12-1849
    Antonmarchi v. Consol. Edison Co. of New York, Inc.


                          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 15th day of March, two thousand thirteen.

    PRESENT:
                JOHN M. WALKER, JR.,
                GERARD E. LYNCH,
                SUSAN L. CARNEY,
    _____________________________________

    Ariel Antonmarchi,

                              Plaintiff-Appellant,

                     v.                                                 12-1849

    Consolidated Edison Company of New York,
    Inc.,

                      Defendant-Appellee.
    _____________________________________


    FOR PLAINTIFF -APPELLANT:                             Ariel Antonmarchi, pro se, Staten Island,
                                                          NY.


    FOR DEFENDANT-APPELLEE:                               Lawrence R. Sandak, Amanda Dealy
                                                          Haverstick, Daniel Louis Saperstein,
                                                          Proskauer Rose LLP, Newark, NJ.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Laura Taylor Swain, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Ariel Antonmarchi, pro se, appeals from: (1) an order granting partial

summary judgment to defendant-appellee Consolidated Edison Company of New York, Inc.

(“Con Edison”) on the ground that certain of his claims brought pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and Section 740 of the New York

State Labor Law (“§ 740”), were untimely, and (2) a final judgment dismissing his action

pursuant to Federal Rule of Civil Procedure 37(b) and the district court’s inherent authority due

to his willful noncompliance with the district court’s discovery orders and his withholding of

relevant discovery material, some of which was spoliated. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

       Federal Rule of Civil Procedure 37(b) provides that, when a party fails to comply with a

discovery order, a court may impose sanctions that include dismissal of the action in whole or in

part. See Fed. R. Civ. P. 37(b)(2)(A)(v). We review the imposition of sanctions for abuse of

discretion, and the factual findings made in support of the district court’s decision for clear error.

See S. New England Tel. Co. v. Global NAPs Inc., 

, 143 (2d Cir. 2010); see also

Sieck v. Russo, 

, 134 (2d Cir. 1989) (“We . . . prefer to . . . provide the teeth to

enforce discovery orders by leaving it to the district court to determine which sanction from

among the available range is appropriate.”). We have indicated that “[s]everal factors may be

useful in evaluating a district court’s exercise of discretion” to impose sanctions pursuant to Rule


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37, including: “(1) the willfulness of the non-compliant party or the reason for noncompliance;

(2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance[;] and

(4) whether the non-compliant party had been warned of the consequences of noncompliance.”

Agiwal v. Mid Island Mortg. Corp., 

, 302-03 (2d Cir. 2009) (internal quotation

marks and ellipsis omitted).

       We have reviewed the record in light of these principles and affirm the district court’s

dismissal with prejudice of Antonmarchi’s action. First, the record amply supports the district

court’s finding that Antonmarchi’s noncompliance was willful. Antonmarchi represented to the

district court that he possessed relevant evidence, brandishing several documents during a court

conference, which he later claimed were not in fact relevant. He then defied two court orders to

produce the documents immediately, waiting more than six weeks to produce any material to

Con Edison. In addition, Antonmarchi admitted to concealing and spoliating discoverable

evidence by shipping boxes of relevant documents to Puerto Rico during the pendency of his

litigation, and failing to produce another box of documents that was later destroyed when his

basement flooded in 2005. Second, the efficacy of lesser sanctions to correct Antonmarchi’s

noncompliance is doubtful, given that the court gave him two opportunities to comply with its

orders, neither of which he took. Antonmarchi refused to provide the address to which he

claimed he had shipped the documents. Instead, Antonmarchi flouted his discovery obligations

by testifying that the district court’s orders “didn’t matter” to him and that he had determined not

to produce material even though he had been ordered to do so. Third, the noncompliance was

extended. The district court had already previously imposed lesser sanctions for lesser discovery

violations, namely a reopening of discovery for defendants and an obligation that Antonmarchi


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sit for a second deposition. Finally, Antonmarchi was given notice that the action might be

dismissed for failure to comply with discovery orders and an opportunity to respond. See World

Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 

, 160 (2d Cir. 2012)

(“Parties must be given notice and an opportunity to respond before a cause of action, or

potential remedy, is dismissed as a sanction for failure to comply with court orders.”).

       Because we conclude that the district court did not abuse its discretion in dismissing the

action, Antonmarchi’s objections to the grant of summary judgment are moot, as all claims

would have been dismissed under Rule 37 even had they survived summary judgment. See

Graham v. City of New York, 443 F. App’x 657, 659 (2d Cir. 2011) (“[B]ecause the district

court’s Rule 37 dismissal was proper, Graham’s appeal is moot insofar as he seeks to argue the

underlying merits of the action.”).

       In any event, Antonmarchi’s challenges to the grant of summary judgment fail on the

merits. We review a grant of summary judgment de novo and affirm if the district court properly

concluded that there was no genuine issue as to any material fact and the moving party was

entitled to judgment as a matter of law. Miller v. Wolpoff & Abramson, L.L.P., 

,

300 (2d Cir. 2003). In determining whether there are genuine issues of material fact, we are

“required to resolve all ambiguities and draw all permissible factual inferences in favor of the

party against whom summary judgment is sought.” Terry v. Ashcroft, 

, 137 (2d Cir.

2003) (internal quotation marks omitted). However, “conclusory statements or mere allegations

[are] not sufficient to defeat a summary judgment motion.” Davis v. State of New York, 

, 100 (2d Cir. 2002).




                                                 4
        Our review of the record reveals no error in the district court’s decision that certain of

Antonmarchi’s Title VII and § 740 claims should be dismissed as time-barred. First, with

respect to his Title VII claims, the district court correctly determined that a plaintiff in a Title

VII action must file a charge of discrimination or retaliation with the Equal Employment

Opportunity Commission (“EEOC”) within 300 days of the alleged conduct. See 42 U.S.C. §

2000e-5(e)(1). Because Antonmarchi filed his charge with the EEOC on April 2, 2003, the

district court correctly found that only incidents occurring on or after June 6, 2002 were

actionable. While Antonmarchi attempts to save certain of his Title VII claims by asserting that

he had filed a charge with the EEOC at an earlier date, our review of the record confirms that,

even though he may have been in contact with the EEOC prior to April 2003, he did not file any

formal charge until that time. Accordingly, the district court was correct that conduct pre-dating

June 6, 2002 was not actionable under Title VII.

        Second, with respect to his claims under § 740, Antonmarchi challenges only the district

court’s determination that equitable tolling of those claims was not appropriate under the

circumstances of this case. We review a district court’s decision to deny equitable tolling for

abuse of discretion. See Zerilli-Edelglass v. N.Y. City Transit Auth., 

, 81 (2d Cir.

2003). When determining whether equitable tolling is appropriate, a district court must consider

whether the person seeking application of the doctrine has “acted with reasonable diligence

during the time period she seeks to have tolled,” and has proved that the circumstances are so

extraordinary that the doctrine should apply. Chapman v. ChoiceCare Long Island Term

Disability Plan, 

, 512 (2d Cir. 2002). Thus, equitable tolling is considered

appropriate where, for example, a plaintiff was unaware of his cause of action due to misleading


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conduct of the defendant, see Miller v. Int’l Tel. & Tel. Corp., 

, 24 (2d Cir. 1985), or

where a plaintiff’s medical condition or mental impairment prevented him from proceeding in a

timely fashion, see, e.g., Brown v. Parkchester S. Condos., 

, 60-61 (2d Cir. 2002).

       In this case, there was no claim that Con Edison did anything to conceal from

Antonmarchi any legal rights he may have had, or that Antonmarchi suffered from a medical

condition or impairment that prevented him from filing his complaint on time. Instead,

Antonmarchi asserted in district court that he was late in filing his complaint because he was

unaware of the statute of limitations, and because he had received incorrect information from a

third party concerning his remedies. The district court properly exercised its discretion in

rejecting those assertions, reasoning that ignorance of the law is not sufficient to justify equitable

tolling and that Antonmarchi otherwise failed to demonstrate extraordinary circumstances to

justify application of the doctrine in his case.

       We have considered Antonmarchi’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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