JUAN A. PAYAMPS, Plaintiff,
HUAN LE, Defendant.
REPORT AND RECOMMENDATION
ANN MARIE DONIO, Magistrate Judge.
Presently before the Court is the motion of Defendant, Huan Le, to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 37(d). (See Motion to Dismiss [Doc. No. 21].) The issue presented by the pending motion is whether pro se Plaintiff's alleged failure to comply with discovery obligations, in addition to the Court's Order dated September 9, 2013, warrants the dismissal of Plaintiff's complaint. In light of the dispositive nature of Defendant's request, this motion will be determined on a Report and Recommendation basis pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). The Court has considered Defendant's submission, and notes that Plaintiff filed no opposition, and that the time within which to file opposition has expired. For the reasons set forth herein, the Court recommends that Defendant's motion be granted.
On November 13, 2012, Plaintiff filed the complaint in this action and an application to proceed in forma pauperis. (See generally Complaint Received [Doc. No. 1].) In the complaint, pro se Plaintiff, Juan A. Payamps, generally alleges that Defendant Officer Huan Le used excessive force while effectuating an arrest of Plaintiff on August 30, 2012. (See Complaint Received [Doc. No. 1], 3.) By Order dated December 5, 2012, the District Court granted Plaintiff's application to proceed in forma pauperis, and permitted Plaintiff's "Fourth Amendment excessive force claim under 42 U.S.C. § 1983" to proceed past sua sponte dismissal. (Order [Doc. No. 4], Dec. 5, 2012, 2.) On July 19, 2013, Defendant filed a motion to dismiss, in which Defendant asserted that Plaintiff's "persistent failure to cooperate with discovery" necessitated dismissal of Plaintiff's complaint. (Certification of Counsel [Doc. No 16-1], ¶ 12.) Specifically, Defendant contended that Plaintiff failed to respond to Defendant's letters concerning Plaintiff's allegedly "deficient" responses to interrogatories, failed to respond to Defendant's notice to produce documents, and failed to provide executed medical authorizations. ( Id. at ¶¶ 8-11.) By Order dated September 9, 2013, the Court denied Defendant's motion without prejudice, but directed Plaintiff to respond to Defendant's letters concerning outstanding discovery requests, in addition to directing Plaintiff to file a notice of address change in accordance with Local Civil Rule 10.1(a). (Order [Doc. No. 19], Sept. 9, 2013, 4-5.) The Court's Order expressly stated that, "failure to comply... may result in the imposition of sanctions including, without limitation, the dismissal of Plaintiff's complaint[.]" ( Id. at 5.)
In the "renewed" motion to dismiss presently before the Court, Defendant asserts that "Plaintiff has completely failed to comply with any aspect" of the Court's September 9, 2013 Order. (Memorandum of Law in Support of Defendant's Motion to Dismiss (hereinafter, "Def.'s Br.") [Doc. No. 21-2], 3.) Consequently, Defendant asserts that, "Plaintiff's lack of attention" and "participation in discovery demonstrates an utter disregard of Court Rules" and "his own lawsuit[, ]" warranting dismissal of Plaintiff's complaint. (Id.)
The Federal Rules of Civil Procedure provide for the striking of a pleading and the dismissal of an action if a party fails to comply with a discovery order. See FED. R. CIV. P. 37(b)(2)(A). FED. R. CIV. P. 37(b)(2)(A) provides in relevant part:
If a party... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(iii) striking pleadings in whole or in part;
(v) dismissing the action or proceeding in whole or in part;
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
FED. R. CIV. P. 37(b)(2)(A)(iii), (v), (vii). However, "[d]ismissals with prejudice or defaults are drastic sanctions, termed extreme' by the Supreme Court, and are to be reserved for such cases.'" Chiarulli v. Taylor, No. 08-4400 , 2010 WL 1371944, at *2 (D.N.J. Mar. 31, 2010)(quoting Poulis v. State Farm Fire & Cas. Co. , 747 F.2d 863, 867-68 (3d Cir. 1984)), adopted by, 2010 WL 1566316 (D.N.J. Apr. 16, 2010).
"In deciding whether sanctions that deprive a party of the right to proceed with or defend against a claim' are appropriate, the Court considers the following factors set forth by the Third Circuit in Poulis v. State ...