Agiwal v. HSBC Mortgage Corp.

11-568-cv Agiwal v. HSBC Mortg. Corp. 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 COURT’S 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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 15th day of May, two thousand twelve. 5 PRESENT: RICHARD C. WESLEY, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges, 8 J. GARVAN MURTHA,* 9 District Judge. 10 __________________________________________ 11 12 BAIJNATH AGIWAL, 13 Plaintiff-Appellant, 14 v. 11-568-cv 15 16 17 HSBC MORTGAGE CORPORATION, 18 UNUM GROUP, 19 Defendants-Appellees. 20 ___________________________________________ 21 22 FOR APPELLANT: Baijnath Agiwal, pro se, Fresh Meadows, 23 NY. 24 * The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation. 1 FOR APPELLEES: ALLAN S. BLOOM (Erin E. LaRuffa, on the 2 brief), Paul Hastings LLP, New York, NY. 3 Appeal from a judgment of the United States District 4 Court for the Eastern District of New York (Amon, C.J.). 5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 6 AND DECREED that the judgment of the district court is 7 AFFIRMED. 8 Plaintiff-Appellant Baijnath Agiwal, pro se, appeals 9 the district court’s dismissal of his action pursuant to 10 Federal Rule of Civil Procedure 37(b)(2)(A)(v) due to his 11 noncompliance with discovery orders. We assume the parties’ 12 familiarity with the underlying facts, procedural history, 13 and issues on appeal. 14 We review the imposition of sanctions for abuse of 15 discretion, and the factual findings made in support of the 16 district court’s decision for clear error. See S. New 17 England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 143 (2d 18 Cir. 2010). In Agiwal’s previous case before this Court, we 19 identified several useful factors for evaluating a district 20 court’s dismissal of an action under Rule 37: “(1) the 21 willfulness of the non-compliant party or the reason for 22 noncompliance; (2) the efficacy of lesser sanctions; (3) the 23 duration of the period of noncompliance, and (4) whether the 24 non-compliant party had been warned of the consequences of 2 1 . . . noncompliance.” Agiwal v. Mid Island Mortg. Corp., 2 555 F.3d 298, 302 (2d Cir. 2009) (internal quotation marks 3 omitted); see also S. New England Tel. Co., 624 F.3d at 144. 4 Where a plaintiff appears pro se, dismissal with prejudice 5 may be imposed only if “a warning has been given that 6 noncompliance can result in dismissal.” Valentine v. Museum 7 of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994). 8 We have reviewed the record in light of these 9 principles and now affirm the district court’s dismissal of 10 Agiwal’s action. The record amply supports the district 11 court’s finding that Agiwal’s noncompliance was willful. 12 Agiwal repeatedly defied discovery orders, despite the 13 magistrate judge’s careful efforts to explain his 14 obligations under those orders and Agiwal’s confirmation 15 that he understood what he was required to do. Agiwal also 16 failed to appear at his scheduled deposition without 17 providing adequate notice or explanation to either Defendant 18 HSBC Mortgage Corporation or the district court. The 19 efficacy of lesser sanctions to correct such behavior is 20 doubtful, given that the Rule 37 dismissal of one of 21 Agiwal’s previous actions did not deter him from his 22 noncompliant behavior in this case. See Agiwal, 555 F.3d at 23 303. Instead, Agiwal persisted in his noncompliance for a 3 1 period of approximately three months. After his failure to 2 comply with the court’s orders entered on May 6, 2010 and 3 June 25, 2010, the magistrate judge explicitly warned 4 Agiwal, both orally and in written orders, that continued 5 refusal to comply would result in her recommending the 6 dismissal of his action. Notwithstanding those warnings, 7 Agiwal again disregarded the magistrate judge’s orders. 8 To the extent Agiwal challenges the denial of his 9 request for the magistrate judge’s recusal, his challenge is 10 without merit. The magistrate judge’s impartiality could 11 not reasonably be questioned under the circumstances. See 12 United States v. Lovaglia, 954 F.2d 811, 814-15 (2d Cir. 13 1992). 14 We have considered Agiwal’s remaining arguments and 15 find them to be without merit. For the foregoing reasons, 16 the judgment of the district court is hereby AFFIRMED. 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 4