UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
June 29, 2011
MICHELLE SIMMSPARRIS, PLAINTIFF,
AMY MALDONADO, DEFENDANT.
The opinion of the court was delivered by: Hochberg, District Judge:
NOT FOR PUBLICATION
This matter comes before the Court on a report and recommendation issued on April 25, 2011 by the Honorable Patty Shwartz; and Judge Shwartz having recommended that "the United States District Judge . . . (1) dismiss the Complaint with prejudice; (2) terminate the motion to dismiss the counterclaims and enter default against the plaintiff on the counterclaims; and (3) grant the defendant leave to file a motion for default judgment on her counterclaims, all pursuant to Fed. R. Civ. P. 16 and/or 37;" and it appearing that on April 19, 2011, plaintiff was ordered to appear before Magistrate Judge Shwartz on April 25, 2011 regarding discovery violations by plaintiff and that plaintiff failed to appear before Judge Shwartz at that time;*fn1 and it appearing that Magistrate Judge Shwartz set forth on the record on April 25, 2011 the events supporting the report and recommendation as an appropriate sanction for plaintiff's repeated, knowing violations of discovery orders; and it appearing that plaintiff has failed to comply with a whole series of discovery orders, including orders entered on February 23, 2011 (Docket # 22), March 28, 2011 (Docket # 29), April 13, 2011 (Docket #35), and April 19, 2011 (Docket #37);*fn2 and it appearing that the Third Circuit has identified six factors a court should consider when considering whether to dismiss an action for discovery misconduct: "(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," Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867 (3d Cir. 1984) (emphasis in original); and this Court finding that the Poulis factors weigh in favor of adopting the report and recommendation because: (1) plaintiff, an attorney, was personally responsible for repeated and deliberate refusals to comply with her discovery obligations, even after court orders to comply, because she is a trained attorney, well versed in the rules of procedure, and was on notice of both her discovery obligations and the consequences of failing to comply with those obligations;*fn3 (2) defendant has been prejudiced by plaintiff's repeated and contumacious refusal to produce for inspection and copying essential documents necessary to end this litigation and relieve defendant of the nightmare of having been in partnership with plaintiff, and thus vicariously liable for some of plaintiff's defaulted loans, which, along with plaintiff's suspensions and other disciplinary infractions, were allegedly concealed from defendant; (3) plaintiff has engaged in a consistent course of dilatory behavior by repeatedly failing to comply with court orders requiring her to produce documents for inspection and copying; (4) the record reflects that plaintiff has knowingly and intentionally failed to comply with her discovery obligations;*fn4 (5) plaintiff has repeatedly refused to comply with court orders compelling the production of documents;*fn5 and (6) plaintiff's complaint fails to properly allege a basis for federal subject matter jurisdiction*fn6 and consists largely of conclusory, rambling, and vitriolic statements of law with no factual support, which does not even remotely set forth a short and plain statement of facts entitling plaintiff to relief, whereas the counterclaims against plaintiff properly allege a basis for subject matter jurisdiction and contain clear and detailed factual allegations of defendant's mistreatment by Ms. SimmsParris;*fn7 and the Court having reviewed plaintiff's objections to the report and recommendation and the Court finding that plaintiff's objections are without merit; and the Court having reviewed de novo the report and recommendation and the April 25, 2011 record; and good cause appearing;
It is on this 29th day of June, 2011,
ORDERED that the April 25, 2011 report and recommendation of Magistrate Judge Shwartz is adopted as the opinion of this Court; and it is further
ORDERED that the complaint is dismissed with prejudice; and it is further ORDERED that the motion to dismiss defendant's counterclaims is terminated and that the Clerk of the Court is directed to enter default against plaintiff on defendant's counterclaims; and it is further
ORDERED that defendant is granted leave to file a motion for default judgment on her counterclaims.
Hon. Faith S. Hochberg, U.S.D.J.