Frank v. Visions Multi Media Group-WUFO Radio LLC

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

ROBERT FRANK,

:

Plaintiff, :

:

v. : Case No. 1:17-CV-817

:

VISIONS MULTI MEDIA GROUP – WUFO :

RADIO LLC, :

:

Defendant. :

OPINION AND ORDER

(ECF 23)

Plaintiff Robert Frank brings this case against Visions

Multi Media Group-WUFO Radio LLC (“WUFO”), claiming that he was

discriminated against on the basis of his religion and his

gender when he was terminated from his job. His Complaint seeks

monetary damages for lost wages and benefits, compensatory

damages for mental anguish and emotional distress, punitive

damages, reinstatement, interest, costs and attorneys’ fees.

Currently before the Court is Frank’s motion to dismiss

WUFO’s answer and entry of judgment for Plaintiff. (ECF No. 23).

For the reasons that follow, the Court grants the motion to

dismiss WUFO’s answer, and grants to Plaintiff judgment on his

complaint.

BACKGROUND

In the Complaint, Frank claims that he began working at

WUFO on January 4, 2016. During the course of his employment, he

was subjected to “numerous comments regarding his religion and

gender” by WUFO’s CEO/Operations Manager, acting General

Manager, and majority owner, Sheila Brown. Specifically, the

Complaint alleges that Ms. Brown: (1) told Frank he was not “God

like” and that God had told her he needed to perform in a

“Christian manner”; (2) would pray with people in the office and

pressured Frank to become “a member” of her religious

organization; (3) would often state her preference for working

with female staff; and (4) accused Frank of organizing a

“station takeover.” Frank was terminated on April 28, 2016.

On or about June 15, 2016, Frank filed a charge of unlawful

discrimination with the Equal Employment Opportunity Commission

(“EEOC”). On May 23, 2017 the EEOC issued a right to sue letter.

Frank filed suit in this Court on August 18, 2017. WUFO answered

the Complaint and filed affirmative defenses. (ECF No. 4). The

parties appeared for a scheduling conference, and a pretrial

case management order was issued on April 2, 2018. On April 30,

2018, Frank filed a motion to dismiss WUFO’s answer based upon

opposing counsel’s failure to comply with the case management

order. (ECF No. 8). On May 17, 2018, the Court issued a text

order setting a response deadline of June 18, 2018, and a reply

deadline of July 2, 2018. The Court went on to state that should

oral argument be necessary, a hearing would be scheduled at a

later date. On June 25, 2018, with no response having been

filed, the Court granted as unopposed Frank’s motion to dismiss

defendant’s answer. (ECF No. 10).

On July 10, 2018, Frank applied to the Court to enter

default against WUFO pursuant to Federal Rule of Civil Procedure

(FRCP) 55. (ECF No. 11). In support of his application, Frank

submitted an affidavit in which he stated that WUFO had failed

to provide mandatory disclosures or comply with mandatory ADR

provisions. The clerk’s office entered a default on July 11,

2018. (ECF No. 12). On October 16, 2018, Frank filed a motion

for default judgment. Defendant submitted a response to the

motion for default judgment, arguing that due to his heavy trial

calendar counsel had “inadvertently failed” to send plaintiff’s

counsel voluntary discovery. Defendant went on to state that

this inadvertent failure did not prejudice plaintiff, nor was it

“willful or intentionally done to defy this Court’s Order or to

protract this litigation.”

On August 22, 2019, the Court issued an order denying

Frank’s motion for default judgment. (ECF No. 17). The Court

ruled that Defendant’s answer would be due within 30 days, that

discovery must be concluded by January 20, 2020 and that motions

must be made by February 21, 2020. The Court found that Frank

was entitled to attorney’s fees for time spent on the default

judgment requests and entry. Defendant filed an answer on

September 21, 2019.

On February 21, 2020, Frank filed a motion to dismiss

defendant’s answer and grant judgment to Plaintiff. (ECF No.

23). Frank claims that WUFO never provided the mandatory

disclosure required by FRCP 26(a)(1). Frank asks that he be

“awarded judgment against Defendant on both liability and for

the damages previously put forth before this Court in

Plaintiff’s Declaration of October 12, 2018 (now to be amended

with any and all additional damages that have accrued since the

prior submission), plus all of Plaintiff’s attorney’s fees

herein.” (ECF No. 23-1).

WUFO filed a response to the motion to dismiss. (ECF No.

25). Defense counsel argues that Plaintiff had received all of

the documents he was entitled to when Frank took possession of

his work file, that Plaintiff has unclean hands regarding

disclosure, and that Plaintiff “knows exactly who those

witnesses are and where they are located.” Id. WUFO asks the

Court to allow the matter to proceed to trial.

DISCUSSION

FRCP Rule 26(a) states that “[e]xcept as exempted by Rule

26(a)(1)(B) or as otherwise stipulated or ordered by the court,

a party must, without awaiting a discovery request, provide to

the other parties” the information listed out in Rule

26(a)(1)(A)(i)-(iv). Fed. R. Civ. P. 26(a)(1)(A). This action

does not fall under one of the categories exempted by Rule

26(a)(1)(B).

FRCP Rule 37(c)(1) provides that “if a party fails to

provide information or identify a witness as required by Rule

26(a),” the court may, “on motion and after giving an

opportunity to be heard,” impose appropriate sanctions

“including any of the orders listed in Rule 37(b)(2)(A)(i)-

(vi).” Fed. R. Civ. P. 37(c)(1). Under Rule 37(b)(2)(A)(v), a

court may dismiss “the action or proceeding in whole or in part”

and under Rule 37(b)(2)(A)(vi), a court may render “a default

judgment against the disobedient party.” Fed. R. Civ. P.

37(b)(2)(A)(v)–(vi).

District courts have discretion to impose the severe

sanction of dismissal or default judgment against parties who

fail to disclose under Rule 26. See, e.g., Design Strategy, Inc.

v. Davis, 469 F.3d 284, 294 (2d Cir. 2006) (“A district court

has wide discretion to impose sanctions, including severe

sanctions, under Federal Rule of Civil Procedure 37, and its

ruling will be reversed only if it constitutes an abuse of

discretion”); Brennan-Centrella v. Ritz-Craft Corp., 788 F.

App’x 799, 803 (2d Cir. 2019) (“Federal Rule of Civil Procedure

37 permits the court to sanction a party that fails to make the

disclosures that Federal Rule of Civil Procedure 26 requires.”)

(citing Fed. R. Civ. P. 37(c)(1)); Owen v. No Parking Today,

Inc., 280 F.R.D. 106, 110 (S.D.N.Y. 2011) (“These sanctions

mentioned in Rule 37(c)(1)(C) include orders ‘(i) directing that

the matters embraced in the order or other designated facts be

taken as established for purposes of the action, as the

prevailing party claims; … (iii) striking pleadings in whole or

in part; …[and] (vi) rendering a default judgment against the

disobedient party.’ Fed. R. Civ. P. 37(b)(2)(A).”).

“‘[D]ismissal under Fed. R. Civ. P. 37 is a drastic remedy

that should be imposed only in extreme circumstances,’ usually

after consideration of alternative, less drastic sanctions.”

John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d

1172, 1176 (2d Cir. 1988) (citation and internal quotation marks

omitted). “Severe sanctions are justified, however, when the

failure to comply with a court order is due to willfulness or

bad faith, or is otherwise culpable.” Daval Steel Prods. v. M/V

Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991); see National

Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,

643, 96 S. Ct. 2778, 2781 (1976) (per curiam) (availability of

severe sanctions, such as outright dismissal, necessary both to

penalize parties whose conduct may warrant such a sanction and

to deter others from similar conduct); see also Burrell v. AT&T

Corp., 282 F. App’x 66, 67-68 (2d Cir. 2008) (finding no abuse

of discretion where district court dismissed complaint for

discovery abuse after the party was on notice of the possibility

of dismissal and had suffered lesser sanctions but continued to

obstruct discovery and fail to comply with court orders).

Such a severe sanction is warranted here. Defendant’s

continued failure to provide Rule 26(a) disclosures and

Defendant’s contention that mandatory disclosure is unnecessary

because Plaintiff “is well aware of the two witnesses who

carried out his termination” is an abuse of the judicial

process. This Court has already acted once to excuse a lack of

action on the part of defense counsel when, in its order on

August 21, 2019, it set aside the entry of default for good

cause. At that time, the Court saw fit to award the lesser

sanction of attorneys’ fees to Plaintiff. This small sanction,

however, was not enough to deter Defendant. Despite the Court’s

order that discovery conclude by January 20, 2020, Defendant

failed to provide disclosures by that deadline and still has not

done so. This time, Defendant’s persistent lack of disclosure

has no excuse.

Accordingly, the Court grants Plaintiff’s motion to dismiss

Defendant’s answer and grants default judgment to Plaintiff.

Plaintiff has asked for the damages previously put forward in

his Declaration of October 12, 2018 “to be amended with any and

all additional damages that have accrued since the prior

submission, plus all of Plaintiff’s attorney’s fees herein.”

(ECF No. 23-1). Plaintiff shall submit a declaration detailing

the total amount of damages to the Court within 30 days of the

date of this order.

CONCLUSION

For the reasons set forth above, the Court grants

Plaintiff’s motion to dismiss Defendant’s answer and grants

judgment to Plaintiff. Plaintiff shall submit an updated damages

declaration to the Court within 30 days of the date of this

order.

DATED at Burlington, Vermont, this 24th day of September,

2020.

/s/ William K. Sessions III

William K. Sessions III

U.S. District Court Judge