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Howard Johnson International, Inc. v. DKS

April 27, 2010

HOWARD JOHNSON INTERNATIONAL, INC., PLAINTIFF,
v.
DKS, LLC; SANTOKH SINGH; PARAMJIT DEOL; BALDEV BAJWA; GURINDER DHILLON; AND SUKHBIR SINGH, DEFENDANTS.



The opinion of the court was delivered by: Honorable Madeline Cox Arleo

REPORT AND RECOMMENDATION

BACKGROUND

On May 13, 2008, plaintiff, Howard Johnson International, Inc. ("plaintiff") filed the complaint. On February 27, 2009, attorney Babak Pourtavoosi entered an appearance on behalf of defendants Baldev Bajwa, Santokh Singh, Gurinder Dhillon, Paramjit Deol and DKS, LLC (sometimes collectively referred to as the "Bajwa defendants"). No party or counsel entered an appearance on behalf of Defendant Sukhbir Singh. The Bajwa defendants filed an Answer with affirmative defenses and asserted counterclaims against plaintiff on March 23, 2009.

On June 11, 2009, this Court entered a Letter Order, scheduling an initial conference for July 16, 2009 ("June 11th, Letter Order"). The June 11th, Letter Order directed the parties to exchange Fed. R. Civ. P. 26 disclosures. Additionally, parties who wished to serve written discovery were directed to do so immediately. The June 11th, Scheduling Order emphasized that failure to comply with the terms therein may result in the imposition of sanctions. The July 16, 2009 initial conference was adjourned until August 10, 2009.

On August 10, 2009, counsel for both plaintiff and the Bajwa defendants appeared at the conference. On August 11, 2009, the Court entered a Pretrial Scheduling Order, which set forth, among other things, deadlines for discovery and amendments to the pleadings. A telephone status conference was scheduled for October 14, 2009, and subsequently rescheduled for October 28, 2009. The Pretrial Scheduling Order emphasized that failure to comply with the discovery schedule would result in sanctions pursuant to FED. R. CIV. P. 16(f) and 37.

On November 5, 2009, attorney Babak Pourtavoosi moved for leave to withdraw as counsel for defendants Deol and Dhillon. Mr. Pourtavoosi's basis for filing the motion was these two defendants' failure to respond or otherwise cooperate with Mr. Pourtavoosi in preparing a defense to this litigation. Accordingly, this Court granted Mr. Pourtavoosi's motion by Order entered on December 14, 2009 and directed him to provide Deol and Dhillon with copies of the Order. Deol and Dhillon were directed to have new counsel enter an appearance by December 30, 2009. If new counsel was not secured by that date, Deol and Dhillon would be deemed to be proceeding on a pro se basis. The parties were directed to appear for a status conference on January 8, 2010 at 12:00 p.m..

On December 23, 2009, Judge Greenaway inadvertently dismissed the action without prejudice as to all parties and provided 60 days for the action to be reopened if the settlement is not consummated. Rather, plaintiff had settled the action only as to defendants DKS, Santokh Singh, Deol and Bajwa. As such, in its December 28, 2009 letter, plaintiff asked the Court to reinstate the action as to defendants Dhillon and Suhkbir Singh only. On January 12, 2010, Judge Greenaway entered an Order, reopening the case.

On February 3, 2010, this Court entered an Amended Letter Order, granting Mr. Pourtavoosi's motion to withdraw as counsel for Dhillon and directed him to provide Dhillon with a copy of this Order. The Court also directly sent a copy of this Order to Dhillon. This Order further directed Dhillon to have new counsel enter an appearance by February 22, 2010; otherwise, Dhillon would be deemed to be proceeding on a pro se basis. Plaintiff as well as the non-settling defendants Dhillon and Sukhbir Singh were directed to appear for a status conference on February 25, 2010. On February 24, 2010, the Court entered an Order adjourning the February 25th status conference until March 11, 2010 due to inclement weather.

On March 11, 2010, only plaintiff's counsel appeared at the conference. No party or counsel appeared on behalf of either Dhillon or Sukhbir Singh. On March 18, 2010, this Court issued an Order to Show Cause why monetary/reprimand sanctions should not be imposed pursuant to Fed. R. Civ. P. 16(f), arising out of both defendants' failure to attend the Court ordered March 11, 2010 Conference. The Order to Show Cause was returnable April 26, 2010 at 11:00 a.m. Both Dhillon and Sukhbir Singh were directed to file any written submissions with the Court by March 26, 2010.

Before the April 26, 2010 hearing, Dhillon did not file any written submissions. Additionally, on April 26, 2010, no party or counsel appeared on behalf of Dhillon.

DISCUSSION

Defendant Dhillon's failure to comply with the Orders of this Court require this Court to determine the appropriate sanctions to impose. In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit Court of Appeals set forth six factors which must be considered in determining whether to dismiss a plaintiff's action. Poulis, 747 F.2d at 868. The 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 sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense." Id. at 868. The Court is required to balance each factor in its analysis. Id.

1. The Extent of Dhillon's Personal Responsibility

Following the Court's Order and Amended Order relieving Mr. Pourtavoosi as counsel for Dhillon, the Court essentially afforded Dhillon more than sixty days to retain new counsel or appear before the Court on a pro se basis. Instead, Dhillon chose not to appear before the Court on either March 11, 2010 or April 26, 2010 as directed. This Court finds that Dhillon is personally responsible for his failure to comply with the orders of this Court. His failure to appear and defend his case demonstrates a willful decision to disregard the orders of the Court. Dhillon was warned that continued failure to comply with the Orders of this Court would ...


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