The opinion of the court was delivered by: Garrett E. Brown, Jr., U.S.D.J.
This matter comes before the Court upon the motion of defendants Aramark Corporation and Aramark Harrison Lodging ("Defendants" or "Aramark") seeking dismissal of all claims asserted against them by pro se plaintiff Anita Jiminez ("Plaintiff" or "Jiminez") pursuant to Federal Rule of Civil Procedure 41(b). The Court has considered Defendants' submission*fn1 and decided this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the Court will grant Defendants' motion and dismiss Plaintiff's complaint with prejudice.
On April 18, 2007, plaintiff Anita Jiminez filed a complaint ("Complaint") against defendants Aramark Corporation and Aramark Harrison Lodging in Superior Court, Mercer County, New Jersey, alleging sexual harassment and retaliatory termination. (Jiminez v. Aramark Corporation, et al., Docket Number MER-L-963-07.) On June 13, 2007, Defendants removed the case to federal court in the District of New Jersey on diversity grounds. (Docket Entry No. 1.)
On August 24, 2007, Defendants served a set of interrogatories and a request for production of documents (collectively, "Requests") on Plaintiff's counsel. (Docket Entry No. 7-3, Ex. A.) In an order dated August 28, 2007, Magistrate Judge Hughes directed the parties to conduct initial disclosure by September 14, 2007, and to complete discovery by February 29, 2008. (Docket Entry No. 4.) On September 27, 2007, defense counsel sent a letter to Plaintiff's counsel reminding him that Plaintiff's initial disclosures were past due and that Plaintiff's responses to Defendants' Requestshad been due on September 23, 2007. (Docket Entry No. 7-3, Ex. B.) Defense counsel asserts that he also attempted to reach Plaintiff's counsel with numerous telephone calls and messages, to which he did not reply. (Docket Entry No. 7-3, Certification.)
On October 5, 2007, defense counsel sent another letter to Plaintiff's counsel, stating that he would resort to motion practice if he did not receive Plaintiff's discovery responses by October 10, 2007. (Docket Entry No. 7-4, Ex. C.) In a telephone conversation on October 10, 2007, Plaintiff's counsel assured defense counsel that Plaintiff's discovery response would be forthcoming and as a result, defense counsel agreed to forego motion practice. (Docket Entry No. 7-3, Certification.) In the week following, defense counsel did not receive Plaintiff's responses, nor was he able to reach Plaintiff's counsel by telephone. (Id.) On October 17, 2007, Plaintiff's counsel requested another week-long extension, which defense counsel granted. (Docket Entry No. 7-4, Ex. D.) Plaintiff's counsel again failed to submit Plaintiff's responses by October 24, 2007 and defense counsel tried to telephone him on October 25, 2007 (Docket Entry No. 7-3, Certification.), finally reaching him at his home on October 26, 2007. (Id.) In this conversation, Plaintiff's counsel requested another week, due to illness, which defense counsel granted. (Id.)
On October 31, 2007, Plaintiff's counsel withdrew from the case and Plaintiff proceeded pro se. (Docket Entry No. 7-4, Ex. E.) Defense counsel asserts that on or around this day, he spoke to Plaintiff's counsel by telephone, who "assured [him] that Plaintiff was aware of her immediate obligation to respond to Aramark's discovery requests and that he had provided her with all of those requests." (Id.)As of November 13, 2007, Defendants still had not received Plaintiff's responses. (Id.) Defense counsel wrote to Jiminez reminding her of her obligation and granting her an extension until November 16, 2007 to respond. (Id., Ex. F.) Defendants assert that Plaintiff did not respond to the November 13 letterand that she has not provided them with initial disclosures or a response to their discovery requests. (Docket Entry No. 7-3, Certification.)
On December 20, 2007, Magistrate Judge Hughes granted Defendants leave to file a motion to dismiss Plaintiff's complaint for failure to prosecute or, alternatively, for an order compelling Plaintiff to respond to discovery requests and to make initial disclosures. (Id.) On January 3, 2008 Defendants filed this motion ("Motion") to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 41(b) or, in the alternative, to compel Plaintiff's discovery responses. (Docket Entry No. 7.)
Defendants submit that Plaintiff's repeated failure to respond to discovery requests and initial disclosures warrants dismissal under Federal Rule of Civil Procedure 41(b). In the alternative, Defendants seek an order to compel discovery. Plaintiff does not oppose Defendants' Motion.
Rule 41(b) of the Federal Rules of Civil Procedure, which governs the involuntary dismissal of an action and claim provides that:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication upon the merits.
Fed. R. Civ. P. Rule 41(b). Although dismissal is a harsh sanction reserved for use in limited circumstances, National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976), it is an appropriate remedy where a party fails to prosecute the action. Fed. R. Civ. P. 41(b); Harris v. City of Philadelphia, 47 F.3d 1311, 1330 (3d Cir. 1995). "[T]he authority to dismiss [a claim] for lack of prosecution, both on defendants' motion and sua sponte, is an inherent. . . 'control necessarily vested in courts to manage their own affairs so as to achieve the orderly and ...