Brown v. Astoria Federal Savings & Loan Ass'n , 444 F. App'x 504 ( 2011 )

10-3793-cv
Brown v. Astoria Fed. Savings & Loan Assoc.
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 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 30th day of December, two thousand eleven.
PRESENT: REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges,
MARK R. KRAVITZ,*
District Judge.
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IRVING BROWN,
Plaintiff-Appellant,
v. 10-3793-cv
ASTORIA FEDERAL SAVINGS & LOAN
ASSOCIATION,
Defendant-Appellee,
NEW YORK STATE SUPREME COURT FOR THE
SECOND JUDICIAL DISTRICT,
Defendant.
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*
Judge Mark R. Kravitz of the United States District Court for the District of
Connecticut, sitting by designation.
FOR APPELLANT: Irving Brown, pro se, Essex, England.
FOR APPELLEE: James G. Marsh, O’Reilly, Marsh & Corteselli, P.C.,
Mineola, New York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Brian M. Cogan, Judge; Lois Bloom, Magistrate Judge.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on September 10, 2010, is AFFIRMED.
Plaintiff Irving Brown, proceeding pro se, appeals from (1) the denial of his motions
for a protective order pursuant to Fed. R. Civ. P. 26(c)(1), and (2) the dismissal of his
complaint for Brown’s failure to comply with a discovery order pursuant to Fed. R. Civ. P.
37(b)(2)(A).1 We review a denial of a motion for a protective order for abuse of discretion,
which we will find only if the district court’s decision rests on an error of law or a clearly
erroneous finding of fact, or if the decision cannot be located within the range of permissible
outcomes. See SEC v. TheStreet.Com, 273 F.3d 222, 228 & n.6 (2d Cir. 2001). We assume
the parties’ familiarity with the underlying facts and record of prior proceedings, which we
reference only as necessary to explain our decision to affirm.
1
Brown’s notice of appeal also cites the district court’s February 17, 2009 order
dismissing as frivolous his claims against defendant New York Supreme Court for the
Second Judicial District. We question whether Brown has properly preserved for our
consideration his arguments with respect to the district court’s dismissal of his claims against
the New York Supreme Court. Assuming—without deciding—that he did so, it is plain that
the district court correctly determined that those claims are barred by the Eleventh
Amendment. See Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009).
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1. Protective Order
A. Waiver
To the extent Brown, a resident of England, contests the denial of his motions seeking
a protective order requiring defendant Astoria Federal Savings & Loan Association
(“Astoria”) to conduct Brown’s deposition in writing or by telephone rather than in person,
his appeal is waived by his failure to file objections to the magistrate judge’s orders within
14 days of being served with copies, as required by Fed. R. Civ. P. 72(a). Under that rule,
“[a] party may not assign as error a defect in the order not timely objected to.” Fed. R. Civ.
P. 72(a); see Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008). Brown not only
failed to file any objections to the district court from the magistrate judge’s June 1 and June
10, 2010 denials of protective orders, he failed to file any objections to the magistrate judge’s
August 12, 2010 adherence to those denials on reconsideration. Instead, Brown sought to
contest the rulings only after Astoria moved to dismiss the action for Brown’s failure to
attend his deposition. Thus, Brown’s appeal from the magistrate judge’s denial of his
motions for a protective order is waived.
B. Merits
Even if we were to excuse Brown’s failure to comply with Rule 72(a), we would
identify no abuse of discretion in the challenged denials of a protective order. Rule 26(c)
states that “[t]he court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including . . .
prescribing a discovery method other than the one selected by the party seeking discovery.”
Fed. R. Civ. P. 26(c)(1)(C). Brown, as the party seeking the protective order, “ha[d] the
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burden of showing that good cause exist[ed] for issuance of that order.” Gambale v.
Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004) (internal quotation marks omitted).
Brown did not attempt to carry this burden by offering any evidence that in-person
attendance at a deposition in New York would constitute an economic hardship or otherwise
burden him.2 Instead, he conclusorily charged Astoria with seeking a “sham” deposition
designed “to harass the Plaintiff and pressur[e] him into abandoning his claim owing to the
escalation of costs involved in complying with the request.” App. at 68. The district court
discredited these allegations of abuse of process and credited Astoria’s representations that
the opportunity to examine Brown in person to assess his demeanor and credibility was
necessary to prepare its defense. On the record presented, we identify no abuse of discretion
in the determination that Brown failed to demonstrate good cause for a protective order.
Hyam v. American Export Lines, 213 F.2d 221 (2d Cir. 1954), is not to the contrary.
There, we reversed the dismissal of a lawsuit brought by a plaintiff in India who failed to
appear for deposition in New York, in the absence of a substantial showing of the necessity
to conduct the deposition in the United States. See id. at 223. Hyam, however, is
distinguishable, not least by the fact that intercontinental travel is cheaper and faster than it
was a half-century ago, when Hyam was decided. Thus, the costs and burdens of traveling
from London to New York in 2010 do not necessarily equate to those involved in traveling
from Bombay to New York in 1954. This is not to foreclose the possibility that travel
2
The record includes no information regarding Brown’s ability to pay for and attend
his scheduled deposition in New York. We note, however, that Brown’s complaint pertains
to Astoria’s purportedly late payment of a $30,000 certificate of deposit.
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between London and New York might warrant a protective order in an appropriate case. But
where, as here, a plaintiff makes no showing of particular hardship in attending a deposition
in the forum where he filed suit, we identify no abuse of discretion in the denial of a
protective order.
2. Dismissal
Our conclusion with respect to the propriety of the magistrate judge’s denials of a
protective order prompts us also to reject as without merit Brown’s challenge to the dismissal
of his complaint. Before granting dismissal, even the district judge afforded Brown “one
final chance” to appear for a deposition in New York on September 14, 2010, requiring
advance confirmation of intended attendance in writing. App. at 113. Only when plaintiff
failed to signal obedience to this fifth instruction in six months requiring attendance at a
deposition was a judgment of dismissal entered. That decision fell within the district court’s
discretion. See Fed. R. Civ. P. 37(b)(2)(A)(v); Agiwal v. Mid Island Mortg. Corp., 555 F.3d
298, 302–03 (2d Cir. 2009).
3. Remaining Claims
Brown’s argument regarding the propriety of serving process on Astoria’s law firm
is moot because he ultimately served a representative of Astoria itself. Brown’s remaining
challenges to the district court’s judgment are without merit.
The judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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