Davis v. Citibank

Civil Practice

New York Law Journal


Judge Robert Sweet

Citibank moved under Federal Rule of Civil Procedure 37 to strike and/or dismiss pro se plaintiff's complaint. The underlying litigation involved non-payment of a credit card. The parties appeared before the court, which established a timetable for completion of discovery suggesting that depositions of plaintiff and a Citibank representative would be sufficient. Plaintiff opposed Citibank's request for deposition and sought a protective order, contending that he was pro se and should not be required to be deposed. The court denied the motion. Plaintiff failed to appear for deposition, sending a memorandum and note of issue acknowledging receipt of the order but reiterated his objection. Citibank has now moved to strike the complaint and/or have the action dismissed based on plaintiff's failure to appear and his alleged willful disobedience of the court order. In consideration of plaintiff's pro se status, and upon review of the record, the court ruled that the extreme sanction of dismissal of the action was not appropriate at this time. The court held that plaintiff's deposition would be held on a date mutually agreeable to the parties on or before twenty days of this order, and plaintiff was directed to appear for his deposition.

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