Alexander v. Private Protective Services, Inc.

Background

Jeriel Alexander sued Private Protective Services, Inc. (PPS). The opinion states that Alexander was representing himself and that he alleged PPS discriminated against him by denying him access to a “shoot” at Pier 132 in the Bronx. His amended complaint asserted a claim under Title II of the Civil Rights Act of 1964 and sought $1.2 million in damages.

After earlier proceedings, the remaining claims included a claim under the New York City Human Rights Law. Discovery then proceeded. In an August 31, 2022 order, the court required Alexander to respond to PPS’s document requests and warned that failure to comply could result in sanctions, including a recommendation that the case be dismissed. Alexander later testified that he had text messages with “Mr. John” from PPS that he had not produced and described the messages as “an ambush for trial.”

Judge Oetken had also ordered Alexander to pay $16,760 in attorneys’ fees by December 31, 2022, and stated that failure to pay could lead to additional sanctions. Alexander had not paid the award and, in response to PPS’s motion, did not state that he intended to pay it or address the missing text messages.

Motion and legal standards

PPS moved under Federal Rules of Civil Procedure 37 and 41 for dismissal of the remaining claims. Rule 37 permits sanctions for failing to obey discovery orders, including dismissal in appropriate circumstances. Courts commonly consider the willfulness of the violation, whether lesser sanctions would work, the length of the noncompliance, and whether the party was warned about the consequences.

Rule 41(b) permits dismissal when a plaintiff fails to prosecute a case or obey a court order. Relevant considerations include the length of the failure, notice of possible dismissal, prejudice to the defendant, the court’s need to manage its docket, the plaintiff’s opportunity to be heard, and whether a less severe sanction was considered. The court also explained that before dismissing a case for failure to pay a monetary sanction, it should consider the person’s ability to pay.

Analysis

The court found that dismissal was not appropriate on the record before it. It found that Alexander’s refusal to produce the relevant text messages appeared willful because he stated under oath that he intended to withhold them for trial. However, the court found that the duration of his noncompliance was debatable because PPS did not move to compel or bring the issue to the court’s attention until January 10, 2023.

The court also found that Alexander had not been clearly warned that failure to produce the particular text messages would result in dismissal with prejudice. Regarding the unpaid fee award, Alexander had not been given an opportunity to submit evidence about his ability to pay. For those reasons, the court denied PPS’s motion without prejudice.

Order

The court ordered Alexander to produce the text messages by February 13, 2023; by that date, either pay the $16,760 fee award or file a sworn declaration establishing that he could not pay some or all of it; and participate in a 30-minute remote deposition about the text messages by February 21, 2023. If Alexander failed to comply, PPS was permitted to file a declaration describing the noncompliance. The court stated that it would recommend to Judge Oetken that the case be dismissed with prejudice if Alexander failed to comply with all aspects of the order.