Embuscado v. DC Comics

SUMMARY ORDER Restituto Embuscado appeals the dismissal of his two complaints pursuant to Fed.R.Civ.P. 37(b) and (d) for failure to comply with the district court’s discovery orders. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision. Dismissal pursuant to Fed.R.Civ.P. 37 is warranted “where a party fails to comply with the court’s discovery orders willfully, in bad faith, or through fault.” John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir.1988). In determining whether a Rule 37 dismissal is appropriate, a court may consider a variety of factors, including: “(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 [701] of the consequences of ... noncompliance.” Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir.2009) (internal quotation marks omitted). We review a Rule 37 dismissal for abuse of discretion. See David Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1365 (2d Cir.1991). Here, the record demonstrates thoughtful consideration of all four factors. Specifically, Magistrate Judge Eaton’s report, whose recommendation for dismissal was adopted by Judge McMahon, makes the following findings: (1) over a period of three months, from September through November 2007, Embuscado violated a series of court orders requiring the production of documents and appearance for deposition; (2) Embuscado’s violations were willful and deliberate; (3) Embuscado’s deliberate and persistent noncompliance rendered lesser sanctions inappropriate; and (4) defendants’ October 2007 motion, combined with the magistrate judge’s November 2007 warnings concerning possible dismissal, provided Embuscado with sufficient notice that further delay would result in dismissal. On this record, we identify no abuse of discretion in the district court’s Rule 37 dismissal. We have considered all of Embuscado’s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.