Heendeniya v. St. Joseph's Hospital Health Ctr.

18-3553 (L), 19-748 (Con)
Heendeniya v. St. Joseph’s Hospital Health Ctr.
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 9th day of October, two thousand twenty.
PRESENT:
JON O. NEWMAN,
GUIDO CALABRESI,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
Umesh Heendeniya,
Plaintiff-Appellant,
v. 18-3553 (L)
19-748 (Con)
St. Joseph’s Hospital Health Center, Roger Gary
Levine, MD, Lisa Marie O’Connor, MD, George
O. Tremiti, MD, Horatius Roman, MD, Joanne
Mary French, RN, Wendy Briscoe, RN, Susan
Lynn Cate, LMFT, Rosaline Spinella, Robert
Michael Constantine, MD, Mitchell Bruce
Feldman, MD, Cynthia A. Rybak, NP, Kathryn
Howe Ruscitto, President and CEO, Lowell A.
Seifter, JD, Senior VP and General Counsel,
Meredith Price, VP of Financial Services and
CFO, Deborah Welch, VP, Gael Gilbert, RN,
MBA, Director, John and Jane Does, St.
Joseph’s Hospital Health Center, Inclusive 1-5,*
* The Clerk of Court is directed to amend the caption to conform to the above.
Defendants-Appellees.
_______________________________________
FOR PLAINTIFF-APPELLANT: Umesh Heendeniya, pro se,
Spring Hill, FL.
FOR DEFENDANTS-APPELLEES ST. JOSEPH’S
HOSPITAL HEALTH CENTER, JOANNE MARY
FRENCH, RN, WENDY BRISCOE, RN, SUSAN
LYNN CATE, LMFT, ROSALINE SPINELLA,
CYNTHIA A. RYBAK, NP, KATHRYN HOWE
RUSCITTO, PRESIDENT AND CEO, LOWELL A.
SEIFTER, JD, SENIOR VP AND GENERAL
COUNSEL, MEREDITH PRICE, VP OF
FINANCIAL SERVICES AND CFO, DEBORAH Jennifer L. Wang, Costello,
WELCH, VP, and GAEL GILBERT, RN, MBA, Cooney & Fearon, PLLC,
DIRECTOR: Syracuse, NY.
FOR DEFENDANTS-APPELLEES LISA
MARIE O’CONNOR, M.D., GEORGE O.
TREMITI, M.D., HORATIUS ROMAN, M.D., Matthew B. Schutte, Martin,
ROBERT MICHAEL CONSTANTINE, M.D., and Ganotis, Brown, Mould
MITCHELL BRUCE FELDMAN, M.D.: & Currie, P.C., DeWitt, NY.
FOR DEFENDANT-APPELLEE ROGER Kevin Edward Hulslander,
GARY LEVINE, M.D.: Smith, Sovik, Kendrick &
Sugnet, P.C., Syracuse, NY.
Appeal from a judgment and an order of the United States District Court for the Northern
District of New York (Suddaby, C.J.; Dancks, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and the order of the district court are AFFIRMED.
Plaintiff-Appellant Umesh Heendeniya, proceeding pro se, appeals the district court’s
judgment dismissing his complaint under Federal Rules of Civil Procedure 37 and 41(b) for failure
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to comply with discovery rules and orders and for failure to prosecute. 1 He separately appeals
the district court’s order denying his motion to amend or for relief from the judgment under Federal
Rules of Civil Procedure 59(e) and 60(b). We have consolidated the appeals. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal, and refer to them only as necessary to explain our decision to affirm.
I. Failure to Prosecute and Failure to Comply with Discovery Orders
We review dismissals under Rules 37 and 41(b) for abuse of discretion. Agiwal v. Mid
Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (Rule 37); Lucas v. Miles, 84 F.3d 532, 535
(2d Cir. 1996) (Rule 41(b)). 2 In conducting this review, the Court is mindful that dismissal under
Rule 41(b) is “the harshest of sanctions” and is properly “used only in extreme situations.”
Baptiste v. Sommers, 768 F.3d 212, 217 (2d Cir. 2014).
When deciding whether to dismiss a case under Rule 41(b) for failure to prosecute, courts
must consider “(1) the duration of the plaintiff’s failure to comply with the court order, (2) whether
plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants
are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court’s interest
in managing its docket with the plaintiff’s interest in receiving a fair chance to be heard, and (5)
whether the judge has adequately considered a sanction less drastic than dismissal.” Id. at 216.
“No single factor is generally dispositive.” Id. Similarly, when deciding if dismissal is an
appropriate sanction for failure to comply with discovery orders under Rule 37, a court must
1
In addition to the judgment, the notice of appeal listed several orders, all of which are deemed
incorporated into the judgment.
2
Unless otherwise noted, in quoting caselaw, this Summary Order omits all alterations, citations, footnotes,
emphases, and internal quotation marks.
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consider whether the party was warned, the duration of noncompliance, the efficacy of lesser
sanctions, and “the willfulness of the non-compliant party or the reason for noncompliance.”
Agiwal, 555 F.3d at 302. The district court properly considered these factors and reasonably
concluded that each favored dismissal in this case.
As to the three factors common to Rules 37 and 41(b), Heendeniya received notice of the
consequences of failure to respond to the defendants’ discovery demands during the January 30,
2018 conference and in the text order entered thereafter, and he acknowledged his understanding
of this notice during the conference. Heendeniya does not claim on appeal that he did not receive
or understand this notice. The district court reasonably concluded that the duration of
Heendeniya’s noncompliance was significant: by the time the court issued its decision, eleven
months had passed since Heendeniya’s response to discovery demands was first due. In the
context of Rule 41(b), we have found that shorter delays could support dismissal. See Ruzsa v.
Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177 (2d Cir. 2008) (finding a seven-month period
of inaction was “significant” for Rule 41(b) purposes); Chira v. Lockheed Aircraft Corp., 634 F.2d
664, 666 (2d Cir. 1980) (affirming Rule 41(b) dismissal where plaintiffs took no steps to move
case toward trial during six-month period). 3 Moreover, the district court considered the
possibility of lesser sanctions and reasonably concluded that dismissal was the only sanction that
would address Heendeniya’s pattern of dilatory behavior.
3
Heendeniya’s pattern of conduct during the course of the litigation (including eleven requests for
extension of time) provides alternative grounds for the district court’s decision. See Lyell Theatre Corp.
v. Loews Corp., 682 F.2d 37, 42-43 (2d Cir. 1982) (failure to prosecute under Rule 41(b) “can evidence
itself either in an action lying dormant with no significant activity to move it or in a pattern of dilatory
tactics” such as “repeated requests for continuances or persistent late filings of court ordered papers”).
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As to the factors specific to Rule 37, the district court reasonably concluded that
Heendeniya acted willfully because he had clear notice of the deadline to respond to discovery
demands, demonstrated his understanding of this deadline and ability to comply with it by
submitting his own demands to some of the defendants, and did not offer any explanation for his
noncompliance or show that circumstances outside his control were to blame. On appeal,
Heendeniya argues the district court should have considered that his mental disability made it more
difficult for him to meet the court’s deadlines. But he does not claim that he did not understand
the court’s orders, and he received numerous extensions from the court, including additional time
to respond to discovery demands and to oppose the defendants’ Rule 37 and 41(b) motions.
As to the factors specific to Rule 41(b), the district court reasonably concluded that further
delay would be prejudicial to the defendants: at the time of its decision, this action had been
pending for three years, and it concerned events more than five years in the past, of which evidence
was increasingly unlikely to be available. Cf. Ruzsa, 520 F.3d at 177. It also reasonably found
that prejudice to defendants could be presumed because the delay was not reasonable. See Lyell
Theatre Corp., 682 F.2d at 43. The court also reasonably found that Heendeniya’s pattern of
behavior and apparent willfulness suggested that the court’s interest in managing its docket
outweighed Heendeniya’s interest in being heard in this case. Heendeniya does not challenge
these findings on appeal.
II. Post-Judgment Motion
We review a motion to alter or amend a judgment under Rule 59(e) or a motion for relief
from a judgment under Rule 60(b) for abuse of discretion. Padilla v. Maersk Line, Ltd., 721 F.3d
77, 83 (2d Cir. 2013) (Rule 59); United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009)
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(Rule 60).
Under Rule 59(e), a party may move to alter or amend a judgment no later than 28 days
after the entry of the judgment. Fed. R. Civ. P. 59(e). “[R]econsideration [of a judgment] will
generally be denied unless the moving party can point to controlling decisions or data that the court
overlooked.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Even assuming
that his motion was timely, Heendeniya did not satisfy this standard. Heendeniya argued that the
district court did not adequately consider his mental disability when granting defendants’ motions
to dismiss. However, while the record contained evidence that Heendeniya suffers from post-
traumatic stress disorder and bipolar disorder, which affect his ability to focus, it did not contain
evidence showing the extent to which these conditions limited his ability to meet the court’s
deadlines, nor evidence showing that these conditions limited his functioning during the period
when he failed to meet the deadlines.
Rule 60(b) provides a mechanism to obtain relief from a final judgment on grounds
including “mistake . . . or excusable neglect,” “newly discovered evidence,” “misconduct by an
opposing party,” or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). Such relief is
available only if the movant demonstrates “exceptional circumstances.” Ruotolo v. City of New
York, 514 F.3d 184, 191 (2d Cir. 2008).
Heendeniya did not show entitlement to Rule 60(b) relief. Liberally construed, his brief
argues that his mental disability and stresses associated with harassment and surveillance he is
suffering at the hands of law enforcement agencies establish both excusable neglect and the
necessary extraordinary circumstances warranting relief. But the district court concluded that
Heendeniya’s noncompliance with court orders was not excusable, and Heendeniya did not support
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his post-judgment motion with evidence that would lead the court to reevaluate that conclusion.
See Padilla, 721 F.3d at 83 (identifying the factors relevant to “excusable neglect” claims as
“(1) the danger of prejudice to the non-movant, (2) the length of the delay and its potential impact
on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable
control of the movant, and (4) whether the movant acted in good faith”). Heendeniya presented
new evidence in support of his post-judgment motion, but it largely had no bearing on his ability
to timely respond to the defendants’ discovery demands and thus no bearing on whether his failure
to do so was excusable. Although he asserted that his mental condition deteriorated as a result of
law enforcement actions during the relevant period, he did not explain why he was able to draft
lengthy interrogatories—but not responses—under those circumstances. Nor did Heendeniya
explain why he could not have presented any of this assertedly new evidence to the district court
before entry of the judgment. Thus, his contention that the district court erred by denying Rule
60(b) relief fails to persuade.
Finally, Heendeniya argues on appeal that some of the defendants engaged in misconduct
by responding vaguely to his interrogatories, but he did not raise this issue before the district court,
and we decline to consider it for the first time on appeal. See Greene v. United States, 13 F.3d
577, 586 (2d Cir. 1994) (“[I]t is a well-established general rule that an appellate court will not
consider an issue raised for the first time on appeal.”).
We have considered all of Heendeniya’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment and order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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