Buckingham v. Lewis Gen. Tires, Inc. ( 2020 )

19-1024
Buckingham v. Lewis Gen. Tires, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@).
A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 5th day of May, two thousand twenty.
PRESENT:
JOHN M. WALKER, JR.,
GERARD E. LYNCH,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
WALTER BUCKINGHAM,
Plaintiff-Appellant,
v. No. 19-1024
LEWIS GENERAL TIRES, INC.,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Walter Buckingham, pro se,
Rochester, NY.
FOR DEFENDANT-APPELLEE: Mark R. Affronti, Hutcheson,
Affronti & Deisinger, P.C., Niagara
Falls, NY.
Appeal from a judgment of the United States District Court for the Western
District of New York (Wolford, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Walter Buckingham, proceeding pro se, sued his former employer,
Lewis General Tires, Inc. (“LGT”) for employment discrimination. During
discovery, LGT demanded that Buckingham produce a copy of a settlement
agreement relating to a prior lawsuit he had filed. Buckingham willfully failed
either to produce the agreement, despite multiple orders to do so by a magistrate
judge, or to answer questions about it in a deposition. LGT moved to dismiss the
complaint as a sanction for failing to comply with the discovery orders. The
magistrate judge recommended granting the motion, and the district court adopted
the recommendation. We assume the parties’ familiarity with the underlying
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facts, the procedural history of the case, and the issues on appeal.
“We review a district court’s imposition of sanctions under Rule 37,
including dismissal, for abuse of discretion.” Agiwal v. Mid Island Mortg. Corp., 555
F.3d 298, 302 (2d Cir. 2009). To determine whether dismissal is an appropriate
sanction, a court should consider: “(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 of the consequences of . . . noncompliance.” Id. (internal quotation
marks omitted). “Dismissal of a pro se litigant’s action may be appropriate so long
as a warning has been given that non-compliance can result in dismissal.” Id.
(internal quotation marks omitted).
The district court did not abuse its discretion by dismissing Buckingham’s
complaint. The magistrate judge thoroughly considered the relevant factors,
finding that all four weighed in favor of dismissal. In particular, the magistrate
judge found that the record – which had been developed over several years –
demonstrated Buckingham’s willful noncompliance and bad faith. The
magistrate judge also emphasized the duration of the noncompliance and the fact
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that no lesser sanction would be effective. Specifically, among other facts, the
record reflected that Buckingham gave varied and contradictory explanations for
his refusal to produce the settlement agreement, purposefully disregarded the
court’s orders to produce the agreement, obstructed a deposition that the court had
ordered him to attend to answer questions about the agreement, and did so over
the course of nearly four years despite being repeatedly warned that his claim
would be dismissed if he persisted in his noncompliance.
On appeal, Buckingham argues only that he could not produce the
settlement agreement because it was no longer in his possession and the
unidentified party who possessed it passed away. But, as the magistrate judge
noted, this explanation contradicts the several other representations Buckingham
made to the court regarding his refusal or inability to produce the agreement or to
answer questions about it during his deposition. Originally, in addition to
resisting discovery on the basis that the requests were improper, Buckingham
objected to producing the agreement because it was confidential, which suggested
that he had the agreement in his possession. Indeed, he requested that the
magistrate judge examine the agreement in camera. When the judge agreed to
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review the document in camera, however, he withdrew the request and
subsequently stated that he could not produce the agreement because it was not in
his possession. Rather, Buckingham explained, an unnamed and deceased person
had the agreement. Finally, at his deposition, Buckingham claimed that he did not
remember working for anyone prior to LGT and did not remember any settlement.
On these facts, we find that the magistrate judge’s conclusion that Buckingham
willfully refused to comply with her orders was not clearly erroneous, and the
district court did not abuse its discretion in adopting the recommendation to
impose sanctions.
We have reviewed the remainder of Buckingham’s arguments and find them
to be without merit. For the foregoing reasons, the judgment of the district court
is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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