ROBERT L. CARTER, United States District Judge
Defendants Philip Morris International, Inc., Leslie Gould, and Kelly Services, Inc. request, by letter dated June 6, 2002, that the court dismiss, pursuant to Rule 37(b)(2)(C), F.R. Civ. P., plaintiff Laurice Gilpin's suit against them. Defendants also request that the court impose sanctions, pursuant to Rule 11, F.R. Civ. P., on plaintiff and her former attorney, Anthony C. Ofodile. Plaintiff opposes both requests. For the reasons set forth below, defendants' request for dismissal is granted, but no other sanctions will be imposed.
BACKGROUND
These requests for sanctions are the latest in a series of discovery disputes over the willfully dilatory behavior of plaintiff Laurice Gilpin ("Gilpin"). The underlying action was originally instituted by Gilpin on April 10, 2001, in the Supreme Court, Bronx County, seeking $1,750,000 in damages, and alleging employment discrimination in violation of 42 U.S.C. § 1981 and N.Y. Exec. L. § 296, as well as tortious interference with Gilpin's contractual rights.
On June 29, 2001, defendant Kelly Services, Inc. ("Kelly Services") removed the case to this court and, on July 19, 2001, filed an answer to the complaint. On July 25, 2001, defendants Leslie Gould ("Gould") and Philip Morris International, Inc. ("Philip Morris") moved to dismiss plaintiff's claims of race discrimination and tortious interference. On August 7, 2001, the parties signed a stipulation resetting the briefing schedule for the motion to dismiss, and, on August 13, 2001, Gould and Philip Morris resubmitted their motion.
On August 29, 2001, Gilpin moved for an order to amend the complaint, and submitted a memorandum opposing dismissal. On October 2, 2001, the parties executed a second stipulation whereby Gould and Philip Morris accepted service of the amended complaint and withdrew their motion to dismiss. Finally, on November 1, 2001, Gould and Philip Morris answered the amended complaint, with Kelly Services doing the same on January 15, 2002.
On January 16, 2002, the court called the parties in for a scheduling conference, and ordered that they complete discovery on or before June 28, 2002. The first sign of trouble came via letter, dated March 28, 2002, in which defendants complained that Gilpin had informed them that she would not be appearing at her deposition scheduled for April 2, 2002, and that she would not be available until late May or early June. Defendants also informed the court that Gilpin had failed to respond to defendants' Request for Production of Documents and Interrogatories ("Request"), which was due on March 18, 2002.
A conference was called but subsequently cancelled when Gilpin agreed to be deposed on May 6, 2002, and her attorney, Anthony C. Ofodile ("Ofodile") assured defendants that the requested materials would be delivered. On April 25, 2002, defendants delivered a letter informing the court that plaintiff still had not provided the information and materials sought in the Request. On April 29, 2002, the court contacted plaintiff's counsel and advised him that if plaintiff did not supply the requested documents within 24 hours, they both could be subject to sanctions, including dismissal of the case. The documents were delivered the next day, and trouble seemed to be averted.
On May 2, 2002, however, defendants again contacted the court by letter, complaining this time that, while plaintiff had finally delivered her responses to defendants' Request, they were incomplete in a number of important respects. Specifically, defendants faulted plaintiff for failing to provide any information whatsoever relating to her emotional damages, claim for back pay, or mitigation of damages; and for failing to furnish defendants with the addresses and complete names of each witness identified in response to defendants' interrogatories.
On May 9, 2002, the court called the parties in for another conference. At that time, defendants emphasized their particular need for plaintiff's tax returns, as well as her medical records from the various physicians and health care providers who had treated her. Defendants also advised the court that, because of plaintiff's failure to turn over the requested information, they were unable to complete deposing her on May 6, 2002. The court ordered plaintiff to produce the remaining documents sought by defendants, and warned that sanctions, up to and including dismissal, would be imposed for failure to do so by May 16, 2002. Plaintiff's counsel assured the court that the requested materials would be delivered on time, and promised further that plaintiff would make herself available for a second day of deposition.
The assurances of plaintiff's counsel, however, once again proved empty. On May 16, 2002, defendants sent another letter advising the court that plaintiff had only partially complied with the court's May 9th directive. According to defendants, the tax returns and medical records produced by plaintiff were incomplete. In particular, defendants complained that, instead of producing actual medical records, plaintiff had offered only brief statements from two of the six physicians she identified as having treated her, and had provided no information whatsoever regarding the other four.
In that same letter, defendants also complained that plaintiff still had not furnished them with either the names and addresses of the witnesses identified in her responses to defendants' interrogatories, or the requested information pertaining to her calculation of damages and mitigation of damages. Finally, defendants raised a new issue: they sought, pursuant to Rule 35, F.R. Civ. P., to conduct a physical and mental examination of plaintiff. However, plaintiff was insisting that, as a matter of religious conviction, she could only submit to an examination by a physician who, like her, was a Seventh Day Adventist.
On June 4, 2002, the court received still more troubling news, this time from plaintiff's counsel, who requested by letter that he be allowed to withdraw from representing plaintiff in this case. Citing plaintiff's stubborn refusal to heed his counsel, her constant reliance on the legal advice of others besides her attorney, her complete unwillingness to pay for any of the expenses incurred during litigation, and her expressed belief that he (Ofodile) might be working for Philip Morris against her interests, plaintiff's counsel concluded that the "attorney-client relationship has broken down irretrievably."
Defendants, in their reply letter of June 6, 2002, did not oppose Ofodile's request to withdraw. They did, however, bring several more damning pieces of information to the court's attention. First, defendants revealed that Dr. Jesse Bevel, Jr., one of plaintiff's psychotherapists, had produced at his deposition documents and records pertaining to plaintiff's treatment — materials that plaintiff maintained did not exist. Defendants also disclosed that Dr. Bevel, himself a Pastor in the Seventh Day Adventist Church, had testified that his religion imposed no requirement that adherents only be examined or treated by physicians of the same faith — in direct contradiction to plaintiff's stated position. Finally, defendants advised the court that plaintiff was now refusing to appear for her continued deposition scheduled for June 7, 2002.
The court immediately scheduled a conference with the parties for June 10, 2002. The court specifically advised plaintiff, via her attorney, that she should make every effort to appear in person at the conference. Plaintiff, however, declined to attend explaining that she could not find affordable transportation, on such short notice, from Florida, where she now resides. At the conference, the court agreed to Ofodile's request to withdraw as plaintiff's counsel. The Court also declined to dismiss plaintiff's claims at that time, but advised the parties it would review the record and consider imposing that or similarly extreme sanctions if they were justified.
DISCUSSION
Although defendants have not made a formal motion, the court treats their repeated and explicit requests for dismissal as the equivalent. Rule 37(b)(2)(C), F.R. Civ. P., authorizes the court to dismiss the action of a party who "fails to obey an order to provide or permit discovery. . . ." Dismissal is the harshest sanction available to a district court, and should thus "be imposed only in extreme circumstances." Jones v. Niagara Frontier Transp. Auth., 836 F.2d 731, 734-35 (2d Cir. 1987). Additionally, "[t]he sanction of dismissal should not be imposed under Rule 37 unless the failure to comply with a pretrial production order is due to `willfulness, bad faith, or any fault' of the deponent." Salahuddin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986) (quoting Societe Internationale Pour Participations Industrielles et Commerciales v. Rogers, 357 U.S. 197, 212 (1958)).
While the court does not believe that plaintiff has acted in bad faith, her behavior clearly does qualify as willful. Failure to comply is considered willful when "the court's orders have been clear, when the party has understood them, and when the party's non-compliance is not due to factors beyond the party's control." Baba v. Japan Travel Bureau Int'l, 165 F.R.D. 398, 402-03 (S.D.N.Y. 1996) (Sotomayor, J.). In this case, the court's admonishments have been repeated and clear, both as to the specific actions plaintiff should take, as well as the consequences if she did not. Even if she did not understand the court's directives, plaintiff was, until only recently, represented by competent counsel, who could answer any questions she might have.
Unfortunately, as detailed above, plaintiff consistently failed to follow her counsel's advice, even in the face of warnings from the court that her behavior could result in dismissal. She repeatedly ignored the court's orders to comply with defendants' document requests, she refused to submit to a medical examination — something she would have no right to do even if her religious claims had not been discredited — and she failed to attend her continued deposition on June 7, 2002. Indeed, this case seems substantially similar to Jones v. Niagra Frontier Transportation Authority, in which the Second Circuit found that a plaintiff's conduct was willful (and therefore sanctionable by dismissal) where he ignored his counsel's advice and refused to answer questions at his deposition. 836 F.2d at 735.
Nor does the court believe that lesser sanctions are appropriate. For one thing, given plaintiff's persistent uncooperativeness thus far, the court is skeptical that any penalty would be effective at deterring her from future misconduct should this litigation be allowed to continue. Additionally, the most obvious candidate for a lesser sanction — precluding plaintiff from contesting those issues where she failed to provide documentation requested by defendants — would likely result in dismissal anyway since plaintiff would be left unable to prove essential elements of her claim. For example, a party must show an effort to mitigate damages to prevail on a claim of employment discrimination. See, e.g., Greenway v. Buffalo Hilton Hotel, 143 F.3d 47 (2d Cir. 1998). Plaintiff, however, has offered virtually no evidence on this question. To preclude her from arguing this point would effectively foreclose her claim.
Finally, the court also believes that sanctions pursuant to Rule 11, F.R. Civ. P., are inappropriate against Ofodile, plaintiff's former attorney. For one thing, Ofodile has not had a full and fair opportunity to respond, which is a prerequisite for imposition of Rule 11 sanctions. Even more fundamentally, the court believes that plaintiff, not her attorney, bears the lion's share of responsibility for the discovery abuses in this case. After all, it was she who refused, against the advice of her attorney, to submit to either a medical examination or a second day of deposition. Indeed, as Ofodile's June 4th letter attests, plaintiff appears to have excluded him from most of her important litigation decisions, preferring instead to follow the advice of her friends and spiritual advisors.
The one incident that does give the court pause is Ofodile's representation that Dr. Bevel did not keep medical records relating to his treatment of plaintiff. As suggested above, Dr. Bevel's production of such records at his deposition clearly belies that claim. The explanation offered by Ofodile, in his letter of May 21, 2002, is that, while he was not able to speak with Dr. Bevel directly, he was advised by both plaintiff and Dr. Bevel's office that the doctor did not keep any records in the traditional sense. A more diligent attorney might well have investigated more fully. However, the court cannot say that it was unreasonable for Of Ofodile to rely on the representations of his client and Dr. Bevel's office. Overall, Ofodile's conduct, while not exemplary, has been more than competent, as evidenced by the substantive letters and motions he has filed with the court over the course of this litigation. Sanctions against him are therefore inappropriate.
CONCLUSION
In the final analysis, the court finds that plaintiff's willfully dilatory behavior during discovery justifies the extreme sanction of dismissal, pursuant to Rule 37(b)(2)(C), F.R. Civ. P., However, sanctions are inappropriate against plaintiff's former counsel. As stated previously, it is plaintiff, not her attorney, who bears primary responsibility for disrupting discovery in this case, so it is she who should have to face the consequences.