In re: World Trade Center Disaster Site Litigation ( 2013 )


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  • 12-87-cv
    In re: World Trade Center Disaster Site Litigation
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    _____________________
    August Term, 2012
    (Argued: May 30, 2013                                        Decided: July 16, 2013)
    Docket No. 12-87-cv
    _____________________
    IN RE: WORLD TRADE CENTER DISASTER SITE LITIGATION
    _____________________
    ZOILA CORTEZ, ET AL.,
    Plaintiffs,
    MIGUEL ALFARO LOBO, ET AL.,
    Plaintiffs-Appellants,
    -v.-
    CITY OF NEW YORK, ET AL.,
    Defendants-Appellees.
    _______________________
    Before:
    WINTER AND HALL, Circuit Judges, AND SESSIONS, District Judge.*
    _______________________
    Plaintiffs, who worked as office cleaners in buildings surrounding the World Trade
    Center disaster site on and after the terrorist attacks of September 11, 2001, appeal from an Order
    of the United States District Court for the Southern District of New York (Hellerstein, J.)
    denying their motion for an extension of time to comply with the district court’s prior Order to
    *
    The Honorable William K. Sessions III, of the United States District Court for the District of
    Vermont, sitting by designation.
    1
    submit properly certified discovery responses, and dismissing their complaints with prejudice for
    failure to prosecute their cases. The district court rejected certain plaintiffs’ interrogatory
    answers as not compliant with 
    28 U.S.C. § 1746
    , which provides that where the truth of a writing
    is required by law to be sworn to, a written certification by the declarant that the writing is “true
    and correct” “under penalty of perjury” shall be sufficient. Specifically, we hold that plaintiffs’
    statement in their interrogatory answers acknowledging that “if any of the foregoing responses
    are willfully false, I am subject to punishment,” is not sufficient under § 1746. Accordingly, we
    affirm the judgment of the district court.
    AFFIRMED.
    _______________________
    DENISE A. RUBIN (Paul J. Napoli, W. Steven Berman, on the brief), Worby
    Groner Edelman & Napoli Bern, LLP, New York, NY, for Plaintiffs-Appellants.
    LEE ANN STEVENSON, Kirkland & Ellis LLP, New York, NY, Richard E. Leff,
    McGivney & Kluger, P.C., New York, NY, for Defendants-Appellees.
    _______________________
    PER CURIAM:
    Plaintiffs, who worked as office cleaners in buildings surrounding the World Trade
    Center disaster site on and after the terrorist attacks of September 11, 2001, appeal from an Order
    of the United States District Court for the Southern District of New York (Hellerstein, J.)
    denying their motion for an extension of time to comply with the district court’s prior Order
    requiring them to submit properly certified discovery responses, and dismissing their complaints
    with prejudice for failure to prosecute their cases. The district court rejected 85 of the plaintiffs’
    interrogatory answers as not compliant with 
    28 U.S.C. § 1746
    , which provides that where the
    truth of a writing is required by law to be sworn to, a written certification by the declarant that
    the writing is “true and correct” “under penalty of perjury” shall be sufficient. After granting
    2
    three enlargements of time to submit interrogatory answers with compliant certifications, the
    district court dismissed these 85 plaintiffs’ claims, along with the claims of 85 other plaintiffs
    who submitted answers with no declaration at all. We affirm the judgment of the district court.
    BACKGROUND
    Plaintiffs’ claims, which allege injuries resulting from exposure to toxic materials from
    the World Trade Center site, were consolidated before Judge Alvin K. Hellerstein of the
    Southern District of New York on one of the three “master dockets” of cases arising out of the
    terrorist attacks of September 11, 2001.1 Following a status conference on August 2, 2011, the
    court, in an order issued August 29, 2011, directed the parties to meet and confer with Special
    Masters to devise a list of questions that each plaintiff “must answer, and swear to personally by
    their own signature.” The order also provided that the interrogatories were to be completed in a
    “timely fashion,” and that “[a]ny Plaintiff who fails to fill out his or her questionnaire in a time
    period that enables the other aspects of this discovery program to proceed shall be liable to be
    dismissed for failure to prosecute their case.” Plaintiffs’ Liaison Counsel then moved to relax
    the requirement that interrogatory answers be sworn or, alternatively, to extend the time period to
    submit compliant certifications. The district court denied the primary relief sought, citing 
    28 U.S.C. § 1746
     and noting that Federal Rule of Civil Procedure 33 requires that interrogatories be
    answered “by the party,” that they be answered “separately and fully in writing under oath,” and
    that they be signed. The court indicated that it “would not make exceptions to this requirement.”
    The court did, however, extend the deadline to submit compliant answers to October 31, 2011
    and noted that “[t]here are not likely to be any further enlargements of time.”
    1
    These master dockets are: 21MC100 (claims of persons working within the World Trade Center
    site and other City-owned sites), 21MC102 (claims of persons working as office cleaners in buildings
    surrounding the World Trade Center site—the cases considered in this appeal), and 21MC103 (so-called
    “straddler” claims of persons who worked both within and without the World Trade Center site).
    3
    On November 1, 2011, one day past the deadline, the parties submitted to the district
    court a joint request to relax the requirement, imposed in a prior order, that unsworn answers be
    purged from the master docket’s information computer database. The district court denied this
    request, noting that at a status conference on October 18, 2011, the court had stated to plaintiffs’
    counsel: “Let me be clear on this . . . . There are two ways to swear in federal procedure: one is
    to take an oath before a person qualified to administer an oath; the second is to use a form of
    declaration provided in Title 28. Those are the only two ways.” The court noted that some of
    the answers submitted by plaintiffs included a certification in which the declarant attested to the
    truth of his or her answers and acknowledged that “if any of the foregoing responses are willfully
    false, I am subject to punishment.” Quoting 
    28 U.S.C. § 1746
    , the court held that the
    certification supplied was not in compliance with that statute. The court also ordered the
    approximately 178 plaintiffs who had submitted answers that were neither sworn to nor certified
    in any way and the approximately 1155 plaintiffs who had submitted noncompliant certifications
    to show cause by November 18, 2011 why their cases should not be dismissed pursuant to
    Federal Rule of Civil Procedure 41(b) for failure to prosecute or otherwise be sanctioned.
    On November 14, 2011, plaintiffs filed a motion for an enlargement of time to provide
    updated certifications until December 2, 2011. Notwithstanding its prior order, the court granted
    the motion, set forth a revised schedule for the Special Masters to select their cases for discovery,
    and provided that “[n]o further enlargements will be granted.”
    The December 2 deadline passed. One day later, plaintiffs filed a motion to enlarge the
    time to January 2, 2012 for the remaining 170 plaintiffs who had not submitted compliant
    certifications. Of these 170 plaintiffs, 85 plaintiffs had previously submitted a noncompliant
    certification, and another 85 had submitted no certification or declaration at all. The district
    4
    court denied the motion and dismissed those 170 cases with prejudice for failure to prosecute
    their cases consistent with court orders.2 The court noted that “[t]hese Plaintiffs have been
    indifferent to court orders, despite repeated adjournments,” and that “[a]ll but a few of the 170
    cases are three to five years old.” Plaintiffs now appeal this order.
    DISCUSSION
    We review for abuse of discretion a district court’s order dismissing a claim for failure to
    prosecute. United States ex rel. Drake v. Norden Sys., Inc., 
    375 F.3d 248
    , 254 (2d Cir. 2004). A
    district court exceeds the bounds of its discretion if its decision is based on an error of law or a
    clearly erroneous finding of fact. Wynder v. McMahon, 
    360 F.3d 73
    , 76 (2d Cir. 2004).
    Plaintiffs raise two arguments on appeal. First, they argue that the district court improperly
    dismissed their complaints without providing them adequate time or notice to comply with the
    court’s prior orders and without a claim by defendants asserting they were prejudiced by
    plaintiffs’ failure to comply. Second, plaintiffs argue that the court erred as a matter of law by
    finding that the certification employed by plaintiffs was not in substantial compliance with the
    certification provided in 
    28 U.S.C. § 1746
    . We address these arguments in turn.
    In reviewing a district court’s dismissal for failure to prosecute, we consider “whether:
    (1) the plaintiff’s failure to prosecute caused a delay of significant duration; (2) plaintiff was
    given notice that further delay would result in dismissal; (3) defendant was likely to be
    prejudiced by further delay; (4) the need to alleviate court calendar congestion was carefully
    balanced against plaintiff’s right to an opportunity for a day in court; and (5) the trial court
    adequately assessed the efficacy of lesser sanctions.” Drake, 
    375 F.3d at 254
    . No single factor
    is dispositive. 
    Id.
    2
    In the same order, however, the court permitted plaintiffs affected by the order to move to
    reopen their cases by January 2, 2012, provided the moving plaintiff shows a ground for reopening
    cognizable under Federal Rule of Civil Procedure 60(b).
    5
    An assessment of these factors as applied to the record before us leads us to conclude that
    the district court acted well within its discretion in dismissing certain plaintiffs’ complaints for
    failure to comply with repeated court orders despite numerous extensions of time to do so. At
    the August 2, 2011 status conference, at which the court set a rough schedule for discovery and
    other pretrial issues, plaintiffs made no mention of an inability to compile and submit
    interrogatory answers by the set deadline. Following this conference, plaintiffs were given clear
    and repeated notice that timely submission of answers to the court-ordered interrogatories was
    integral to the swift progression of these cases. The district court’s August 29, 2011 order,
    which set forth the initial discovery schedule, impressed upon plaintiffs the consequences of a
    failure to submit timely interrogatory answers:
    All Plaintiffs and Defendants are required to complete the
    questionnaires in a timely fashion. Any Plaintiff who fails to fill
    out his or her questionnaire in a time period that enables the other
    aspects of this discovery program to proceed shall be liable to be
    dismissed for failure to prosecute their cases.
    Order Amending Summary Order – August 2, 2011 Conference, August 29, 2011, Dist. Ct. Doc.
    No. 4080, at 1-2. This language clearly indicates not only the court’s expectation that
    submissions be timely but also the reason that timely compliance with discovery orders was
    important in this complex litigation—because other aspects of the discovery program depended
    on the assembly of a comprehensive database of sworn interrogatory answers.
    Notwithstanding the expressed need for timely submission of plaintiffs’ answers, the
    court thrice extended the deadline for submission of properly certified answers. Importantly, two
    of these extensions were granted notwithstanding that plaintiffs’ request for additional time was
    made after the previously set deadline to submit compliant answers had passed. Even after the
    order granting a third extension, in which the court warned that “[n]o further enlargements [of
    6
    time] will be granted,” Liaison Counsel for plaintiffs moved for another enlargement of time to
    permit 170 plaintiffs to submit compliant answers. Having provided the notice that plaintiffs
    were receiving their final extension—a notice we deem sufficient under the circumstances—the
    district court did not err in denying plaintiffs’ request for a fourth extension.
    Moreover, in complex cases such as these, we afford district courts particular deference
    in reviewing a discretionary determination undertaken to manage the litigation before the court.
    It is well established that district courts possess the “inherent power” and responsibility to
    manage their dockets “so as to achieve the orderly and expeditious disposition of cases.” Link v.
    Wabash R.R. Co., 
    370 U.S. 626
    , 630-31 (1962). Such authority is particularly acute where the
    litigation is “complex and continuing.” In re Joint Eastern & Southern District Asbestos Litig.,
    
    982 F.2d 721
    , 733 (2d Cir. 1992). The district court was tasked with managing litigation of a
    substantial age involving claims brought by approximately 1500 plaintiffs. We have no trouble,
    therefore, concluding that the court did not exceed the bounds of its discretion in dismissing the
    noncompliant plaintiffs’ complaints.
    Plaintiffs advance a second argument with respect to a number of interrogatory responses
    that bore what purported to be some form of certification. They assert that the court erred as a
    matter of law in ruling that the certification employed by some 85 of the 170 plaintiffs whose
    complaints were dismissed was not in substantial compliance with the requirements of 
    28 U.S.C. § 1746.3
     The certifications submitted by these plaintiffs read: “I verify that the foregoing
    3
    
    28 U.S.C. § 1746
     provides:
    Wherever, under any law of the United States . . . , any matter is required or
    permitted to be supported, evidenced, established, or proved by the sworn
    declaration, verification, certificate, statement, oath, or affidavit, in writing of the
    person making the same . . . , such matter may, with like force and effect, be
    supported, evidenced, established, or proved by the unsworn declaration,
    certificate, verification, or statement, in writing of such person which is
    7
    responses are true and correct to my knowledge. I am aware that if any of the foregoing
    responses are willfully false, I am subject to punishment.” Pl.’s Br. at 7. Plaintiffs do not
    contend that § 1746 is inapplicable to their answers to interrogatories. Rather, they maintain that
    the phrase “subject to punishment” is substantially similar to “under penalty of perjury,” the
    language which appears in the certification provided in the statute. This argument is unavailing.
    Section 1746 provides that an unsworn matter may be treated as sworn, provided that it is
    “prove[n] by the unsworn declaration, certificate, verification, or statement, in writing of such
    person which is subscribed by him, as true under penalty of perjury, and dated, in substantially
    the . . . form” of the model declaration provided. 
    28 U.S.C. § 1746
     (emphasis added). Parsing
    the declaration provided in the statute reveals its substantive elements: the declarant must (1)
    “declare (or certify, verify, or state),” (2) “under penalty of perjury,” (3) that the matter sworn to
    is “true and correct.” 
    Id.
     The substitution of “subject to punishment” for “under penalty of
    perjury” is a substantial departure from the substance of the declaration provided in § 1746, and
    thus, does not comply with the statute. Inclusion of the language “under penalty of perjury” is an
    integral requirement of the statute for the very reason that it impresses upon the declarant the
    specific punishment to which he or she is subjected for certifying to false statements. Moreover,
    as the Fifth Circuit has observed, omission of the phrase “under penalty of perjury” would
    “allow[] the affiant to circumvent the penalties for perjury in signing onto intentional
    subscribed by him, as true under penalty of perjury, and dated, in substantially
    the following form:
    * * *
    (2) If executed within the United States, its territories, possessions, or
    commonwealths: “I declare (or certify, verify, or state) under penalty of
    perjury that the foregoing is true and correct. Executed on (date).
    (Signature)”.
    8
    falsehoods.” Nissho-Iwai Am. Corp. v. Kline, 
    845 F.2d 1300
    , 1306 (5th Cir. 1988).4 We hold
    that 
    28 U.S.C. § 1746
     requires that a certification of the truth of a matter be expressly made
    under penalty of perjury. Any other result would be contrary to the plain language of the statute
    and the objective sought to be advanced by it.
    The district court did not err as a matter of law in interpreting § 1746 to require that a
    certification be made “under penalty of perjury.” Thus, the district court properly rejected the
    interrogatory answers of certain plaintiffs that omitted that language.
    CONCLUSION
    For the foregoing reasons, the judgment of the district court is AFFIRMED.
    4
    We also note that the various published district court opinions which have addressed the matter
    are in accord. See, e.g., Cooper v. Cape May Cnty. Bd. of Soc. Servs., 
    175 F. Supp. 2d 732
    , 742 n.6
    (D.N.J. 2001) (rejecting declaration which was “not made specifically under penalty of perjury” and
    which thus “d[id] not contain the requisite assurance of reliability and veracity to allow their
    consideration in lieu of an affidavit”); Kersting v. United States, 
    865 F. Supp. 669
    , 676 (D. Haw. 1994)
    (rejecting plaintiffs’ argument that a certification is insufficient and noting that “[a]s long as an unsworn
    declaration contains the phrase ‘under penalty of perjury’ and states that the document is true, the
    verification requirements of 
    28 U.S.C. § 1746
     are satisfied”).
    9