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D.B. v. BLOOM

August 15, 1995

D.B., Plaintiff,
v.
HOWARD BLOOM, D.D.S., and MADISON DENTAL CENTRE, Defendants.



The opinion of the court was delivered by: STANLEY S. BROTMAN

 BROTMAN, DISTRICT JUDGE:

 INTRODUCTION

 This matter is before the court on plaintiff's motion for entry of default judgment pursuant to Fed. R. Civ. P. 55(b)(2). For the reasons set forth below, plaintiff's motion is granted.

 I. PROCEDURAL HISTORY

 Plaintiff D.B. *fn1" filed a complaint in this matter on May 14, 1993, alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (the "NJLAD"), and the tort of intentional infliction of emotional distress. Plaintiff seeks compensatory and punitive damages, injunctive relief, and attorneys fees and costs. Defendants Dr. Bloom and Madison Dental Centre filed an answer on July 6, 1993. This court has jurisdiction over the claims by virtue of federal question jurisdiction and supplemental jurisdiction. 28 U.S.C. §§ 1331 and 1367(a), respectively.

 United States Magistrate Judge Robert B. Kugler entered numerous discovery and scheduling Orders in this matter, but defendants refused to comply with such orders even as the court granted repeated extensions prolonging the discovery period for ten months. Having received no discovery by July 1994, plaintiff filed a motion to compel discovery, for sanctions pursuant to Fed. R. Civ. P. 37(b), and specifically, for an Order striking defendants' answer and defenses pursuant to Rule 37(b)(2)(c).

 In a letter opinion resolving plaintiff's motion, dated August 29, 1994, Judge Kugler carefully discussed the six factors that the Third Circuit Court of Appeals, in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), determined must be evaluated before default may be entered in an action. Letter Opinion, No. 93-2094, slip op. at pages 8-12 (D.N.J. August 29, 1994). The six Poulis factors are: 1) the extent of the party's personal responsibility; 2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; 3) a history of dilatoriness; 4) whether the conduct of the party or the attorney was willful or in bad faith; 5) the effectiveness of sanction other than dismissal; and 6) the meritoriousness of the claim or defense. Id. at 867. Judge Kugler correctly concluded that the factors weighed in plaintiff's favor, and Judge Kugler granted plaintiff's motion and struck defendants' answer and entered default as a sanction for defendants' wilful failure to comply with discovery. In addition, defendants' counsel, having been unable to maintain any contact with his clients, moved to be relieved as counsel. Judge Kugler deemed the motion to be granted upon the condition that defendants' counsel serve a copy of the letter opinion and order upon defendants at their last known addresses within twenty-one days of the order.

 Plaintiff then moved for default judgment. Although provided with advance notice of the proof hearing on the motion held on February 7, 1995, defendants did not appear or otherwise respond.

 II. FINDINGS OF FACT

 1. Plaintiff D.B. is a resident of New Jersey who, in the fall of 1992, tested positive for the antibodies associated with HIV, the human immunodeficiency virus believed to be the causative agent of acquired immune deficiency syndrome ("AIDS"). (Transcript, 2/7/95 at 10).

 2. Due to a car accident in August, 1992, D.B. suffered from a cracked tooth which caused pain and required dental treatment. (Tr. at 10-11).

 3. D.B. decided to go to defendant Madison Dental Centre, having read a full page advertisement that appeared on the back of The Speedliner, a free publication distributed to mass transit passengers in the Philadelphia and South Jersey regions. (Tr. at 10).

 4. Dr. Bloom, who practiced dentistry at and owned Madison Dental Centre located at 6500 Madison Ave., Pennsauken, New Jersey, first treated D.B. in November, 1992. D.B. returned to Dr. Bloom to have his cracked tooth extracted on December 1, 1992. (Tr. at 11).

 6. When D.B. and Dr. Bloom were unable to agree on the need for general anesthesia, they decided to consult D.B.'s physician on the matter. D.B.'s physician was unavailable so they spoke with the medical director, who asked D.B. for permission to inform Dr. Bloom of D.B.'s HIV status. D.B., who had informed only four people of his HIV status, was reluctant to share this information with Dr. Bloom whom D.B. perceived as not "trustworthy" nor able to "handle" the information. D.B. acquiesced in the medical director's request, ...


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