The opinion of the court was delivered by: Noel L. Hillman, U.S.D.J.
This matter comes before the Court by way of Defendant Accounts Receivables Management, Inc.'s motion [Doc No. 23] seeking the involuntarily dismissal of Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. Plaintiff did not file opposition to Defendant's motion,*fn1 and the time for filing opposition has now expired. The Court has considered Defendant's motion and decides this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendant's motion will be denied without prejudice.
Plaintiff Helen Baker brings this action alleging claims against Defendant for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. The Court exercises jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d).
Plaintiff commenced this action on October 11, 2011 by filing a complaint alleging that Defendant violated the FDCPA by making repetitive and harassing telephone calls to Plaintiff from approximately August of 2010 through March of 2011 in its attempt to collect a consumer credit card debt allegedly owed by Plaintiff. (Compl. [Doc. No. 1] ¶¶ 13-14, 18.) Plaintiff claims that Defendant's representatives called Plaintiff multiple times a day and at inconvenient hours; threatened legal action against Plaintiff including the garnishing of her wages; falsely accused Plaintiff of mail fraud and threatened Plaintiff with arrest; and began calling both of Plaintiff's parents to coerce Plaintiff into paying the alleged credit card debt. (Id. ¶¶ 19-21, 25, 27, 29-32.) The complaint also asserts that Defendant violated the Act by failing to notify Plaintiff of her right to dispute the validity of the debt or to demand verification thereof. (Id. ¶ 15.)
From the time the complaint was filed in October of 2011 until the summer of 2012, Plaintiff was represented by Amy L. Bennecoff, Esquire, Christopher J. Kelleher, Esquire, and Jacob U. Ginsburg, Esquire, of the law firm of Kimmel and Silverman P.C. (hereinafter collectively referred to as "Kimmel and Silverman") located in Cherry Hill, New Jersey. On July 3, 2012, Kimmel and Silverman filed a motion to withdraw from the representation certifying that Plaintiff had discharged Kimmel and Silverman on June 29, 2012 and had elected to proceed pro se in this matter. (Certification of Amy L. Bennecoff [Doc. No. 12-1] ¶¶ 2-3.) Counsel's certification indicated that the "discharge resulted from fundamental disagreements between counsel and Ms. Baker, and [Ms. Baker's] failure to substantially fulfill certain obligations to her counsel." (Id.)
On August 28, 2012, the Honorable Karen M. Williams, the United States
Magistrate Judge assigned to this case, conducted a hearing on Kimmel
and Silverman's motion to withdraw. (See Minute Entries [Doc. Nos. 18,
19].) Plaintiff appeared at the August 28, 2012 hearing via telephone,
and did not object to Kimmel and Silverman's withdraw. (Id.; see also
Am. Order [Doc. No. 21] 1, Aug. 28, 2012.) By Amended Order*fn2
dated August 28, 2012 ("August 28, 2012 Order"), Judge
Williams granted Kimmel and Silverman's motion to withdraw from this
matter effective thirty days from the date of the Order. (Am. Order
[Doc. No. 21] 1-2, Aug. 28, 2012.) Judge Williams further ordered
Plaintiff to "either retain new counsel or notify the Court, in
writing, of her intent to proceed pro se" in this action on or before
October 1, 2012. (Id. at 2.) To follow up on the directives of the
August 28, 2012 Order, Judge Williams scheduled an in-person status
conference for October 5, 2012 at 3:00 p.m. (Id.) The August 28, 2012
Order noted that if no counsel appeared on Plaintiff's behalf at the
October 5, 2012 conference, the Court would contact Plaintiff by
telephone at her home in Kentucky to participate in the conference.
Despite the explicit directives set forth in the August 28, 2012 Order, the record reflects that by the October 1, 2012 deadline no counsel filed a notice of appearance on Plaintiff's behalf, nor did Plaintiff notify the Court in writing of her intent to proceed pro se. At the subsequent October 5, 2012 in-person conference before Judge Williams, no counsel appeared on Plaintiff's behalf and accordingly the Court attempted to contact Plaintiff at her home via telephone. (See Minute Entry [Doc. No. 22] 1.) At that time, the Court was unable to reach Plaintiff at the telephone number she previously provided, and the conference was adjourned. (Id.)
Thereafter, Defendant filed the present motion seeking to dismiss Plaintiff's complaint with prejudice pursuant to Rule 41(b).
Pursuant to Rule 41(b) governing involuntary dismissals, a defendant may move to dismiss an action or any claims against it where the plaintiff either fails to prosecute the case or fails to comply ...