11-2093
Battiste-Downie v. Covenant House

                            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 “summary order”).
A party citing 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 Daniel
P. Moynihan United States Courthouse, 500 Pearl Street in the City of New York, on the 18th day of
June, two thousand twelve.

PRESENT:
                GUIDO CALABRESI,
                JOSÉ A. CABRANES,
                RAYMOND J. LOHIER, Jr.,

                        Circuit Judges.
__________________________________________

Carlene Battiste-Downie,

                        Plaintiff-Appellant,

Athanasius Onyemaobi, Ehima Patrick
Onaghino, Leonard Agunwa,

                        Plaintiffs,

                v.                                                      No. 11-2093-cv


Covenant House, Covenant House New York,
Covenant House Under 21,

                  Defendants-Appellees.
___________________________________________

FOR PLAINTIFF-APPELLANT:                        Carlene Battiste-Downie, pro se, Kennesaw, Georgia.
FOR DEFENDANTS-APPELLEES:                         Kevin J. Harrington (John T.A. Rosenthal, on the brief),
                                                  Harrington, Ocko & Monk, LLP, White Plains, New
                                                  York.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Paul A. Crotty, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be AFFIRMED.

        Plaintiff-appellant Carlene Battiste-Downie (“Battiste-Downie”), pro se, appeals the District
Court's dismissal of her action pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(v) due to her
noncompliance with the District Court’s discovery orders. We assume the parties’ familiarity with
the facts, proceedings below, and issues on appeal. It is worth noting at the outset, however, that
although Battiste-Downie appears pro se in this Court, she was represented by counsel at all relevant
times in the District Court.

         We review the imposition of sanctions for “abuse of discretion,” and the factual findings
made in support of the District Court’s decision for clear error. See S. New England Tel. Co. v. Global
NAPs Inc., 624 F.3d 123, 143 (2d Cir. 2010); see also Sieck v. Russo, 869 F.2d 131, 134 (2d Cir. 1989)
(“We . . . prefer to . . . provide the teeth to enforce discovery orders by leaving it to the district court
to determine which sanction from among the available range is appropriate.”). We have identified
the following “useful” factors in evaluating a district court’s dismissal of an action under Rule 37:
“(1) the willfulness of the noncompliant party or the reason for noncompliance; (2) the efficacy of
lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the noncompliant
party had been warned of the consequences of noncompliance.” See Agiwal v. Mid Island Mortg. Corp.,
555 F.3d 298, 302 (2d Cir. 2009) (internal quotation marks and ellipses omitted); see also S. New
England Tel., 624 F.3d at 144 (“[T]hese factors are not exclusive, and they need not each be resolved
against the party challenging the district court’s sanctions for us to conclude that those sanctions
were within the court's discretion.”).

        We have reviewed the record in light of these principles and now affirm the District Court’s
dismissal with prejudice of Battiste-Downie’s action. First, the record amply supports the District
Court’s finding that Battiste-Downie’s noncompliance was willful. Battiste-Downie repeatedly
defied discovery orders, despite the District Court’s explicit instructions on several occasions that
she was to respond to specific discovery demands propounded by defendants or face sanctions. For
example, Battiste-Downie does not dispute that she never produced her computer's hard drive or a
consent form that would have allowed for discovery from a third party, despite being ordered to do
so.


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        Second, the efficacy of lesser sanctions to correct such behavior is doubtful, given that
Battiste-Downie refused to respond to the discovery demands even after being ordered repeatedly
by the District Court to do so. Third, Plaintiff-Appellant persisted in her noncompliance for
approximately one year (i.e., beginning with her original response to defendants' request for
documents in July 2009 until her failure to abide by the District Court's final June 2010 deadline for
compliance), resulting in numerous hearings to address the issue. Finally, Battiste-Downie was
warned on at least two occasions that she would face the harshest sanction—dismissal of her
claims—if she failed to comply with the court's orders. Notwithstanding this, she persistently
disregarded the District Court's orders to fulfill her discovery obligations.

     Accordingly, it is hereby ORDERED that the judgment of the District Court is
AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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