Torres v. City of New York

Background

Wilfredo Torres, representing himself, sued the City of New York, Police Lieutenant Neil Veras, and Police Officers Patricia de Jesus, Dioasky Pena, and Mateasz Hader. The opinion states that Torres’s amended complaint asserted claims under 42 U.S.C. § 1983, a federal law allowing claims for certain violations of constitutional rights by state actors, and state law. Torres alleged that the defendants violated his federal constitutional rights when they entered his apartment on February 27, 2019, and transported him to the NYC-HHC Bellevue Hospital Center.

The defendants first served Torres with a deposition notice in November 2022. After he did not appear or cooperate in setting a date, they scheduled a deposition for March 4, 2024, but Torres did not attend. On March 8, 2024, the court ordered Torres to appear for a deposition on April 9 and warned that failing to do so could result in dismissal for failure to prosecute under Federal Rule of Civil Procedure 41(b). Torres sought a stay based on interlocutory appeals, but the court denied the request and again warned him that failing to attend could result in dismissal. Torres nevertheless did not appear for the April 9 deposition.

The Motion and Legal Standard

The defendants moved to dismiss under Rule 37(d)(1), which addresses a party’s failure to attend a deposition, or alternatively under Rule 41(b), which permits dismissal when a plaintiff fails to prosecute a case or obey a court order. Torres opposed the motion and argued that he was justified in resisting the deposition.

The court explained that dismissal under Rule 41(b) is a severe remedy, particularly when the plaintiff is representing himself. But the court also stated that every litigant must obey court orders and that violating those orders can result in dismissal with prejudice. In deciding whether to dismiss for failure to prosecute, the court considered the duration of the noncompliance, the plaintiff’s notice of the possible dismissal, likely prejudice to the defendants, the court’s interest in managing its docket compared with the plaintiff’s opportunity to be heard, and whether a less severe sanction would be appropriate.

Court’s Analysis

The court found that all five factors favored dismissal. First, Torres had failed to attend two properly noticed depositions, including the deposition specifically ordered by the court, causing a delay of nearly eight months. Second, the court had twice clearly warned him that failing to attend could result in dismissal.

Third, the court found that the defendants were prejudiced because Torres’s refusal to attend prevented them from preparing their defense. Fourth, the court concluded that continuing to order Torres to attend a deposition burdened the court’s docket and delayed the litigation. Fifth, the court found that no sanction short of dismissal was appropriate because Torres had repeatedly failed to schedule or attend a deposition and indicated that he did not intend to submit to one.

The court granted the defendants’ motion under Rule 41(b). It expressly stated that it did not reach the defendants’ separate Rule 37(d)(1) argument because dismissal was being granted on other grounds.

Disposition

The case was dismissed with prejudice for failure to prosecute. The clerk was directed to terminate the motion and close the case. The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied Torres permission to appeal without paying filing fees.