            11-568-cv
            Agiwal v. HSBC Mortg. Corp.


                                     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.


 1               At a stated term of the United States Court of Appeals
 2          for the Second Circuit, held at the Daniel Patrick Moynihan
 3          United States Courthouse, 500 Pearl Street, in the City of
 4          New York, on the 15th day of May, two thousand twelve.

 5          PRESENT: RICHARD C. WESLEY,
 6                   RAYMOND J. LOHIER, JR.,
 7                        Circuit Judges,
 8                   J. GARVAN MURTHA,*
 9                        District Judge.
10          __________________________________________
11
12          BAIJNATH AGIWAL,

13                                 Plaintiff-Appellant,

14                         v.                                                   11-568-cv
15
16
17          HSBC MORTGAGE CORPORATION,
18          UNUM GROUP,

19                        Defendants-Appellees.
20          ___________________________________________
21
22          FOR APPELLANT:                Baijnath Agiwal, pro se, Fresh Meadows,
23                                        NY.
24



                    *
                   The Honorable J. Garvan Murtha, of the United States
            District Court for the District of Vermont, sitting by
            designation.
 1   FOR APPELLEES:     ALLAN S. BLOOM (Erin E. LaRuffa, on the
 2                      brief), Paul Hastings LLP, New York, NY.

 3        Appeal from a judgment of the United States District
 4   Court for the Eastern District of New York (Amon, C.J.).

 5       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 6   AND DECREED that the judgment of the district court is

 7   AFFIRMED.

 8       Plaintiff-Appellant Baijnath Agiwal, pro se, appeals

 9   the district court’s dismissal of his action pursuant to

10   Federal Rule of Civil Procedure 37(b)(2)(A)(v) due to his

11   noncompliance with discovery orders.   We assume the parties’

12   familiarity with the underlying facts, procedural history,

13   and issues on appeal.

14       We review the imposition of sanctions for abuse of

15   discretion, and the factual findings made in support of the

16   district court’s decision for clear error.   See S. New

17   England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 143 (2d

18   Cir. 2010).   In Agiwal’s previous case before this Court, we

19   identified several useful factors for evaluating a district

20   court’s dismissal of an action under Rule 37: “(1) the

21   willfulness of the non-compliant party or the reason for

22   noncompliance; (2) the efficacy of lesser sanctions; (3) the

23   duration of the period of noncompliance, and (4) whether the

24   non-compliant party had been warned of the consequences of

                                   2
 1   . . . noncompliance.”    Agiwal v. Mid Island Mortg. Corp.,

 2   555 F.3d 298, 302 (2d Cir. 2009) (internal quotation marks

 3   omitted); see also S. New England Tel. Co., 624 F.3d at 144.

 4   Where a plaintiff appears pro se, dismissal with prejudice

 5   may be imposed only if “a warning has been given that

 6   noncompliance can result in dismissal.”    Valentine v. Museum

 7   of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994).

 8          We have reviewed the record in light of these

 9   principles and now affirm the district court’s dismissal of

10   Agiwal’s action. The record amply supports the district

11   court’s finding that Agiwal’s noncompliance was willful.

12   Agiwal repeatedly defied discovery orders, despite the

13   magistrate judge’s careful efforts to explain his

14   obligations under those orders and Agiwal’s confirmation

15   that he understood what he was required to do.     Agiwal also

16   failed to appear at his scheduled deposition without

17   providing adequate notice or explanation to either Defendant

18   HSBC Mortgage Corporation or the district court.       The

19   efficacy of lesser sanctions to correct such behavior is

20   doubtful, given that the Rule 37 dismissal of one of

21   Agiwal’s previous actions did not deter him from his

22   noncompliant behavior in this case.    See Agiwal, 555 F.3d at

23   303.    Instead, Agiwal persisted in his noncompliance for a

                                    3
 1   period of approximately three months.    After his failure to

 2   comply with the court’s orders entered on May 6, 2010 and

 3   June 25, 2010, the magistrate judge explicitly warned

 4   Agiwal, both orally and in written orders, that continued

 5   refusal to comply would result in her recommending the

 6   dismissal of his action.   Notwithstanding those warnings,

 7   Agiwal again disregarded the magistrate judge’s orders.

 8       To the extent Agiwal challenges the denial of his

 9   request for the magistrate judge’s recusal, his challenge is

10   without merit.   The magistrate judge’s impartiality could

11   not reasonably be questioned under the circumstances.     See

12   United States v. Lovaglia, 954 F.2d 811, 814-15 (2d Cir.

13   1992).

14       We have considered Agiwal’s remaining arguments and

15   find them to be without merit.    For the foregoing reasons,

16   the judgment of the district court is hereby AFFIRMED.

17                               FOR THE COURT:
18                               Catherine O’Hagan Wolfe, Clerk

19




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