United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
TONIANNE J. BONGIOVANNI, Magistrate Judge.
This matter has been brought before the Court upon a motion by Defendant Narragansett Bay Insurance Company ("Narragansett") seeking the dismissal of the Complaint filed by Plaintiffs in the above-captioned matter pursuant to Federal Rule of Civil Procedure ("Rule") 37(b)(2)(A) as well as the imposition of Narragansett's reasonable expenses, including attorneys' fees, on Plaintiffs pursuant to Rule 37(b)(2)(C). [Docket Entry No. 8]. Plaintiffs have not opposed Narragansett's motion. For the reasons that follow, it is respectfully recommended that Narragansett's motion be GRANTED and that this matter be DISMISSED WITH PREJUDCIE.
BACKGROUND AND PROCEDURAL HISTORY
On March 11, 2014, Narragansett removed this case from the Ocean County Superior Court of New Jersey. [Docket Entry No. 1]. This matter involves a breach of insurance contract claim stemming from Hurricane/Superstorm Sandy. After the matter was removed, the Court entered a Letter Order setting a discovery schedule to govern this case. ( See Letter Order of 3/18/2014; Docket Entry No. 3). According to the Order entered by the Court, the parties were to exchange Initial Disclosures no later than April 4, 2014 and all fact discovery was to be completed by July 14, 2014. ( Id. )
Narragansett timely served Plaintiffs with its Rule 26(a)(1) Initial Disclosures. Plaintiffs did not and, in fact, to date still have not served Narragansett with their Initial Disclosures. Despite having never received Plaintiffs' Initial Disclosures, on March 28, 2014, Narragansett served Plaintiffs with requests for discovery, including its First Set of Interrogatories and Requests for Production of Documents. Plaintiffs failed to timely respond to Narragansett's discovery demands. As such, Narragansett wrote to Plaintiffs, requesting that they provide their overdue discovery responses and Initial Disclosures. Plaintiffs failed to respond to Narragansett's letter. As a result, on May 15, 2014, Narragansett wrote to the Court seeking its assistance in compelling Plaintiffs to provide their overdue discovery.
In response to Narragansett's letter of May 15, 2014, the Court emailed Plaintiffs, copying Narragansett. ( See Email from Andrew Bradford to Vern Pedro of 5/20/2014). In that correspondence, the Court instructed Plaintiffs to "either write to inform [the Court] if there is an issue or, if none exists, to provide the [outstanding discovery] responses to Defendant." ( Id. ) Plaintiffs did not respond to the Court's email. Having heard nothing from Plaintiffs, the Court contacted Narragansett to see if Plaintiffs had produced the outstanding discovery or otherwise had responded to it. ( See Email from Andrew Bradford to Eric Konecke of 6/4/2014). Narragansett responded that while it had received certain documents from Plaintiffs on May 22, 2014, it had not received responses to its Interrogatories or Document Requests. ( See Email from Eric Konecke to Andrew Bradford of 6/4/2014). In light of Narragansett's response, the Court entered an Order requiring Plaintiffs to produce all outstanding responses to Narragansett's Interrogatories and Document Requests by June 18, 2014. (Text Order of 6/4/2014; Docket Entry No. 7). Plaintiffs failed to produce their overdue discovery responses as required by the Court's Order. Given Plaintiffs' failure to comply with this Court's Order and produce the outstanding discovery, on July 11, 2014, Narraganset filed the instant motion seeking to dismiss Plaintiffs' Complaint pursuant to Rule 37(b)(2)(A).
On July 14, 2014, the Court conducted a telephone conference in this matter. Plaintiffs' representative appeared on the conference. The Court instructed Plaintiffs to produce the outstanding discovery and either work out a withdrawal of Narragansett's motion to dismiss with Narragansett or file a response to the motion. The Court also advised Plaintiffs that it would likely approve a one to two week extension of time for filing opposition papers if requested. Finally, the Court advised Narragansett that moving forward, with respect to other Hurricane/Superstorm Sandy cases, Narragansett could avoid motion practice and simply write the Court to advise it of any ongoing discovery concerns and then the Court would move the matter forward by way of order to show cause or other process.
Despite the Court's instructions, Plaintiffs did not produce the outstanding discovery responses. Similarly, Plaintiffs did not oppose Narragansett's motion to dismiss. Nor did Plaintiffs seek an extension of time to respond to Narragansett's motion.
The Federal Rules of Civil Procedure authorize courts to impose sanctions for failure to provide discovery, obey court orders and/or prosecute a case. See FED.R.CIV.P. 37(b)(2), 41(b). Where such failures have occurred, dismissal may be an appropriate penalty. Id. Generally, in determining whether to impose an involuntary order of dismissal with prejudice, the Court considers the factors set forth in Poulis v. State Farm Casualty Co., 747 F.2d, 863, 868 (3d Cir. 1984). These factors include:
(1) The extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the plaintiff's conduct; (3) the 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.
Id. No single Poulis factor is determinative and dismissal may be appropriate even if some of the factors are not met. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).
The Court considers the Poulis factors in determining whether to recommend the dismissal of this matter with prejudice. In so doing, as noted above, the Court is aware that despite having the opportunity to respond to Narragansett's motion to dismiss, Plaintiffs have not opposed same. Instead, as largely has been the case throughout the entirety of this litigation, the Court has heard only crickets. Indeed, Plaintiffs' uncompromising irresponsiveness has left the Court, much like Pink Floyd, questioning, "Hello, Is there anybody in there? Just nod if you can hear me. Is there anyone at home?... I'll need some information first[.] Just the basic facts[.]" PINK FLOYD, Comfortably Numb, on THE WALL (Columbia Records 1979). Unlike with the rock band, however, Plaintiffs' reticence has left the Court uncomfortably numb. For the reasons that follow, the Court finds that under the circumstances presented here, the Poulis factors support the dismissal of Plaintiffs' case with prejudice:
1. Plaintiffs' Personal Responsibility: The Court cannot definitively place the blame for Plaintiffs' failure to comply with its Orders of March 14, 2014 and June 14, 2014 as well as its email of May 20, 2014 on Plaintiffs themselves. Instead, the fault here could lie with Plaintiffs, their attorney or a combination of the two. Whether counsel failed to reach out to his clients to obtain the information required by the Court, whether Plaintiffs themselves failed to respond to counsel's inquiries or whether Plaintiffs decided to abandon their claims and counsel failed to so inform the Court, the Court cannot say. What the Court does know is that Plaintiffs, either on their own accord or ...