Appendix — Bobal v. Rensselaer Polytechnic Institute

Supreme Court brief1991

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SUPREME COURT OF THE UNITED STATES

October Term, 1990

GAIL ELIZABETH BOBAL.

Petitioner,

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, BOARD oF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE. OR. GERALD MOSS, DR. PUNKAJ K. DAS.

DOR. DONALD S. RODBELL, OR. J. LAWRENCE

KATZ. OR. HYO SUB YOON, DOR. STEPHEN €.

WIBERLEY, OR. EDWARD J. SMITH, OR. HENRY

A. SCARTON, OR. ALLEN ZELMAN, DR. GARY

JUDD. OR. WILLIAM C. JENNINGS, DR. JOHN 8B.

SRUNSKI,

Respondents.

Petition for Writ of Certiori to the

United States Court of Appeals

for the Second Circuit

Appendix to Petition

Gat! Elizabeth Boba!

Petitioner, pro se

P.O. Box 1025

Edison, New Jersey 08818-1025

(908) 985-2043

SUPREME COURT OF THE UNITED STATES

October Term, 1990

GAIL ELIZABETH BOBAL,

Petitioner,

-V.*

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, DR. GERALD MOSS, DR. PUNKAJ K. DAS,

DR. DONALD S. RODBELL, OR. J. LAWRENCE

KATZ, OR. HYO SUB YOON, OR. STEPHEN E.

WIBERLEY, DR. EDWARD J. SMITH, OR. HENRY

A. SCARTON, DR. ALLEN ZELMAN, DR. GARY

JUDD, OR. WILLIAM C. JENNINGS, OR. JOHN 8.

BRUNSKI,

Respondents.

Petition for Writ of Certiori to the

United States Court of Appeals

for the Second Circuit

Appendix to Petition

Gail Elizabeth Bobal

Petitioner, pro se

P.0. Box 1025

Edison, New Jersey 08818-1025

(908) 985-2043

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 8S2—August Term, 1989

(Argued February 28, 1990 Decided May 15, 1990)

Docket No. 89-7413

EO —————

GAIL E_IZABETH BOBAL,

Plaintiff-Appellant,

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI.

TUTE, DR. GERALD Moss, DR. PUNKA/ K. DAS,

DR. DONALD S. RODBELL, DR. STEPHEN E.

WIBERLEY, DR. EDWARD J. SMITH, DR. HENRY A.

SCARTON, DR. ALLEN ZELMAN, DR. GARY JUDD,

DR. WILLIAM C. JENNINGS, DR. JOHN B.

BRUNSKI,

Defendants-Appellees.

Before:

OAKES, Chief Judge,

FEINBERG and WALKER, Circuit Judges.

3741

Appeal from orders entered in the United States Dis-

trict Court for the Northern District of New York, Neal

P. McCurn, Chief Judge, dismissing majority of pro se

plainuff’s claims pursuant to Fed. R. Civ. P. 12(b)6,

dismissing remainder of case as a sanction pursuant to

Fed. R. Civ. P. 16(f), 37(d) and 41(b), and denying

motion to disqualify defendants’ counsel.

Affirmed in part, reversed and remanded in part.

GAIL ELIZABETH BOBAL, Edison, New Jer-

sey, Plaintiff-Appellant, pro se.

MIRIAM M. NETTER, Troy, New York (Pat-

tison, Sampson, Ginsberg & Griffin,

P.C., Troy, New York, of counsel), for

Defendants-A ppellees.

—_—_—_——_~<—-—

WALKER, Circuit Judge:

Plaintiff pro se Gail Elizabeth Bobal appeals from

two dismissal orders and various other denials of relief

entered against her by the District Court for the North-

ern District of New York (Neal P. McCurn, C. J.).

Bobal advances three distinct arguments. First, she

asserts that the district court erred when, pursuant to

Fed. R. Civ. P. 12(6)(6), it dismissed with prejudice six-

teen of her twenty causes of action and limited the relief

available in one of the remaining four. Second, she

argues that the district court abused its discretion when

it dismissed with prejudice the remaining four causes of

3742

action as a result of plaintiff's violation of a discovery

order, and then improperly refused to grant her relief

from its final judgment pursuant to Fed. R. Civ. P.

60(b). Third, she argues that the court below abused its

discretion by refusing to disqualify defendants’ counsel.

We find no error in the district court’s denial of

Bobal’s disqualification motion and its dismissal of the

majority of her causes of action. Nonetheless we con-

clude that the district court abused its discretion by dis-

missing with prejudice the remainder of Bobal’s suit

without first warning this pro se plaintiff that such a

harsh sanction was in the offing.

BACKGROUND

The complaint in this action revolves around plain-

tiff’s attempts to obtain a graduate degree in biomedical

engineering from defendant Rensselaer Polytechnic Insti-

tute (“‘RPI'’). She charges the school and members of

its past and current faculty with, inter alia,

delaying, obstructing, and preventing her from

obtaining her doctorate. [The suit’s] nature can be

described as a breach of duty to deal reasonably,

fairly, and in good faith . . . [with a student who]

imparted her nonfunded scientific findings to the

school. This case involves wrongful encumbrance of

the student's intellectual property . . . and a bad-

faith breach of contract through malicious [sex} dis-

crimination.

Just as she perceived conspiracies against her while a

student at RPI—as her Amended Complaint makes

clear—so too does plaintiff now see conspiracies within

3743

the court system designed to thwart her claims. She

charges Judge McCurn with “‘impeachable offenses"’

and alleges that a recently adopted local rule for the

Northern District of New York ‘“‘was hastily written and

enacted to prejudice her interests."" She also bases her

motion to disqualify defendants’ counsel on an alleged

conspiracy between opposing counsel and attorneys for

the Legal Aid Society (‘‘Legal Aid’") with whom she

once consulted, but who declined to represent her.

On December 20, 1985, after oral argument and in an

opinion delivered from the bench and later memorialized

im @ two-page order, the district court dismissed sixteen

of the twenty causes of action pleaded, and limied

recovery under one of the remaining four. On May |4,

1987 Judge McCurn dismissed with prejudice the

remainder of plaintiff's su as a sanction for plaintiff*s

deliberate violation of a court order. His dismissal must

be placed in us proper context.

On May 8, 1986, Judge McCurn held a status confer-

ence; Bobal did not appear because, she later said. she

had never received the clerk's letter notifying her of the

conference. The court then rescheduled the conference

for June 4, 1986. At that conference, the district court

attempted to fashion a discovery schedule for the action.

He ordered Bobal to appear for her deposition on July

14 and 1S, 1986. She stated that “‘! will not be available

. . This is an improper conference and I am not a

party to this conference."" She then left the courtroom.

Judge McCurn memorialized his discovery order on

June 20, 1986. Bobal forthrightly admits that she vio-

lated the court order, but attempts to justify her con-

duct because she ‘‘conclude[d] that the order would

irreparably prejudice her case.""

3744

Neither at the June 4 conference nor in the June 20

order did Judge McCurn indicate that Bobal’s failure to

comply with his order would result in the dismissal of

her case. On September 4, 1986, by which time plaintiff

had failed to contact defendants’ counsel! to attempt to

reschedule her deposition, defendants moved to dismiss

the case, pursuant to Fed. R. Civ. P. 16(f), 37(d) and

41(b). Judge McCurn granted the motion on May 14,

1987, and on July 6, 1987 denied Bobal’s request to

amend both his December 1985 order dismissing the

majority of her claims and his May 1987 order dismiss-

ing the remainder.

On May 14, 1988, Bobal moved—presumably pursu-

amt to Fed. R. Civ. P. 60 and the applicable ethical

canons—to disqualify defendants’ counsel, Miriam Net-

ter, on the basis of Netter’s past position as president of

the Northeastern New York branch of Legal Aid, which

Bobal had once contacted in an attempt to retain coun-

sel to bring an action against RPI. The district court

conducted a hearing on October 3, 1988. On January

28, 1989, the district court denied the motion and denied

Bobal’s request for reconsideration on June 17, 1989

This appeal followed.

DISCUSSION

In more than eighty pages of appellate briefs, and

with the organization and presentation of a six-hundred

page appendix, Bobal proves herself capable of consid-

erable legal research. Bobal's Amended Complaint.

however, is not always clear, and its occasional contu-

sion highlights the weakness of the majority of the dis-

missed claims. In examining Bobal’s submissions, we are

guided by the Supreme Court's mandate that pro se

3745

papers Se held ‘‘to less stringent standards than tormal

pleadings drafted by lawvers.’’ Haines v. Kerner, 404

U.S. $19, $20 (1972), as well as our own instructions

that ““a pro se litigant should be afforded every reason

adie opportunity to demonstrate that he [or she] has a

vahd claim.” Satchell v. Dilworth, “48 F.2d “S81, “S85

(2d Cir. 1984).

We must determine whether, given her pro se status

and the potentially colorable nature of a: least some of!

the dismussed claims, Bobal should have received what

all parties agree was a harsh sanction. At the outset, we

emphasize that appellant's charges of judicial miscon-

duct remaim conclusory and frivolous, and lack anv sup-

port im the record. In fact, the record reveals that Judge

MicCurn displaved considerable patience with Bobal even

as she displayed little with him—such as turning her

back on the judge and walking out of his courtroom in

the muddle of a conterence. Were Judge McCurn biased

agama the appellant, one might have expected him to

grant defendants’ original motion to dismiss the action

m «S entirety. Instead he carefully considered the

motion and took pains to preserve four causes of action

for further development. Those four claims include

musrepresemtation; conversion; breach of contract: and

wmeerference with contractual relations, which was cor-

rectly limuted—over plaintiff's objections—to acts of!

faculty members acting outside the scope of their

employment

We have examined the remaining claims in Bobal’:

Amended Complaint and substantially agree with the

district court's conclusions. Several claims dismissed by

the distract court are not recognized in New York

Appellant cites no relevant authoritv—nor could we find

3746

anv—to support her claims for the substantive torts o!

“abuse of discretion,”’ ‘‘intumidation,”” ““conspiracy’” or

““peonage.”"’ Other dismissed claims merely repeat and

reallege wrongs properly subsumed within those claims

the district court left intact in us December 1985 ruling.

Plainuffs “breach of promise."" “‘abuse of power,”

**malfeasance,"* ‘trust and fiduciary dutv"’ and particu-

larly garbled ‘‘quasi contract liabiliies’’ claims raise

issues that are most properly and fully addressed in her

breach of contract claim. Her ‘“‘antutrust violations’

claim 1s frivolous, and merely realleges the contentions

raised in her contract and conversion claims.

Sull other claims, even when read in the light most

favorable to plaintiff, fail as a matter of law. Her claim

of prima facie tort fails because she did not, and appar-

ently could not in good faith, allege that the defendant+

were motivated solely by malicious motives. See. ¢.¢..

Burns Jackson Miller Summu & Spitzer v. Lindner. *9

N.¥.2d 314, 333, 464 N.Y.S.2d 712, 721 (1983). She

alleges the tort of waste, yet that tort requires an injury

to real property, which could not be alleged in this case,

as plaintiff candidly admits; she instead envisions an

extension of present law from real to personal property

Her “‘imterference with prospective advantage’’ claim

fails to plead the essential clements of the tort. See. ¢.2..

Williamson, Picket, Gross, Inc. v. 400 Park Avenue

Co., 63 A.D.2d 880, 405 N.Y.S.2d 709 (ist Dep't 1978),

aff'd, 47 N.Y.25 769, 417 N.Y¥.S.2d 460 (1979): Rosen

here v. Del-Mar Division, £6 A.D.2d £76, 391 N.Y S.2d

482 (2d Dep't 1977). Her claims for ‘‘defamation and

malicious injurious talsenood or disparagement’’ cnarec,

in effect, slander, yet she fails to plead adequately the

actual words spoken, publication or special damages

See. ¢.g.. Goldberg v. Sitomer. Sitomer & Porves, 97

3747

A.D.2d 114, 469 N.Y.S.2d 81 (ist Dep't 1983), aff'd, 63

N.Y.2d 831, 482 N.Y.S.2d 268, cert. denied, 470 U.S.

1028 (1985).

Finally, her civil rights claim cannot withstand scru-

tiny as pleaded. Apparently, she attempted to charge a

violation of 42 U.S.C. § 1983, but cannot properly

allege that any of the defendants acted ‘‘under color ot

state law."" It remains clear, however, that Bobal has

chareed sex discrimination: ‘‘Faculty defendants agreed

to and did conspire together for the purpose of depriv-

ing me of my civil rights of equal protection and equal

privileges and immunities under the law and acted in

their individual capacities . . . [and were] motivated by

discriminatory animus against me due to my female gen-

der." It is possible to imagine a potentially colorable

claim brought pursuant to Title IX of the Education

Amendments of 1972, which forbids sex discrimination

in tederally funded education programs. 20 U.S.C

3§ 1681-1686. While we of course do not reach the mer-

its Of such a claim, and indeed cannot determine from

the record before us whether such a claim can be

advanced in good faith, we have previously explained

that a pro se plaintiff who brings a civil rights action

‘**should be ‘fairly freely’ afforded an opportunity to

amend [her] complaint, even if [she] makes the request

after the court has entered judgment dismissing [her]

Original complaint." Satchell v. Dilworth, 748 F.2d at

78S (citation omitted). Accordingly, the district court

erred by refusing to afford Bobal an opportunity to

replead this single cause of action.

The district court dismissed the remainder of Bobal's

action as a sanction for her failure to appear at her own

deposition. The court based its dismissal of Bobal’s

3748

actions on Fed. R. Civ. P. 16(f), 37(d) and 41(b). We

review the dismissal only under Rule 37(d), which

addresses a party's failure to appear for her deposition

and thus specifically applies to the present case. There 1s

no need to reach either Rule 16(f) or Rule 41(b). See

Salahuddin v. Harris, 782 F.2d Wi27, 1133-34 (2d Cir.

1986) ("* ‘Rule 37 . . . addresses itself with particularity

to the consequences of a failure to make discovery

.. « « There is no need to resort to Rule 41(b), which

appears in that part of the Rules concerned with (rials

and which lacks such specific references to

discovery.” "") (quoting Sociere Internationale Pour Par-

ticipations Industrielles et Commerciales v. Rogers, 337

U.S. 197, 207 (1958)).

The imposition of sanctions under Rule 37 ‘is within

"he discretion of the district court and a decision to dis-

muss an action for tailure to comply with discovery

orders will only be reversed if the decision constitutes an

abuse of that discretion." John B. Hull, Inc. v. Water-

burv Petroleum Products, Inc., 84§ F.2d 1172, 1176 (2d

Cir. 1988). See also Sieck v. Russo, 369 F.2d 131, 134

(2d Cir. 1989) (“We . . . prefer to . . . provide the

teeth to enforce discovery orders by leaving it to the dis-

trict Court to determine which sanction from among the

available range is appropriate."’).

However, dismissal with prejudice is a harsh remedy

to be used only in extreme situations, Theilmann v. Rut-

land Hospital, Inc., 4$§ F.2d 883, $S$ (2d Cir. 1972),

and then only when a court finds ‘‘willfulness, bad

faith, or any fault’’ on the part of the prospective depo-

nent. See Salahuddin ». Harris, 782 F.2d at 1132 (cita-

rion omitted). In Sieck we specifically noted that the

district court order ‘‘included the warning that a default

3749

judgment in the full amount sought by plaintiff could be

entered against any defendant who did not appear [for

the scheduled deposition]."’ 869 F.2d at 133. In Schenck

v. Bear, Stearns & Co., $83 F.2d $8, $9 (2d Cir. 1978),

this court reversed a district court's dismissal for failure

tO prosecute, noting that “‘there had been no... . judi-

cial participation indicating that a dismissal might be in

the offing."’ See also Jones v. Niagara Frontier Trans-

portation Authority, 836 F.2d 731, 734 (2d Cir. 1987)

(‘The Magistrate advised Jones that he was obligated to

answer ail questions ... [and] warned Jones that

defendants might move for sanctions, ‘because of what

(he] construe{d] to be [Jones’] deliberate attempts to

delay and frustrate the discovery in this case.’ *"), cert.

denied, ___. ~ U.S. —___, 109 S. Cr. 74 (1988).

As counsel for appellee torthrightly admitted at argu-

ment, Judge McCurn never gave appellant any such

warning. It remains unclear why the first sanction in this

case was the harshest sanction available. This is not to

suggest that any district court would be unreasonable if

it expressed some frustration with appellant's occasion-

ally dilatory and disrespectful conduct. Nor is it meant

to excuse such conduct. Yet pro se litigants are not gen-

erally familiar with the procedures and practices of the

courts. While they have no right to ignore or violate

court orders, they must nonetheless be made aware of

the possibile consequences of their actions. Under the

circumstances of the present case, we conclude that

before the district court could impose the harsh sanction

of dismissal against this pro se litigant, it should have

informed her that violation of a court order would

result in a dismissal of her case with prejudice. We thus

remand to the district court the four claims left intact in

3750

A10

that court's original decision dismissing the majority of

appellant's claims.

Finally, Bobal’s contention that appellee's counse!

must be disqualified lacks merit. A failure to disqualits

counsel will be overturned only upon a snowing that tne

district court abused its discretion. ffull v. Celanese

Corp., $13 F.2d $68, $71 (2d Cir. 1975). As we have

previously explained,

[Disqualification has been ordered only in essen-

tially two kinds of cases: (1) where an attorney's

conflict of interests in violation of Canons £ and 9

of the Code . . . undermines the court's confidence

in the vigor of the attorney's representation of his

client, . . . of more commonly (2) where the atror

ney 1s at least potentially in a position to use priv

leged information concerning the other side throuch

prior representation

Board of Education v. Nyquist, $90 F.2d i241, 1246 (24

Cir. 1979) (citations and footnotes omitted).

Netter, counsel for defendants, served as the volunteer

President of the Board of Directors of a Legal Aid

branch office. At one point in this lengthy litigation,

during which Bobal allegedly contacted more than sev-

enty attorneys in an attempt to obtain legal representa-

tion, she contacted a Legal Aid staff attorney as weil.

At the hearing before the district court, Netter testified

that she was never a staff attorney, never learned of

Bobal’s contact with the staff attorney, and had no

opportunity to share whatever information that lawver

| Gewen the G@spomuon of the present appeal. «¢ need not address (ne

dusarvct court's demail of rehef from «as final cuemeusal orcer purwant

10 Fed R Cw P Ged)

37S)

att

might have obtained. She explained that her only con-

tact with clients occurred when they requested Legal Aid

to take further action after it had already accepted the

client's case in the first instance. Significantly, Bobal’'s

case was never accepted by Legal Aid.

Netter’s testimony was supported by the live testi-

mony of Michael Foster, the Legal Aid staff attorney

involved, and by the affidavit testimony of Denison

Ray, the Legal Aid Executive Director, who outlined

Netter’s limited role at the organization. Judge McCurn

clearly credited their testimony, determined that there

was not even the potential for conflict, and denied

Bobal’s motion. In reaching this conclusion, Judge

McCurn did not abuse his discretion. Appellant asks us

to find a conflict of interest whenever a potential litigant

consults a legal services staff attorney about a complaint

against a possible defendant who is represented by a

legal services Board member. We decline to adopt that

holding, especially where, as here, the legal services

agency refuses to accept the case and no evidence what-

soever has been advanced to suggest even a potential

conflict.

CONCLUSION

The district court’s denial of Bobal's disqualification

motion and its dismissal of the majority of her claims

are affirmed. The four claims dismissed as a sanction

are remanded to the district court, and appellant is to be

afforded an opportunity to replead a fifth claim alleging

sexual discrimination. We also take this opportunity to

advise appellant, as well as all pro se litigants, that court

orders—even those they think unwise—must be hon-

ored, and may be challenged on appeal in due course.

3752

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dismiss the entire Complaint as to all par-

ties except Defendant Rensselaer Polytech-

nic Institute, on the grounds that (a) Ren-

sselaer Polytechnic Institute and the Board

of Trustees would have identical liability

to the Plaintiff, and (b) all of the in-

dividually named Defendants acted in the

course of their employment; the Memorandum

of Law and the Reply Affidavit of Miriam

M. Netter, Esq., sworn to November 14, 1985

1m support of the motion, and the Memoran-

dum of Law, Responsive Paper of Gail Eli-

zabeth Bobal, Plaintiff, pro se, dated Oc-

tober 31, 1985 in opposition to the motion,

and this matter having duly come before the

undersigned on December 3, 1985, and De-

fendants having appeared by their attor-

neys, Pattison, Sampson, Ginsberg & Grif-

fin, P.C. (Miriam M. Netter, Esq., of coun-

sel) in support of said motion, and Plain-

tiff having appeared pro se itn opposition

thereto, and both parties having had an

Al4

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opportunity to be heard by this Court, and

upon consideration of all prior pleadings

herein, it 1s hereby

ORDERED that Defendants' motion to dis-

miss 18 granted with regard to the follow-

ing claims: #1 Prima Facie Tort; #2 Mal-

feasance; #3 Abuse of Discretion; #4 Intim-

idation; #6 Defamation; #7 Malicious Inju-

rious Falsehood, Disparagement; #8 Waste;

#10 Conspiracy; #12 Interference with Pro-

spective Advantage; #14 Breach of Trust;

#15 Breach of Promise; #16 Abuse of Power;

#17 Quasi-Contract; #18 Peonage; #19 Civil

Rights Violations; #20 Anti-Trust Viola-

tions; and it is further

ORDERED that Claim Number 11 for Inter-

ference with Contractual Relations is dis-

missed as to Rensselaer Polytechnic I[nsti-

tute, the Board of Trustees, and each in-

dividual faculty member and administrator

acting within the scope of their employ-

ment, but not dismissed as to those faculty

A15

members who acted outside the scope of

their employment: and it 1s further

ORDERED that the following claims are

not dismissed: #5 Misrepresentation; #9

Conversion: and #13 Breach of Contract.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Entered: February 28, 1986

GAIL ELIZABETH BOBAL,

Plaintiff,

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, DR. GERALD MOSS, DR. PUNKAJ K. DAS,

DR. DONALD S. RODBELL, OR. J. LAWRENCE

KATZ, DR. HYO SUB YOON, DOR. STEPHEN E.

WIBERLEY, DR. EDWARD J. SMITH, DR. HENRY

A. SCARTON, DR. ALLEN ZELMAN, DR. GARY

JUDD, DR. WILLIAM C. JENNINGS, OR. JOHN 8B.

BRUNSKI,

Defendants.

Neal P. McCurn, District Judge

ORDER

Plaintiff has moved to alter and amend

the court's December 20, 1985, order grant-

Ing 1M part defendants' motion to dismiss.

The court will treat this as a Rule 60 mo-

tion for reconsideration of and relief from

the court's December 20, 1985 Order rather

than a Rule 59 motion to alter or amend

A17

fsttensnenineierene

since judgment has not been entered herein.

The court has reviewed the paper’ uD

mitted in support f and r iprosition to

rhe motion. the rourt’* hancr ter ‘or ,*

December 3, 1985, and the court rder of

Hecember 20, 1985. Despite plaint sh

sssertions tn the antrary. *ho sure , A

consider her reply paper f De mhber 7.

19R5. ’ react an e- ter ’ o of at

mts" motion.

Aftor yrefy P tora? a Ff rt

finds that o aint eer spqument spre witl

put merit. Plaintiff aotior fenied.

IT 1S 50 ORDERED.

«I

s@ration being

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defenda

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RED, that

respects

IRDERED.

given thereto, it

the fourth affirmative

nts" answer is stricken

plaintiff's motion "

denied.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Rendered: May 8, 1986

GAIL ELIZABETH B8OBAL,

Plaintiff, pro se

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, OR. GERALD MOSS, DR. PUNKAJ K. DAS,

OR. DONALD S. RODBELL, DR. J. LAWRENCE

KATZ, DR. HYO SUB YOON, DR. STEPHEN E.

WIBERLEY, OR. EDWARD J. SMITH, DR. HENRY

A. SCARTON, DR. ALLEN ZELMAN, DR. GARY

JUDD, OR. WILLIAM C. JENNINGS, DR. JOHN 8B.

BRUNSKI,

Defendants.

Neal P. McCurn, District Judge

ORDER

The judge 1s to issue discovery sched-

ule, with discovery of plaintiff to be com-

pleted by August 1, 1986. Plaintiff is to

make herself available for discovery on

July 14 and 15, 1986 or on such other date

aS 1S mutually acceptable between plain-

tiff and defendants and completed before

A21

July 31, 1986.

Discovery by plaintiff is to be conm-

pleted by November 1, 1986 with a discov-

ery schedule filed with The ir? Dy Au-

just 1, 1986.

Al | 11scoveryv 1 to be om

November 1, 1986.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

GAIL ELIZABETH BOBAL,

Plaintiff, pro se

-~V.*

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, DOR. GERALD MOSS, DR. PUNKAJ K. DAS,

OR. DONALD S. RODBELL, OR. J. LAWRENCE

KATZ, DR. HYO SUB YOON, OR. STEPHEN E.

WIBERLEY, OR. EDWARD J. SMITH, OR. HENRY

A. SCARTON, OR. ALLEN ZELMAN, OR. GARY

JUDD, OR. WILLIAM C. JENNINGS, DR. JOHN 8B.

BRUNSKI,

Defendants.

Neal P. McCurn, District Judge

ORDER

A Rule 26(f) discovery conference was

scheduled by this Court for May 8, 1986,

then adjourned to June &, 1986, upon noti-

fication that plaintiff had not received

notice of the May conference, and the Court

having fully heard plaintiff, Gail Bobal,

pro se, In Opposition to : 1) the con-

A23

ference and (2) setting a discovery sched-

ule until a future time, and defendants,

by their attorney, Miriam M. Netter, Esq.,

having advised the Court that the parties

cannot agree on a schedule, and the Court

having determined that the parties have

not been able to agree to a specific mutu-

ally agreeable time schedule for discovery,

and that in the interests of justice de-

fendants have the right to this action pro-

ceeding without delay, it 1s hereby

ORDERED, that defendants are to depose

plaintiff, and plaintiff is to submit to

deposition, on July 14 and July 15, 1986,

at the offices of Pattison, Sampson, Gins-

berg & Griffin, P.C., (attorneys for de-

fendants) at 22 First Street, Troy, New

York, or on such other dates as shal! be

mutually agreeable to the parties, but said

discovery is to be completed no later than

August 1, 1986; and it is further

ORDERED, that plaintiff 1s to conduct

A24

and complete discovery regarding the de-

. s? see Bate

fendants, or such of them as she shall se-

lect, by October 1, 1986, and a proposed

specific discovery schedule is to be filed

with the Court by plaintiff on or before

August 1, 1986.

Se ee

A25

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Rendered May & 1QR

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A?t

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Rendered: May 5, 1987

GAIL ELIZABETH BOBAL,

Plaintiff,

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, DR. GERALD MOSS, DR. PUNKAJ K. DAS,

DR. DONALD S. RODBELL, DR. J. LAWRENCE

KATZ, DR. HYO SUB YOON, DOR. STEPHEN E.

WIBEPLEY, DR. EDWARD J. SMITH, OR. HENRY

A. SCARTON, DR. ALLEN ZELMAN, DR. GARY

JUDD, OR. WILLIAM C. JENNINGS, OR. JOHN 8B.

BRUNSKI,

Defendants.

Neal P. McCurn, District Judge

CONCLUSIONS OF LAW

Of course, in that letter it was

pointed out to you, Ms. Bobal, that since

you had taken an appeal of the Court's

orior order dismissing 14 of your causes

of action, which was dismissed, and then

you applied for reconsideration. And at

the time this motion was brought to dis-

A27

miss the remaining causes of action your

motion for reconsideration was then pending

before the Court of Appeals. And therefore

this Court did not have jurisdiction.

Since that time the Court of Appeals has

denied your motion for reconsideration, so

now the Court does have jurisdiction. fhe

record will so reflect.

A28

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Entered: May 11, 1987

GAIL ELIZABETH BOBAL,

Plaintiff,

=, @

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, DR. GERALD MOSS, DR. PUNKAJ K. DAS,

DR. DONALD S. RODBELL, OR. J. LAWRENCE

KATZ, DR. HYO SUB YOON, DR. STEPHEN E.

WIBERLEY, DR. EDWARD J. SMITH, DR. HENRY

A. SCARTON, DR. ALLEN ZELMAN, DR. GARY

JUDD, OR. WILLIAM C. JENNINGS, DR. JOHN 8B.

BRUNSKI,

Defendants.

Neal P. McCurn, District Judge

ORDER

Defendants, having moved this court by

Notice of Motion and Affidavit of Miriam

M. Netter, Esq., for an Order dismissing

the remaining claims in this action pursu-

ant to the Federal Rules of Civil Proce-

dure 16(f), 41(b), or 37(d), and Plaintiff

having submitted an Affidavit in opposition

A29

thereto, and the motion having duly come

on to be heard by this Court at a motion

term held in the Federal Court House, Al-

bany, New York, on the Sth day of May,

1987, and Defendants, by their attorney,

Miriam M. Netter, Esq., having been heard

In support of the motion, and Plaintiff,

pro se, having appeared and argued in op-

position thereto, and this Court having

reviewed and duly considered all of the

SubMissions and arguments of the parties,

and the Court having rendered a bench de-

Cision granting the motion of the Defend-

ants, it is hereby

ORDERED, that the four (4) remaining

Causes of action herein are dismissed with

prejudice and on the merits, based on Fed-

eral Rules of Civil Procedure 16(f),

37(d), and 41(b), and in accordance with

the oral decision of this Court.

IT IS SO ORDERED

A30

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Entered: June 3, 1988

GAIL ELIZABETH BOBAL,

Plaintiff,

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, et al.

Defendants.

Neal P. McCurn, District Judge

ORDER

The United States Court of Appeals for

the Second Circuit by Order dated January

13, 1988 filed with the Clerk of the Court

for the Northern District of New York on

February 1, 1988 remanded this matter to

this court for a determination on the claim

of plaintiff for disqualification of de-

fendants' counsel herein, and this court

having received the record on appeal from

the Clerk of the Second Circuit Court of

Appeals on May 27, 1988; and it appearing

A31

That on May 16, 1988 plaintiff filed

with the Clerk of the Court for the North-

ern District of New York the following:

(1) MOTION to disqualify counsel and

void judgment R60(b)

(2) MOTION to vacate judgment R60(b)

(3) REQUEST to assign case to another

judge

This court, after due consideration,

declines the plaintiff's request to assign

this matter to another judge (3) and de-

clines to consider the motion to vacate

judgment (2).

The court will hear argument at a reg-

ular motion term of this court on June 28,

1988 on that part of plaintiff's motion

(1) to disqualify counsel for defendant as

directed in the Second Circuit Court of

Appeals remand but declines to hear arqu-

ment on or give consideration to the re-

maining part of the motion, i.e., to void

judgment herein pursuant to rule 60(b), as

A32

’

earao

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Rendered: June 28, 1988

GAIL ELIZABETH BOBAL,

Plaintiff,

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, OR. GERALD MOSS, DR. PUNKAJ K. DAS,

DR. DONALD S. RODBELL, DR. J. LAWRENCE

KATZ, OR. HYO SUB YOON, DR. STEPHEN E.

WIBERLEY, OR. EDWARD J. SMITH, DR. HENRY

A. SCARTON, DR. ALLEN ZELMAN, DR. GARY

JUDD, OR. WILLIAM C. JENNINGS, DR. JOHN B.

BRUNSKI,

Defendants.

Neal P. McCurn, District Judge

FINOINGS OF FACT

You have questioned my impartiality in

your papers. I am familiar with the al-

legations you have made; they are unfounded

and untrue, and therefore, I deny your mo-

tion to recuse me.

As counsel has stated for the defend-

ant, if a litigant merely by stating un-

A34

true facts could cause a judge to recuse

himself on every case, we would never have

any finality to a case and no judge would

ever be able to consider it.

I have given very careful considera-

tion to the allegations that you make. I

find they are not correct and I am not par-

tial in this case.

A35

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Rendered: June 28, 1988

GAIL ELIZABETH BOBAL,

“Plaintiff,

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, OR. GERALD MOSS, DR. PUNKAJ K. DAS,

DR. DONALD S. RODBELL, DR. J. LAWRENCE

KATZ, DR. HYO SUB YOON, DR. STEPHEN E.

WIBERLEY, DR. EDWARD J. SMITH, DR. HENRY

A. SCARTON, DR. ALLEN ZELMAN, DR. GARY

JUDD, DOR. WILLIAM C. JENNINGS, DOR. JOHN B.

BRUNSKI,

Defendants.

Neal P. McCurn, District Judge

FINDINGS OF FACT

I am not disputing Ms. Netter's state-

ments at all. She made an affidavit and |

assume as an officer of the court she's

telling the truth.

A36

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Entered: August 1, 1988

GAIL ELIZABETH BOBAL,

Plaintiff,

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, DR. GERALD MOSS, DR. PUNKAJ K. DAS,

DR. DONALD S. RODBELL, DR. J. LAWRENCE

KATZ, DR. HYO SUB YOON, DR. STEPHEN E.

WIBERLEY, DR. EDWARD J. SMITH, DR. HENRY

A. SCARTON, DR. ALLEN ZELMAN, DR. GARY

. JUDD, OR. WILLIAM C. JENNINGS, DOR. JOHN B.

BRUNSKI,

- es

Defendants.

| Neal P. McCurn, District Judge

| ORDER

The United States Court of Appeals for

the Second Circuit, by order dated January

13, 1988, remanded this case for a deter-

mination on the plaintiff's claim for dis-

qualification of defendants' counsel. Af-

ter this court received the record on ap-

peal from the Clerk of the Court of Appeals

A37

on May 27, 1988, the court, by order dated

June 2, 1988, scheduled oral argument of

the disqualification issue for June 28,

1988.

On June 7,. 1988, plaintiff filed a mo-

tion to disqualify this court pursuant to

28 U.S.C. Section 455(a). The court heard

oral argument on this motion as well on

June 28, 1988. After consideration of all

the papers and arguments relevant to the

motions, the court denied the motion for

recusal pursuant to 28 U.S.C. section 455

(a), and reserved on the motion to disqual-

ify counsel pending a hearing scheduled

for August 23, 1987 in Albany, New York.

Plaintiff has now moved for reconsid-

eration pursuant to local rule 10(m) of

the court's ruling on recusal. After care-

ful consideration, said request is denied.

IT IS SO ORDERED.

A38

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Rendered: October 3, 1988

GAIL ELIZABETH BOBAL,

Plaintiff,

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, DOR. GERALD MOSS, OR. PUNKAJ K. DAS,

OR. DONALD S. RODBELL, OR. J. LAWRENCE

KATZ, DR. HYO SUB YOON, DR. STEPHEN E.

WIBERLEY, OR. EDWARD J. SMITH, DR. HENRY

A. SCARTON, OR. ALLEN ZELMAN, OR. GARY

JUDD, OR. WILLIAM C. JENNINGS, DR. JOHN 8B.

BRUNSKI,

Defendants.

Neal P. McCurn, District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The plaintiff was a client of LAS (Le-

gal Aid Society) which owed her the duty

of confidentiality as to anything revealed

to them, whether it was through the PAI

(Private Attorney Involvement) program or

the LAS program or the referral to these

Outside lawyers.

A39

Through the plaintiff's dealings with

LAS 4 privilege attached which is equiva-

Tent to the status of representation of

the plaintiff by LAS.

If a referral is made to the PAI at-

torney through LAS, any dealings with that

attorney and any imputation of such to LAS

have nothing to do with the issues before

the court.

The issue before the court is whether

Ms. Netter received the plaintiff's con-

fidential information by reason of her po-

sition at LAS.

The court is just interested in whether

or not Ms. Netter or any member of her firs

obtained any knowledge surreptitiously or

Otherwise about this lawsuit within reason

of her connection with the Legal Aid So-

ciety.

It has to be brought to the attention

of the lawyer or the law firm (by plain-

tiff) if the client is represented or was

A40

represented by Legal Aid: that's the cru-

ctal question here.

Disqualification of defendants’ coun-

sel om the basis of fraudulent concealment

of her conflict of interest is not a per-

timent aspect of the evidentiary hearing,

mor ts her alleged implication in a scheno

tmwolwing Mr. Foster (LAS staff attorney),

Ms. Weder (PAI attorney procured by Mr.

Foster), and Or. Dili (purported agent of

defendants contacted Dy Ms. Weber).

The court is not going to make a de-

termination om the ethics of Ms. Netter.

The matter of any unethical conduct by

Ms. Netter in this case is not before the

court om the disqualification clain.

Whether or not Ms. Netter gave contra-

Gictory testimony on different occasions

regarding entry of a judgment does not af-

fect her credibility.

whether or not Ms. Netter purposely

filed inapplicable legal support in her

A4al

memoranda of law does not affect her cred-

Ibility.

A4a2

UNITED STATES DISTRICT Court

NORTHERN DISTRICT OF NEW YORK

Docket No. 85-CV-1110

Entered: January 31, 1989

GAIL ELIZABETH BOBAL,

Plaintiff,

“Vv.

RENSSELAER POLYTECHNIC INSTITUTE, ET AL.,

Defendants.

Neal P. McCurn, District Judge

MEMORANDUM-DECISION AND ORDER

The United States Court of Appeals for

the Second Circuit having by Order dated

January 13, 1988, remanded this matter for

@ determination of plaintiff's claim for

disqualification of defendants’ counsel

and this court having reviewed and consid-

ered the papers in support of and in op-

position to said motion filed in the Court

of Appeals prior to remand and filed in

this court subsequent thereto, and the

court having determined that questions of

Aaj

fact were presented necessary for deter-

mination as to the conflict of interest

and conduct pertaining thereto alleged by

plaintiff Gail Bobal on the part of defend-

ants' counsel Miriam Netter, the court, on

October 3, 1988, held an evidentiary hear-

ing at which the parties were offered an

opportunity to present sworn testimony in

support of their respective positions.

It is the contention of plaintiff

herein that defendants’ counsel Miriam

Netter. a partner in the firm of Pattison,

Sampson, Ginsberg & Griffin, P.C., Troy.

New York, counsel of record for the de-

fendants herein, had prior to and at the

time of her firm's representation of de-

fendants herein received confidential itn-

formation as to plaintiff's claim or claims

and improperly utilized said information

to the detriment of plaintiff and platn-

tiff's prosecution of thts actton.

Plaintiff alleges that Attorney Netter

aaa

by virtue of her POSITION as President of

the Legal Aid Society of Northeastern New

York and her membership on the Society's

Board of Directors became privy to commu-

nications had between plaintiff Bobal ang

staff attorneys of said Legal Aid Society.

Said communications occurred from October,

1984, through the Spring of 1985 while

Dlaintiff was endeavoring to seek counsel

from the said Legal Aid Society by direct

representation of her interests or by re-

ferral to other attorneys with which said

Legal Aid Society had contact in order to

allow plaintiff Bobal to prosecute her

Claim against the defendants herein.

Attorney Netter ana her law firm deny

that said communications were ever relayed

or ‘mparted to them and deny any conflict

of interest or 'aproper attorney conduct.

Sworn testimony, subject to cross exa-

MINa@tion, was taken from witnesses Susan

Weber, Michael Foster, Rose Dill, plain-

A&5

tiff Gail Boba!, and defendants’ attorney

Mirtam Netter.

Michael Foster testified that he was

and ts a staff attorney for the Legal Aid

Society of Northeastern New York. Inc.,

and that he first had contact with Gail

Boba! in October, 1984, when she sought

legal assistance from the Soctety in con- es

mection with her potential claim against

Rensselaer Polytechnic Institute and vari-

Ous faculty and administrative personne!

thereof. He had approximately six consul-

tations with ner, some in person and some

telephonically. Upon review of documenta-

tion presented by Ms. Bobal and after dis-

CUSSTOM and Consultation with other nen-

bers of the Society's staff and its Execu-

tive Director, Dennison Ray, it was deter-

mined that legal representation would not

be afforded by the Society to Gat! Bobal

1h Commection with ner claim. A judqnent

was made that the case was inappropriate

A&6

for the Legal Aid Society to handle be-

Cause the subject matter was not within

the Society's expertise and that the case

lacked merit. A letter dated November 28.

1984 (Exhibit 1) was sent to plaintiff

Bobal so informing her.

Mr. Foster denied any communication

whatsoever with Attorney Netter or any sen-

ber of her firm in this regard. Discus-

ston of plaintiff Bobal's case was confined

to the Legal Aid attorneys and no infor-

mation of any kind was imparted in relation

thereto to the Board of Directors of the

Society and in particular to Attorney Net-

ter as the President thereof at that time.

Sometime thereafter and early in the

year 1985 Foster received a phone cal}

from a Professor Harvith of Albany Law

School in relation to Ms. Bobal's claia,

and at his behest Foster attempted infor-

mally to interest three attorney members

of the Albany Bar Referral Panel in her

A47

case, all to no avail.

Foster testified that it was 4 firm

policy of the Society never to discuss 4

client or potential client's case with

Board members and that said policy was

strictly adhered to in this case. HIs

first knowledge of Attorney Netter's sub-

sequent involvement in the case was when

he recetwed notice from Attorney Netter of

the motion made in the Circuit Court of Ap-

peals for disqualification in October 1987.

wr. Foster acknowledged that there was

an attorney/client relationship between

plaintiff Bobal and the Society when the

consultations concerning representation

were occurring in the Fall of 1984 but 4s-

serted that his contacts on her behalf with

Professor Harvith and Albany Pro Bono at-

torneys itn early 1985 were on a personal

basis and mot as a Legal Aid attorney.

Susan Weber, an attorney associated

with the Albany law firm of McClung, Pe-

A48

ters & Simon in March and April of 1985,

testified as to her conversations with

plaintiff Bobal at that time in connection

with her possible representation of Bobal's

interests in the matter. In that connec-

tion she contacted Rose R. Dill, a profes-

sor at Rensselaer Polytechnic Institute,

1h an attempt to mediate the dispute with-

Out legal action but then determined her

efforts were of no avail and terminated

her conferences with plaintiff Bobal with-

Out agreement to represent her. At no time

Gid Attorney Weber contact or have any con-

versations or communication with Attorney

Netter or members of her firm in the pre-

mises or with Mr. Foster or other Legal Aid

personnel. Rose Dill was called to the

stand by plaintiff and affirmed the testi-

mony of Attorney Weber.

Attorney Netter was examined under oath

Dy plaintiff Bobal. She had been admitted

to practice in New York for over 16 years

A4&9

and has been a partner in the law firm of

Pattison, Sampson, Ginsberg & Griffin,

P.C., since 1978. She is a member of the

New York Bar Association House of Delegates

and Committee on Fitness. She served on

the Board of Directors of the Legal Aid

Society of Northeastern New oo ae

from 1976 - 1987 and as President of the

Society from April, 1984, to April. 1986.

As a member of the Soard and as President

of the Society, she had no contact with

clients of the Society or access to infor-

mation concerning their representation by

the Society. In that regard she and the

Board of the Society followed the mandate

of the Legal Services Corporation of the

United States. As President. Ms. Netter's

only contact with clients of the Society

was to receive appeals from clients who

believed they were not properly represented

by the Society. Attorney Netter testified

that on only two occasions while she served

A50

as President did Society cases come before

her for consideration and those cases con-

cerned determinations on whether to appeal

court decisions adverse to the Society's

clients. On no occasion did she ever con-

sult with or have any communication with

Attorney Foster, Executive Director Ray,

or any other Society personnel concerning

Ms. Bobal's claim or representation by the

Society. Her first contact with the Bobal

Claim was tn September, 1985, when her

firm, as general counsel to defendant Rens-

selaer Polytechnic Institute, was called

upon to answer the complaint filed by the

plaintiff herein in the instant action.

At no time subsequent to the filing of said

complaint and up until plaintiff filed her

motion to disqualify tn the Second Circuit

Court of Appeals did Ms. Netter or any mem-

ber of firm have contact with the Legal Aid

Society tn relation to the matter.

Plaintiff Gail Bobal testified that

AS!

she first contacted the Legal Aid Society

of Northeastern New York, Inc., in early

October, 1984, and conferred with Attorney

Foster at that time. All of her communi-

cations with the Society were with Attor-

ney Foster. At his request she presented

a handwritten (Exhibit 3) and a typed (Ex-

hibit 4) resume of her claim and subse-

Quent typewritten statements (Exhibits 5

and 6). She acknowledged that Attorney

Foster told her in the Fall of 1984 that

the Legal Aid staff could not handle her

claim and stated that Foster informed her

he would try to get outside counsel from

the Society's pro se panel. Plaintiff Bo-

bal suggested the letter turning down her

case (Exhibit 2). She testified further

that after her conference with Professor

Harvith of Albany Law School, Attorney

Foster agreed telephonically to reopen her

case. She testified that Professor Harvith

had volunteered to contact the Legal Aid

A52

_—————

Soctety in her regard and that the Profes-

sor knew the President of the Legal Aid

Soctety and that “he would call him up to

help her." Ms. Bobal testified “he made

1t obvious that Presidents get involved.”

Plaintiff Bobal presented no evidence

to substantiate her allegations. There

was no proof that etther Attorney Netter

or any member of her firm had received any

information whatsoever from or through the

Legal Aid Soctety as to plaintiff's claim

against the defendants herein either prior

to, at the time of, or subsequent to the

firm's appearance on behalf of defendants

and its representation of the defendants’

interests herein. This was so throughout

the course of the case and up until the

time the tssue was first raised on appeal.

This court finds that Attorney etter

tn her tndividual capacity, tn her capac-

tty aS @ member of the firm of Pattison,

Sampson, Ginsberg & Griffin, P.C.. and in

AS3

her capacity as President and a member of

the Board of Directors of the Legal Aid

Society of Northeastern New York, Inc.,

was never presented with a conflict of in-

terest in this matter and at all times con-

ported with the canons of ethics and dis-

Ciplinary rules in connection therewith.

There was and is no basis for disqualifi-

cation of Attorney Netter or the firm of

Pattison, Sampson, Ginsberg & Griffin,

P.C., from representation of the interests

of the defendants herein.

Accordingly, the plaintiff's motion to

Gisqualify is denied and this matter is

referred back to the Second Circuit Court

Of Appeals for further proceedings in con-

nection with the appeal pending therein.

IT IS SO ORDERED.

AS4

Se an)

—

eS —_ + 5

a pe ao a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 852, August Term, 1989

(Decided: May 15, 1990

On rehearing: October 22, 1990)

Docket No. 89-7413

GAIL ELIZABETH BOBAL,

Plaintiff-Appellant,

-V.-

RENSSELAER POLYTECHNIC INSTITUTE, BOARD OF

TRUSTEES OF RENSSELAER POLYTECHNIC INSTI-

TUTE, OR. GERALD MOSS, DR. PUNKAJ x. DAS,

OR. DONALD S. RODBELL, OR. J. LAWRENCE

KATZ. OR. HYO SUB YOON, DR. STEPHEN E.

WIBERLEY, DR. EDWARD J. SMITH, DR. HENRY

A. SCARTON, OR. ALLEN ZELMAN, DR. GARY

JUDD, OR. WILLIAM C. JENNINGS, DR. JOHN B.

BRUNSKI,

Defendants-Appellees.

Before: OAKES, Chief Jud @, FEINBERG and

WALKER, Circuit . i °

Petition for rehearing of appeal from

orded entered in the United States Dis-

trict Court for the Nofthern District of

New York, Neal P. McCurn, Chief Judge.

A55

dismissing pro se plaintiff's action as a

SAaNCtion pursuant to Fed. R. Civ. P. 37(¢).

On rehearing, petition granted and

Judgment a ffirmed.

GAIL ELIZABETH BOBAL, Edison, New

Jersey, Plaintiff-Appellant, pro se,

MIRIAM M, NETTER, Troy, New York

(Pattison, Sampson, Ginsberg & Grif-

"ta, 6... Troy, New York, of coun-

sel), for Defendants-Appel lees.

PER CURIAM:

On May 15, 1990, we affirmed in part

and reversed in part orders entered by the

District Court for the Northern District

of New York (Neal Pp. McCurn, C. J.). Fa-

miliarity with our earlier opinion is pre-

sumed. Bobal vy. Rensselaer Polytechnic

Institute, et al.. No. 89-7413 (2d Cir.

May 15, 1990). our reversal of Judge Mc-

Curn's ultimate Gismissal of this action

4S 4 sanction revolved around a confer.

ence held on June 4, 1986. At that con-

ference, the Gistrict judge attempted to

A56

fashion a discovery schedule. He ordered

Bobal to appear for her scheauled deposi-

tion. In response, she stated that she

would not appear and then left the court-

room. Bobal candidly admitted that she

viclated the court order, but attempted to

justify her conduct because she "“conclu-

de{d) that the order would irreparably

prejudice her case."

We reviewed the dismissal pursuant to

Fed. R. Civ. P. 37(d), which addresses a

party's failure to appear for her deposi-

tion. The imposition of sanctions under

that rule “is within the discretion of the

district court and a decision to dismiss

an action for failure to comply with dis-

covery orders will only be reversed if the

decision constitutes an abuse of that dis-

cretion.” John 8. Hull, Inc. v. Waterbury

Petroleum Products, I[nc., 845 F.2d 1172,

1176 (2d Cir. 1988). From a review of the

appendices filed by both parties, it ap-

A57

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peared tnat Judge McCurn had not warned

Bobal that a violation of his order would

result in the harsh sanction of dismissal.

Cf. Schenk v. Bear. Stearns & Co., 583

F.2d 58, 59 (2d Cir. 1978) (reversing dis-

trict court's dismissal for failure to

prosecute, noting that “there had been no

+++ Judictal participation Indicating that

@ dismissal might be in the offing.") at

the argument of this appeal and in response

to 4 question from the court, counsel for

appellees stated that Judge McCurn had not

warned this pro se plaintiff that a dis-

missal might result from a violation of

his order. Although appellant made use of

her opportunity for rebuttal, she did not

dispute appellees' response.

Subsequent to the issuance of our ori-

ginal opinion, appellant forthrightly no-

tified this court that she had, in fact,

been warned by Judge McCurn at the confer-

ence on June 4, 1986. At that conference,

A58

Judge McCurn told plaintiff that "Ci]f you

are not available, Bobal, for deposition

as I direct you I will entertain a motion

to dismiss your case ..." Based upon that

concession, appellees moved to file an un-

timely petition for rehearing. Pursuant

to Fed. R. App. P. 40, which provides that

"a petition for rehearing will ordinarily

not be granted in the absence of "a re-

quest from the court for an answer to the

petition, we requested appellant to re-

spond.

Our original opinion required that a

warning be given to this pro se litigant

before her case could be dismissed as a

sanction for noncompliance with a discov-

ery order, and we specifically relied on

the district court's apparent failure to

warn Bobal. In fact, as it now turns out,

such warning was given and we think the

warning was adequate to inform her of the

consequences of noncompliance. While it

AS9

1s true that the district court did not

expressly state that the dismissal would

be with prejudice, @ pro se litigant would

reasonably assume that to be the case and,

particularly so, in the context in which

the warning was given--one in which a dis-

missal without prejudice would have been

virtually meaningless. We note also that

Bobal has never voiced any belief that the

Cismissal warning meant anything other than

dismissal with prejudice.

Therefore, we now grant appellees’ pe-

tition for rehearing and amend our prior

Judgment. The district court's dismissal

of Bobal's action as a sanction for her

willful violation of the district court's

discovery order its affirmed. We also ac-

knowledge Bobal's candor and her willing-

ness to bring all relevant facts to the

court's attention.

Pursuant to Fed. 8. App. P. 39a),

costs to appellees.

460

22 First Street,

P.O. Box 208

Troy, NY 12181-0208

May 9, 1986

Ms. Gail E. Bobal

160 Stony Road

Edison, NJ 08817

Re: Bobal v. RPI

Dear Ms. Bobal:

Enclosed please find defendants’ pres-

entation relative to the 26(f) conference

held by Judge McCurn on May 8, 1986, in

Albany in accordance with his direction.

Judge McCurn stated that he will set

a discovery schedule. ....

Sincerely,

Pattison, Sampson,

Ginsberg & Grif-

r38.. @.€.

Miriam M. Netter

A61

CIVIL DOCKET CONTINUATION SHEET

PLAINTIFF DEFENDANT

DOCKET NO.

GAIL BOBAL RENSSELAER Se-C¥-t110

POLYTECHNIC

INSTITUTE, PAGE 2

et al.

DATE NR. PROCEEDINGS

1986

Apr 30 27 Filed Civil Appeal Sched-

Order #1

May 9 28 Filed Defts.' Facts

May 8 29 Filed Transcript of the mo-

tion proceedings held in

the above-entitled matter

on the 25th day of March

May 3 Pre-Trial Conf. - 1/2 hr.;

Conf. proceeds without

Pitf. Pro Se's presence

A62

after waiting 20 min. for

her to appear: Judge Mc-

Curn will issue a discoy-

ery schedule order as fol-

lows: Deposition of rect.

to be conducted on 7/14 8

7/15 or on such other dates

as are acceptable to both

Parties but to be completed

no later than 8/1/86: Dis-

covery by Pitf. is to be

completed by 11/1/86 w/

Pitf. to file a pronosed

discovery schedule w/ Court

by 8/1/86; Al} discovery

1s to be completed by

11/1/86.

A63

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.