Second Circuit Affirms Dismissal under Federal Civil Rule 37

Per Agiwal v. Mid Island Mortg. Corp., --- F.3d ----, 2009 WL 350717 (2d Cir. Feb. 13, 2009):

Several factors may be useful in evaluating a district court's exercise of discretion to dismiss an action under Rule 37. These include: “(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.” Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y.2002) (citing Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 852-54 (2d Cir.1995)). Further, we note that dismissal pursuant to Rule 37 is appropriate “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a sanction.” Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).

The record before us reveals no abuse of discretion by the District Court in affirming Magistrate Judge Bloom's recommendation of dismissal. Agiwal's communications with the Magistrate Judge and opposing counsel indicate that he understood the Magistrate Judge's discovery orders and realized that timely compliance was expected. Yet, over a span of approximately six months-from the Magistrate Judge's October 5, 2006 scheduling order to Agiwal's third scheduled deposition on April 16, 2007-Agiwal defied all of her orders, each of which warned of the possibility of sanctions, including dismissal. Even when the Magistrate Judge imposed a lesser sanction, Agiwal still failed to comply with any of defendant's discovery requests. Under these circumstances, Agiwal's alleged health problems and the fact that English is his second language cannot excuse his repeated failures to comply with the Magistrate Judge's orders. Agiwal reported no health problems for the vast majority of the six month period at issue, and his filings demonstrate fluency in written English. His appearance before our Court demonstrated an adequate command of spoken English.

Accordingly, we have little trouble concluding that Agiwal's noncompliance, including his failure to appear at three scheduled depositions, amounted to “sustained and willful intransigence in the face of repeated and explicit warnings from the court that the refusal to comply with court orders ... would result in the dismissal of [the] action.” Valentine, 29 F.3d at 50. Magistrate Judge Bloom handled this matter with exceptional patience and care; to her credit, she exceeded what was required in the circumstances.