dismissal). Because plaintiff failed to fulfill her
obligation to comply with the courtʹs orders, the district court acted within its discretion
in dismissing her action.
We have considered all of plaintiffʹs additional arguments and find them
to be without merit. For the reasons stated herein, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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