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Marcelino Malabanan v. Bio-Reference Laboratories

May 21, 2012

MARCELINO MALABANAN,
PLAINTIFF,
v.
BIO-REFERENCE LABORATORIES, INC., DEFENDANT.



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

REPORT AND RECOMMENDATION

BACKGROUND

On May 20, 2011, plaintiff, Marcelino Malabanan ("plaintiff") filed the Complaint in the Superior Court of New Jersey, Law Division, Essex County. On June 23, 2011, defendant Bio-Reference Laboratories, Inc. ("defendant") removed the action. On July 14, 2011, defendant filed an Answer to the Complaint.

On July 20, 2011, the Court entered an Order, scheduling an initial conference for September 7, 2011. The July 20th Order directed the parties to exchange initial disclosures pursuant to Fed. R. Civ. P. 26. Additionally, the Order emphasized that failure to comply with the terms therein may result in the imposition of sanctions.

On September 7, 2011, counsel for both plaintiff and defendant appeared at the conference. On September 9, 2011, the Court entered a Scheduling Order ("Scheduling Order"), which set forth, among other things, deadlines for completing fact and expert discovery. Specifically, the Scheduling Order required that parties serve interrogatories by September 21, 2012, and respond within 30 days of receipt. Additionally, the Scheduling Order scheduled a telephone status conference for December 7, 2011. The Scheduling Order further emphasized that failure to comply with the order would result in sanctions pursuant to Fed. R. Civ. P. 16(f) and 37.

On December 7, 2011, counsel for both parties participated in the telephone status conference. On December 8, 2011, this Court issued an Order directing plaintiff to provide interrogatory answers by January 21, 2012, or otherwise be subject to sanctions. A telephone status conference was scheduled for February 8, 2012.

In his letter of January 24, 2012, defense counsel advised the Court that plaintiff had not provided answers to written discovery as directed by the Court in its December 8th Order. As such, defense counsel requested permission to file a motion to dismiss the action pursuant to Fed. R. Civ. P. 37(d).

On February 6, 2012, attorney Paula Dillon, on behalf of Krumholz Dillon, P.A., filed a motion to withdraw as plaintiff's counsel. The motion was based on plaintiff's failure to communicate with counsel, respond to discovery, or otherwise cooperate with prosecuting his claims. Ms. Dillon also advised that plaintiff has failed to provide her firm with his current mailing address. In November 2011, plaintiff's counsel sent correspondence to him by certified mail, which was returned as unclaimed. Ms. Dillon unsuccessfully searched for an alternative address for plaintiff. On February 7, 2012, this Court adjourned the February 8th telephone status conference pending the outcome of the motion to withdraw.

On February 9, 2012, this Court issued an Order, granting Ms. Dillon's motion and directing her to provide plaintiff with a copy of the Order. The Order directed plaintiff to have new counsel enter an appearance on his behalf by March 20, 2012. If new counsel was not secured by that date, plaintiff would be deemed to be proceeding on a pro se basis and thus required to attend all court appearances. The Order also scheduled an in person status conference for March 21, 2012. The Order highlighted that failure to attend the conference would result in sanctions.

Out of an abundance of caution, this Court sent a copy of the February 9th Order to plaintiff by regular and certified mail/return receipt requested.*fn1 On or about March 7, 2012, the mailed copy of the Order was returned as undeliverable to plaintiff. On or about March 9, 2012, the Court received an unexecuted receipt card.

On March 21, 2012, plaintiff did not appear at the conference*fn2 On March 22, 2012, 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 plaintiff's failure to attend the Court ordered March 21, 2012 Conference. The Order to Show Cause was returnable on April 16, 2012. Plaintiff was directed to file any written submissions with the Court by April 12, 2012. The Court sent a copy of the March 21st Order to plaintiff at the same address in Hillside, New Jersey by regular and certified mail/return receipt requested. The certified mail was returned unexecuted.

In a letter dated March 30, 2012, plaintiff's former counsel, attorney Mr. Alan Krumholz, of Krumholz Dillon, P.A., advised this Court that plaintiff may be out of the country. On April 3, 2012, this Court entered an Order, reminding Mr. Krumholz that his firm was relieved as counsel for plaintiff. As such, the Court advised him that his firm is no longer counsel of record and should not file documents on behalf of plaintiff.

Before the April 16, 2012 Order to Show Cause hearing, plaintiff did not file any written submissions. No party or counsel appeared on behalf of plaintiff at the April 16th Order to Show ...


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