Cortez v. City of New York
722 F.3d 483
2d Cir.2013Background
- Plaintiffs are World Trade Center site-related office cleaners whose claims were consolidated in SDNY master dockets after 9/11.
- District court required sworn or certified interrogatory answers under 28 U.S.C. §1746 and granted multiple extensions to comply.
- The court rejected 85 plaintiffs' interrogatories as noncompliant and dismissed them, along with 85 others with no declaration, for failure to prosecute.
- The court extended the deadline (Aug. 29, 2011; Nov. 14, 2011; Dec. 2, 2011) but warned no further enlargements would be granted.
- On appeal, the court reviewed for abuse of discretion, affirming dismissal based on failure to prosecute and noncompliant certifications.
- A key issue was whether the certifications used by 85 plaintiffs satisfied §1746's requirement that statements be made 'under penalty of perjury'.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to prosecute was appropriate | Liaison counsel argues for more time or lesser sanctions. | District court acted within discretion after repeated extensions and notice. | District court did not abuse discretion; dismissal affirmed. |
| Whether certifications met §1746 requirement of 'under penalty of perjury' | Phrase 'subject to punishment' substantially complies with §1746. | Only 'under penalty of perjury' satisfies §1746; noncompliant language invalid. | Certifications lacking 'under penalty of perjury' do not comply; rejection upheld. |
Key Cases Cited
- Drake v. Norden Sys., Inc., 375 F.3d 248 (2d Cir. 2004) (abuse-of-discretion standard for failure-to-prosecute dismissals)
- Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004) (abuse-of-discretion review; factors for dismissal)
- Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (district courts' inherent power to manage dockets)
- In re Joint Eastern & Southern District Asbestos Litig., 982 F.2d 721 (2d Cir. 1992) (complex, aging litigation requires diligent management)
- Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300 (5th Cir. 1988) (phrase 'under penalty of perjury' essential to liability)
- Cooper v. Cape May Cnty. Bd. of Soc. Servs., 175 F.Supp.2d 732 (D.N.J. 2001) (unsworn declaration must include explicit penalty-of-perjury language)
- Kersting v. United States, 865 F.Supp.669 (D. Haw. 1994) (form and language of declarations under §1746)