Tripathy v. Schneider et al

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Sanjay Tripathy,
Plaintiff,
v.
Andrea N. Schneider, et al.,
Defendants.
DECISION and ORDER
21-cv-6339-FPG-MJP
INTRODUCTION
Pedersen, M.J. Plaintiff pro se Sanjay Tripathy moves for re-
consideration of my earlier decision awarding Defendants attorney fees.
(D&O, ECF No. 210, Dec. 18, 2024.) Because his arguments should have
been raised in opposition to Defendants’ fees application, his motion is
too little too late and I therefore DENY it.
BACKGROUND
I assume familiarity with the procedural history of this case be-
fore my recent decision and order finding that Defendants should receive
attorney fees. (ECF No. 182, Oct. 18, 2024.) There, I denied the parties’
dueling Rule 11 motions. (Id. at 6–17.) But I admonished Tripathy “that
any future violations of the Rules of Federal Civil Procedure, including
Rule 11, or the Local Rules of Civil Procedure of this Court may result
in monetary sanctions, in dismissal of this action, or in other appropri-
ate sanctions.” (Id. at 15.) I told Tripathy that I now consider him “on
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notice that he must follow all Federal Rules of Civil Procedure and Local
Rules of Civil Procedure. If he violates any rule such that sanctions are
warranted, he has been given the warnings to which he is entitled.” (Id.
(emphasis removed).)
I likewise denied Tripathy’s motion to compel.1 First, Tripathy
failed to include the certification required by Fed. R. Civ. P. 37(a)(1). (Id.
at 18–20.) Although Tripathy submitted a certification in his reply, I
found it insufficient. (Id. at 19–20.) Next, I addressed Tripathy’s contin-
ued request for discovery about “illegal substances.” I first noted how
Tripathy failed to challenge my earlier ruling2 denying him discovery on
illegal substances. I thus concluded that Tripathy could not compel dis-
closures regarding illegal substances that he never mentioned in his
complaint. (Id. at 21–22.) I found appropriate an award of attorney fees:
“Thus, Defendants may apply for attorney[] fees under Fed. R. Civ. P.
37(a)(5)(B) because I am denying Tripathy’s motion to compel on the
1 The motion to compel is located at ECF No. 135.
2 As such, Tripathy has likely lost his ability to appeal my ruling to the
Second Circuit: “Failure to object to a magistrate judge’s ruling concerning a
non-dispositive motion forfeits the right to any further review of that decision,
either by the district court or on appeal.” Kilcullen v. New York State Dep't of
Transp., 55 F. App’x 583, 585 (2d Cir. 2003) (citing Spence v. Maryland Cas.
Co., 995 F.2d 1147, 1155 (2d Cir. 1993)); see also Caidor v. Onondaga County,
517 F.3d 601, 605 (2d Cir. 2008) (“Accordingly, we hold that a pro se litigant
who fails to object timely to a magistrate's order on a non-dispositive matter
waives the right to appellate review of that order, even absent express notice
from the magistrate judge that failure to object … will preclude appellate re-
view.”).
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merits, insofar as it seeks discovery about ‘illegal substances,’ and am
issuing a protective order.” (Id. at 23.)
Tripathy now moves for reconsideration of that ruling. (ECF No.
212, Dec. 25, 2024.) He does not disagree with the amount I later calcu-
lated for Defendants’ attorney fees.3 Instead, he asks for “a reduction,
deferment, or installment plan for the payment of this award due to fi-
nancial hardship, ongoing appeals, related litigation, and the potential
for settlement.” (Id. at 1.) Defendants oppose, contending that “the
Court clearly addressed all arguments that [Tripathy] raises in his re-
cent motion” for reconsideration. (Halliyadde Decl. in Oppn. ¶ 3, ECF
No. 213, Dec. 27, 2024 (citing D&O, ECF No. 210).) I construe Tripathy’s
motion as seeking reconsideration under Fed. R. Civ. P. 60(b).
LEGAL STANDARD
Under Fed. R. Civ. P. 60(b), Tripathy must identify “an interven-
ing change of controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest injustice.” Virgin Atl.
Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)
(quotation 	omitted). 	This 	standard 	“is 	strict,” 	and, 	relevant 	here,
3 For clarity, I found fees should be awarded in a decision and order
located at ECF No. 182 and calculated the appropriate award in a separate
decision and order at ECF No. 210. It is possible that Tripathy should have
moved for reconsideration after my initial decision that fees were warranted,
but I have nonetheless decided I will consider his motion for reconsideration
on the merits. In any event, Defendants have not raised this issue.
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“reconsideration will generally be denied unless the moving party can
point to controlling decisions or data that the court overlooked—mat-
ters, in other words, that might reasonably be expected to alter the con-
clusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995). Whether to grant or deny a motion for reconsidera-
tion is “committed to the sound discretion of the district court.” Abu
Dhabi Com. Bank v. Morgan Stanley & Co., 888 F. Supp. 2d 478, 483
(S.D.N.Y. 2012).
DISCUSSION
Because Tripathy’s arguments for reconsideration are a rehash of
arguments he already raised—or could have raised—in opposition to De-
fendants’ fees application, I deny his motion. Moreover, I find no mani-
fest injustice in my earlier decision and order awarding fees.
Tripathy first argues that “[i]mposing the full fee award at this
time would cause significant financial hardship.” (Decl. in Supp. of Re-
consideration Mot. at 2, ECF No. 212.) He raises his appeals and other
cases, perhaps to show that the Court’s decision to impose fees could
make his other cases financially difficult to maintain.4
4 The Court has doubts about this claim. As Defendants point out, Trip-
athy “recently completed deposing six individuals in one of his other cases
which also shows his financial capability to afford payments for such deposi-
tions.” (Halliyadde Decl. in Oppn. ¶ 6, ECF No. 213.) Likewise, Tripathy has
repeatedly “expresse[d] his intent to further engage in appeals and litigation
which clearly shows his financial ability to sue and appeal.” (Id. ¶ 5.)
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Maybe so, but in my view, Tripathy failed to follow my earlier
ruling that illegal substances are irrelevant to his case by moving to
compel discovery responses about them.5 As the Second Circuit has rec-
ognized, all litigants—including pro se litigants—must follow court rul-
ings. See McDonald v. Head Crim. Ct. Supervisor Officer, 850 F.2d 121,
124 (2d Cir. 1988) (“[W]hile pro se litigants may in general deserve more
lenient treatment than those represented by counsel, all litigants, in-
cluding pro ses, have an obligation to comply with court orders. When
they flout that obligation they, like all litigants, must suffer the conse-
quences of their actions.”); see also Agiwal v. Mid Island Mortg. Corp.,
555 F.3d 298, 302 (2d Cir. 2009). In this case, that consequence is attor-
ney fees stemming from a failed motion to compel.
And so, a host of cases hold that a party’s “pro se status does not
shield” him or her “from the sanction of attorney[] fees.” See, e.g., De-
loache-Holford v. Liberty Mut. Ins., No. 08 CV 1792 (SJF)(LB), 2010 WL
2787626, at *3 (E.D.N.Y. May 25, 2010), report and recommendation
adopted as modified, No. 08-CV-1792(SJF)(WDW), 2010 WL 2787622
(E.D.N.Y. July 9, 2010); LeGrande v. Adecco, 233 F.R.D. 253, 257–58
(N.D.N.Y. 2005). Unfortunately, poverty is not a bar to the imposition of
sanctions. See, e.g., Deloache-Holford, 2010 WL 2787626, at *3; Baker v.
5 The Court’s earlier order was unambiguous. Thus, the Court will not
consider Tripathy’s argument about his disagreement with the Court’s earlier
rulings on the question of the relevance of illegal substances.
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Ace Advertisers’ Serv., Inc., 134 F.R.D. 65, 74 (S.D.N.Y. 1991), report and
recommendation adopted, 153 F.R.D. 38 (S.D.N.Y. 1992) (observing that
“defendants should not be asked to shoulder the economic burden of
plaintiff’s willful misconduct” and requiring pro se plaintiff to pay the
expenses, 	including 	attorney 	fees, 	incurred as 	a 	result 	of 	defend-
ants’ Rule 37 motion).
Second, although it is likewise a recapitulation, Tripathy does
hone his argument on exoneration and unjust conviction, noting that
“[t]hese 	circumstances 	further 	warrant 	lenience 	regarding 	the 	fee
award.” (Decl. in Supp. of Reconsideration Mot. at 4, ECF No. 212.) But
this argument misses the mark. Even the most sympathetic litigant
with a meritorious case will be sanctioned if he or she fails to follow a
court directive or loses a discovery motion.
And so, this case is straightforward as far as attorney fees are
concerned. First, I ruled that illegal substances are not relevant because
they are not mentioned (except in passing) in Tripathy’s complaint. This
decision fell well within the text of Fed. R. Civ. P. 26. Second, in that
same decision, I warned Tripathy that if he lost another discovery mo-
tion, he would face attorney fees. Third, Tripathy did not appeal or oth-
erwise challenge that decision. Fourth, Tripathy moved to compel dis-
covery about illegal substances. But I saw no reason to alter my earlier
ruling, leading to Tripathy losing his motion to compel. (Tripathy lost
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the balance of his motion to compel for failure to include the certification
required by Fed. R. Civ. P. 37(a)(1)). In sum, Defendants should receive
attorney fees.
Tripathy has likewise presented no new reason for the Court to
reconsider its decision awarding fees and directing entry of judgment.
See Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d
Cir. 2012) (explaining that a motion for reconsideration is not a “vehicle
for relitigating old issues, presenting the case under new theories, se-
curing a rehearing on the merits, or otherwise taking a ‘second bite at
the apple’”). Tripathy thus fails to meet his burden on his latest motion
to reconsider.
CONCLUSION
For these reasons, I deny Tripathy’s motion for reconsideration.
Tripathy must pay attorney fees as provided for in my earlier decision
and order.6
IT IS SO ORDERED.
Dated: 	January 13, 2025
Rochester, NY 	/s/ Mark W. Pedersen
MARK W. PEDERSEN
United States Magistrate Judge
6 Defendants may, but are not required, to negotiate a payment plan or
other deferment of the fees award.
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