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Fang v. State

United States District Court, D. New Jersey

May 4, 2015

YUAN FANG, Plaintiff,
v.
STATE OF NEW JERSEY, et al., Defendants.

REPORT AND RECOMMENDATION

DOUGLAS E. ARPERT, Magistrate Judge.

This matter comes before the Court sua sponte based on Plaintiff's failure to comply with certain Court Orders and otherwise prosecute this case. For the reasons set forth below, it is respectfully recommended that this matter be DISMISSED WITH PREJUDICE.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff filed her Complaint on August 13, 2012, alleging various claims against Defendants arising out of Plaintiff's employment with the New Jersey Department of Transportation ("NJDOT"). See Dkt. No. 1. On December 17, 2012, Defendants filed a Motion to Dismiss Counts I, II, III, V and VI pursuant to Federal Rule of Civil Procedure 12(b)(6) [Dkt. No. 7], which was granted by the Court on July 31, 2013 [Dkt. No. 16]. On June 6, 2014, Attorney Herbert J. Tan filed an unopposed Motion to withdraw as counsel for Plaintiff. See Dkt. No. 22. The Court granted Attorney Tan's Motion to withdraw on July 9, 2014, and allowed Plaintiff twenty-one days to obtain new counsel. See Dkt. No. 23.

The Court convened an in-person status conference on August 19, 2014, which Plaintiff did not attend. See Dkt. No. 24. On August 22, 2014, the Court entered an Order directing Plaintiff to appear before the Court on September 12, 2014, and instructed Plaintiff that if she failed to appear, her Complaint would be recommended for dismissal.[1] See Dkt. No. 25. Plaintiff did not appear before the Court on September 12, 2014, and to date, Plaintiff has not entered an appearance or in any way communicated with the Court.

II. DISCUSSION

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, 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. The Court notes that despite being directed to do so on more than one occasion, Plaintiff has failed to appear before the Court since the withdrawal of her attorney, which she did not oppose. The Court has not received any communication or response from Plaintiff, even after the possible dismissal of this action was threatened. Accordingly, for the reasons that follow, the Court finds that based on the present circumstances, the Poulis factors support the dismissal of this matter with prejudice.

1. Plaintiff's Personal Responsibility

In this case the Court finds Plaintiff to be personally responsible for her failure to comply with the Court's Orders directing Plaintiff to appear on August 19, 2014 and September 12, 2014. Although Plaintiff was initially represented by counsel in this action, Plaintiff's counsel made a Motion to withdraw, which Plaintiff did not oppose or respond to in any way. When the Motion to withdraw was granted August 9, 2014, Plaintiff was allowed twenty-one days to obtain new counsel, after which Plaintiff would be deemed pro se. Plaintiff did not obtain counsel and is, therefore, proceeding pro se.

While Plaintiff now proceeds pro se, that status does not insulate Plaintiff from personal responsibility. See, e.g. Shandex Indus. Inc. v. Vent Right Corp., No. 09-4148, 2011 WL 6132439, at *4 (D.N.J. Dec. 8, 2011) (holding the defendant, a pro se litigant, personally responsible for failure to comply with court orders and failure to appear without explanation); Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912, 920 (3d Cir. 1992) (noting that, as pro se litigants, defendants "had personal responsibility for the conduct of the litigation"). Rather, Plaintiff's pro se status renders her solely responsible for the prosecution and pursuit of her case. See Balla v. Vortez, No. 10-104, 2011 WL 1749928, at *2 (D.N.J. May 6, 2011) ("Plaintiff chose to proceed pro se and, therefore, bears sole responsibility for the prosecution of his claims and compliance with the rules of discovery and this Court's orders.").

Since the withdrawal of her attorney, to which Plaintiff did not object, Plaintiff has not entered an appearance or complied with the Court's Orders directing her to appear. Though the Court has not received any correspondence from Plaintiff in response to the Motion of her attorney to withdraw or the Court's Orders directing Plaintiff to appear, a copy of Mr. Tan's Motion and copies of the Court's subsequent Orders were mailed to Plaintiff at her home address and there is no indication that any of the above were returned. Therefore the Court finds that Plaintiff's failure to comply with the Orders ...


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