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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