DANIELS v. DAEMEN UNIVERSITY (2025)

REPORT AND RECOMMENDATION

Familiarity with the procedural history of this case is presumed. Pro se plaintiff Cassandra Daniels commenced this action on September 7, 2023, alleging employment discrimination and retaliation by defendant Daemen University, and seeking “such relief as may be appropriate, including injunctive orders, damages, costs and attorney's fees”. Complaint [1]¹ . On October 18, 2024, Daemen moved [24] to dismiss Daniels’ Complaint, with prejudice, due to her failure to timely serve the mandatory disclosures required by Fed. R. Civ. P. (“Rule”) 26(a)(1).

Responding to that motion, Daniels requested “an updated scheduling order [so] that I may produce the missing discovery and have an opportunity to seek gainful representation and ․ seek justice and a remedy for the harm done”. [31], ¶18. In a February 3, 2025 Report, Recommendation and Order [33], I denied Daniels’ request for a new scheduling order, as she had not shown diligence in attempting to meet the deadlines which I had imposed, and recommended that Daemen's motion be granted.

By Decision & Order dated June 26, 2025 [45], District Judge Lawrence J. Vilardo affirmed my denial of Daniels’ request for a new scheduling order, stating that he “cannot find that Judge McCarthy clearly erred in refusing to further amend the scheduling order after providing Daniels with several extensions”. Id. at 7, n. 6. However, he rejected my recommendation that the case be dismissed. While agreeing “that the willfulness and duration of Daniels's noncompliance; the fact that she had been warned; the possible prejudice to Daemen; and the interest in managing the court's docket all weigh in favor of imposing some sanction”, he did not believe “that no sanction other than the ultimate sanction of dismissal would be appropriate”. Id. at 10-11. He therefore referred the case back to me “to impose a lesser sanction, perhaps assessing an appropriate award of attorney's fees from Daniels to Daemen”. Id. at 2-3.

By Order dated June 27, 2025 [46], I invited the parties to suggest an appropriate sanction. Having considered their suggestions [47, 53, 54] and heard oral argument on July 25, 2025 [55], for the following reasons I conclude that there is only one appropriate sanction short of outright dismissal.

DISCUSSION

“A district court has wide discretion to impose sanctions, including severe sanctions, under Federal Rule of Civil Procedure 37.” Design Strategy, Inc. v. Davis, 469 F.3d 284, 294 (2d Cir. 2006). Although Judge Vilardo stated his preference as to an appropriate sanction, he did not expressly limit my discretion to impose or recommend any particular sanction other than dismissal, recognizing that “Daniels may be subject to ․ the possibility of evidence preclusion”. Decision & Order [45] at 12, n. 10. While expressing skepticism as to whether preclusion would be appropriate (id.), he did not foreclose its consideration.

Rule 37(c)(1) states that “[i]If a party fails to provide information or identify a witness as required by Rule 26(a) ․ the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard ․ may” impose a lesser sanction. However, “ ‘may’ does not mean ‘must’ ”. Coutard v. Municipal Credit Union, 848 F.3d 102, 111 (2d Cir. 2017). “[A]lthough sanctions can vary depending on the circumstances, the baseline rule is that the required sanction in the ordinary case is mandatory preclusion”, Harriman v. Hancock County, 627 F.3d 22, 29 (1st Cir. 2010), which “provides a strong inducement for disclosure of material that the disclosing party would expect to use as evidence”. Rule 37 Advisory Committee Notes, 1993 Amendment.

In deciding whether to preclude evidence or impose a lesser sanction, the court should consider: “(1) the party's explanation for the failure to comply with the disclosure requirement; (2) the importance of the testimony of the precluded witnesses; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance”. Design Strategy, 469 F.3d at 296. These factors “must be weighed in light of the full record in the case”. Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1068 (2d Cir. 1979). In this case, none of them weigh in favor of leniency.

1. Daniels’ explanation for her failure to comply with the disclosure requirement.

Daniels argues that she has “suffered a variety of physical, mental, and emotional adversities since the commencement of this action”, which have “severely hampered [her] ability to complete tasks, meet deadlines, and often times maintain a consistent thought chain”. Daniels’ Objections [36] at 2, 3. However, the medical documentation which she has belatedly submitted (id. at 9-12) does not convince me that she was unable to meet the deadline for submitting her Rule 26(a)(1) disclosures. Moreover, she never raised those issues to me, even after I extended her deadline for making her initial disclosures from March 15 to July 5, 2024. See Case Management Order [12], ¶1; Amended Case Management Order [18], ¶1.

Daniels’ suggestion that she “was afraid to ask for further deadline extensions” (Objections [36] at 3) rings hollow, given the fact that she requested (and was granted) numerous extensions of various deadlines. See [27, 28, 29, 34, 35, 40, 41, 42, 43, 48, 49, 51, 52]. While she also claims to have “tried diligently to get an attorney of the Volunteer Lawyer's Project to help me consistently” (Objections [36] at 3), she did not require the assistance of an attorney to prepare her Rule 26(a)(1) disclosures, because both my original and Amended Case Management Orders spelled out in detail what was required by the Rule. See [12], ¶3; [18], ¶1.

Moreover, the Rule 26(a)(1) disclosures [37] which Daniels finally did file on March 12, 2025 - over eight months after they were due and over five months after the close of fact discovery ² - do not even arguably satisfy the requirements of Rule 26(a)(1). See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642 (1976) (“[n]ot only did respondents fail to file their responses on time, but the responses which they ultimately did file were ․ grossly inadequate”).

While listing 13 individuals who “may be likely to have discoverable information on which Plaintiff may rely”, Daniels’ disclosures failed to provide “if known, the address and telephone number of each individual ․ along with the subjects of that information”, as required by Rule 26(a)(1)(A)(i). Nor did they provide “a computation of each category of damages claimed” and “make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based”, as required by Rule 26(a)(1)(A)(iii).

Since Daniels must have had “some evidence that an injury occurred and some basis for calculating the damages ․ before filing suit”, she was obligated to disclose “the best information then available to [her] concerning that claim, however limited and potentially changing it may be”. 6 Moore's Federal Practice, § 26.22[4][c][ii] (Matthew Bender 3d ed. 2025). See also Rule 26(a)(1)(E) (“[a] party is not excused from making its disclosures because it has not fully investigated the case”).

Moreover, “Rule 26(a)(1)(A)(iii) requires more than merely setting forth the figure demanded ․ [T]he disclosures must be sufficiently specific that the opposing party has some basis to calculate the damages claimed against it”. Lawrence v. Goals Aesthetic and Plastic Surgery, 2024 WL 3742398, *7 (S.D.N.Y. 2024).

2. The importance of the testimony of the witnesses.

Since Daniels failed to disclose the subjects on which her witnesses might testify, “[t]he Court is unable to gauge the potentially probative value of the witness testimony”. In re Cole, 2022 WL 963749, *7 (Bankr. E.D.N.Y. 2022). As Judge Vilardo noted, “Daniels has not yet shown that her position is likely to be of substance”. Decision & Order [45] at 13.

3. The prejudice suffered by Daemen.

“The very purpose of Rule 26(a)(1) disclosures is to minimize for both parties the expenditure of time and money”, Chinn v. Elmwood Franklin School, 2018 WL 6738326, at *2 (W.D.N.Y.), adopted, 2018 WL 6266193 (W.D.N.Y. 2018), by “ensur[ing] that a party knows at a very early date of the witnesses its opponent intends to use to support a claim or defense so that the party can notice any depositions it will need”. Gardner-Alfred v. Federal Reserve Bank of New York, 2023 WL 2366916, at *2 (S.D.N.Y. 2023). “The damages computation in particular further enables the defendant to understand the contours of its liability exposure and, by extension, to make informed decisions regarding settlement.” Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 240 (D. Nev. 2017). Thus, “[t]he benefits of initial disclosures are significant”. Id.

Daniels’ failure to make the Rule 26(a)(1) disclosures in a timely and proper fashion has deprived Daemen of the ability to properly formulate its strategy for pretrial discovery, and/or to make an informed decision about an early settlement. The fact that Daemen “could have obtained the undisclosed information by other means is not a substantial justification for nondisclosure”. Famous Music Corp. v. 716 Elmwood, Inc., 2007 WL 5041415, *7 (W.D.N.Y. 2007); 6 Moore's Federal Practice, § 26.27[2][c].

Finally, Daniels argues that “the few months of delay for initial discovery disclosure did not substantially harm Daemen ․ considering the fact that discovery in civil cases could extend into years”. Objections [36] at 6. Not so in this case: under my Amended Case Management Order ([18], ¶¶5, 7), the deadline for completion of fact discovery expired on September 30, 2024, and the deadline for all discovery expired on January 30, 2025. See Philadelphia Indemnity Insurance Co. v. Chicago Title Insurance Co., 2011 WL 13552045, *3 (N.D. Ill. 2011) (“WCP does not contend that it made Horton's identity as a potential witness known to CT before the close of discovery. Thus Rule 37(c)(1) comes into play ․ [T]he Court concludes that the nondisclosure is not harmless, in view of the fact that discovery closed before WCP identified Horton”).

4. The possibility of a continuance.

Although he affirmed my denial of Daniels’ request to extend discovery deadlines, Judge Vilardo left “any adjustments to discovery necessary as a result of this decision to [my] discretion”. Decision & Order [45] at 7, n. 6. However, my discretion to adjust discovery deadlines is limited by Rule 16(b)(4), which clearly states that “[a] schedule may be modified only for good cause” (emphasis added). In this Circuit, “a finding of ‘good cause’ depends on the diligence of the moving party”. Parker v. Columbia Pictures Industries, 204 F.3d 326, 340 (2d Cir. 2000) (quoted in each of my Case Management Orders - [12] at 5, [18] at 4).

I denied Daniels’ request for an extension of the deadlines due to her lack of diligence. Report, Recommendation and Order [33] at 4-5. Judge Vilardo affirmed that denial (Decision & Order [45] at 7, n. 6), agreeing that Daniels’ “conduct throughout the course of this litigation certainly has been less than diligent” (id. at 11). Given those findings, I do not have discretion to extend the expired discovery deadlines - and even if I had such discretion, I would not do so. “Disregard of the scheduling order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier. Rule 16 was drafted to prevent this situation, and its standards may not be short-circuited.” Parker, 204 F.3d at 340.³

“For the court to now say that it did not mean what it stated in the ․ Scheduling Order ․ would significantly undermine the court's authority and the reliance of counsel in other cases, subject to this court's scheduling orders, upon the integrity of such orders.” Arnold v. Krause, Inc., 232 F.R.D. 58, 66 (W.D.N.Y. 2004), adopted, 233 F.R.D. 126 (W.D.N.Y. 2005). As Judge Vilardo has recognized, “strict enforcement of the good cause requirement of Rule 16 may seem like unnecessarily strong medicine ․ And insisting that parties meet strict deadlines for motions to extend may seem unnecessarily rigid as well. But ․ if the courts do not take seriously their own scheduling orders who will?” Gentner v. Navient Solutions, Inc., 2022 WL 3334269, *3 (W.D.N.Y. 2022).

Accordingly, Daniels’ belated Rule 26(a)(1) disclosure cannot be considered, since doing so would amount to a de facto extension of the deadline for its submission. See FIH, LLC v. Foundation Capital Partners LLC, 920 F.3d 134, 145-46 (2d Cir. 2019) (“disclosure of the expert report would have extended discovery beyond the already-extended, agreed-upon, and court-ordered discovery deadline. We therefore identify no error or abuse of discretion in the district court's exclusion of the expert's report”); Potter v. Phillips, 2004 WL 3250122, *3 (E.D.N.Y. 2004) (“granting the relief short of preclusion that the defendants suggest - namely, an opportunity for further discovery - would allow the defendants to accomplish indirectly what I would not allow if asked directly: an extension of the discovery deadline”).

AN APPROPRIATE SANCTION

Daniels argues that her case “needs to proceed in the interest of justice”. Proposal for Appropriate Sanctions [53], ¶28. While I have some sympathy for her situation, courts “always instruct juries (civil and criminal alike) that such factors as sympathy cannot be allowed to influence either their deliberations or their decisions, and a judge ․ must be similarly guided”. Rauen v. United States Tobacco Manufacturing Limited Partnership, 161 F. Supp. 2d 899, 901 (N.D. Ill.), opinion supplemented on denial of reconsideration, 2001 WL 1223529 (N.D. Ill. 2001), aff'd, 319 F.3d 891 (7th Cir. 2003).

The interest of justice requires fairness not only to Daniels, but also to Daemen. “Ensuring that justice is done between the parties includes respect for the procedural rules that govern the lawsuit process”. Kraft v. Marriott International Inc., 2022 WL 18460615, *4 (W.D.N.Y. 2022), adopted, 2023 WL 414329 (W.D.N.Y. 2023); 1 Moore's Federal Practice, § 1.21[1][c]. “Pro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.” Edwards v. I.N.S., 59 F.3d 5, 8 (2d Cir. 1995).

“[W]hile pro se litigants may in general deserve more lenient treatment than those represented by counsel, all litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions.” McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988); Decision and Order [45] at 9.

Although Daniels maintains that she “has engaged in good faith in the prosecution of her case since initiating the matter [on] September 7, 2023 (Proposal for Appropriate Sanctions [53], ¶21), I disagree. See Report, Recommendation and Order [33] at 6; Decision & Order [45] at 10 (noting “the willfulness and duration of Daniels's noncompliance”). In any event, “a ‘bad-faith’ violation of the Rule 26 is not required in order to exclude evidence pursuant to Rule 37.” Design Strategy, 469 F.3d at 296 (emphasis in original).

Judge Vilardo believes that “courts should always seek to impose the least harsh sanction that will remedy the discovery violation and deter such conduct in the future”. Decision & Order [45] at 10. However, “a modest and limited award of attorney's fees” (id. at 12) would not remedy Daniels’ failure to timely provide her Rule 26(a)(1) disclosures. Whereas lesser sanctions “are generally more appropriate than evidence preclusion when the disclosure is provided during the discovery period and the delay can be remedied during the existing discovery period or with a limited and brief extension of discovery”, Silvagni, 320 F.R.D. at 243, in this case the discovery period has expired, and cannot be extended without violating Rule 16(b)(4).

Moreover, although a modest award of attorney's fees might deter Daniels herself from violating discovery orders in the future, it would not be much of a lesson to others. See National Hockey League, 427 U.S. at 643 (“it might well be that ․ respondents would faithfully comply with all future discovery orders entered by the District Court in this case. But other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other district courts”). “[I]f parties are allowed to flout their obligations, choosing to wait to make a response until a trial court has lost patience with them, the effect will be to embroil trial judges in day-to-day supervision of discovery, a result directly contrary to the overall scheme of the federal discovery rules.” Cine Forty-Second St., 602 F.2d at 1068.

Daemen maintains that dismissal is the most appropriate sanction in this case. Hilliker Declaration [47], ¶¶5-22. While I agree, I may not recommend this sanction in light of Judge Vilardo's Decision & Order. Daemen argues in the alternative that “if the Court does not dismiss the instant action, it should preclude all of Plaintiff's evidence, and award attorney's fees and costs to Defendant”. Id., ¶23.

Short of dismissal, I agree that the only meaningful sanction is preclusion of all evidence which should have been timely disclosed under Rule 26(a)(1).⁴ See Richmond v. General Nutrition Centers Inc., 2012 WL 762307, *8 (S.D.N.Y. 2012) (“failure to disclose [the] measure of damages in [Rule] 26(a)(1) initial disclosures, standing alone, is sufficient ground to preclude such evidence at trial”); City and County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal. 2003) (preclusion would be appropriate where “the plaintiffs made no showing whatsoever and utterly failed in their disclosure obligations”). However, if my recommendation of preclusion is adopted, then I will not impose an additional award of attorney's fees, as that would in my view be overkill.

Finally, Daniels renews her request for appointment of counsel [56]. In denying her previous request, Judge Vilardo concluded that she had “not yet shown that her position is likely to be of substance ․ Indeed, this case has barely progressed to discovery”. Decision & Order [45] at 13. Given my refusal to extend the expired deadlines for discovery, coupled with my recommendation that Daniels be precluded from offering evidence in support of her claims, her renewed request for appointment of counsel is again denied.

CONCLUSION

“Rule 37(c)(1) is clear that the presumptive sanction for a failure to disclose is preclusion ․ If Rule 37 is to have any credibility, its presumptive sanction must be applied in circumstances such as these.” Smith v. Prudential Insurance Co. of America, 2023 WL 355915, *3 (D.R.I. 2023).

For the reasons discussed, I recommend that Daniels be precluded from offering any information which should have been timely disclosed under Rule 26(a)(1), and I order that Daemen's request for an award of attorney's fees and Daniels’ motion for appointment of counsel [56] both be denied.

Unless otherwise ordered by District Judge Vilardo, any objections to this Report and Recommendation must be filed with the clerk of this court by August 18, 2025. Any requests for extension of this deadline must be made to Judge Vilardo. A party who “fails to object timely ․ waives any right to further judicial review of [this] decision”. Wesolek v. Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).

Moreover, the district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).

The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court's Local Rules of Civil Procedure, written objections shall “specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection ․ supported by legal authority”, and must include “a written statement either certifying that the objections do not raise new legal/factual arguments, or identifying the new arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply with these provisions may result in the district judge's refusal to consider the objections.

FOOTNOTES

1.   Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF pagination.

2.   The deadline for their filing was July 5, 2024, and the deadline for completion of fact discovery was September 30, 2024. See Amended Case Management Order [18],¶1, 5; August 26, 2024 Text Order [23].

3.   See also Schlagenhauf v. Holder, 379 U.S. 104, 121 (1964) (“[t]he Federal Rules of Civil Procedure ․ should not be expanded by disregarding plainly expressed limitations”); Nutraceutical Corp. v. Lambert, 586 U.S. 188, 192-93 (2019) (“[w]here the pertinent rule or rules invoked show a clear intent ․ courts are without authority to make exceptions”).

4.   While preclusion may lead to dismissal, it is not itself dismissal. See Decision & Order [45] at 12, n. 10 (differentiating between dismissal and preclusion).

JEREMIAH J. MCCARTHY, United States Magistrate Judge