United States District Court, D. New Jersey
REPORT & RECOMMENDATION
DUNN WETTRE. United States Magistrate Judge.
matter, having been opened by the Court sua sponte
based on plaintiff Yaakov Bradley's failure to comply
with this Court's Order to enter an appearance either by
counsel or pro se; and plaintiff having failed to
respond to the Order to Show Cause issued by this Court on
November 2, 2017, (ECF No. 42); and for good cause shown; it
is respectfully recommended that plaintiffs Complaint be
stricken and that his case be dismissed without prejudice.
pro se commenced this action by counsel on March 4,
2016 in the Superior Court of New Jersey, Essex County, Law
Division. See ECF No. 1 -1. Plaintiff alleged
defendants falsely arrested him and asserted multiple
violations of his constitutional and civil rights arising
from the incident. Defendants removed the action to this
Court on April 14, 2016. ECF No. 1. The Court granted the
motion by plaintiffs former counsel to withdraw on September
19, 2017, and ordered plaintiff to enter an appearance
pro se or retain substitute counsel on or before
October 19, 2017. ECF No. 39. After plaintiff failed to enter
an appearance, the Court issued an Order requiring plaintiff
to appear for an in-person conference on November 2, 2017.
ECF No. 41. When plaintiff failed to appear, the Court issued
an Order directing plaintiff to appear in person on November
14, 2017, at 10:30 a.m., and to show cause why default should
not be entered against him and his Complaint stricken under
Federal Rule of Civil Procedure 16(f). ECF No. 42. Defense
counsel appeared by telephone at the appointed date and time,
but plaintiff did not. There has not been any activity in
this case by plaintiff except through his former counsel.
Rule of Civil Procedure 37(b) authorizes the Court to strike
a party's pleading or dismiss the action as sanction for
failure to provide or permit discovery. See Fed. R.
Civ. P. 37(b)(2)(A). Rule 16(f) empowers the Court to impose
the same sanctions against a party who fails to appear at a
pretrial conference or to comply with a pretrial order.
Fed.R.Civ.P. 16(f)(1); see also Ramada Worldwide, Inc. v.
Veer Enters., LLC, Civ. No. 10-6480 (ES), 2013 WL
1314451, at*2 (D.NJ.Mar.28, 2013).
Poults v. State Farm Fire and Casualty Co., 1A1 F.2d
863 (3d Cir. 1984), the Third Circuit identified six factors
that courts should balance when deciding whether to sanction
a party by curtailing the right to proceed with or defend
against a claim. Id. at 868. The Poulis
(1) [t]he extent of the party's personal responsibility;
(2) the prejudice to the adversary caused by the failure to
meet scheduling orders and respond to discovery; (3) a
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 or defense.
Id. (emphasis omitted); see also Hogan v.
Raymond Corp., 536 Fed.Appx. 207, 212 & n.5 (3d Cir.
2013); Knoll v. City of Allentown, 707 F.3d 406, 409
n.2 (3d Cir. 2013). No. single Poulis factor is
determinative, and dismissal may be appropriate even if some
of the factors are not met. See Hogan, 536 Fed.Appx.
at 212; Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d
Cir. 1992). If a Court finds dismissal appropriate under
Poulis, it may dismiss an action sua
sponte, pursuant to its inherent powers and Fed.R.Civ.P.
16(f). See Fed. R. Civ. P. 16(f)(1) ("On motion
or on its own, the court may issue any just orders,
including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if
a party . .. fails to appear at a .. . pretrial conference;
[or] .. . fails to obey a scheduling or other pretrial
order."); Mindek, 964 F.2d at 1372-75;
Foreman v. Previziz, Civ. No. 13-5807 (SDW), 2015 WL
1931453, at *l-2 (D.N.J. Apr. 27, 2015).
Plaintiffs Personal Responsibility.
case, it appears that plaintiff alone is responsible for his
failure to comply with this Court's Orders to enter an
appearance, either by counsel or pro se, and to
appear for an Order to Show Cause hearing. Plaintiffs failure
to comply demonstrates a willful decision to disregard the
Prejudice to Defendants.
refusal to participate in this case and to comply with this
Court's Orders has prejudiced defendants' ability to
defend themselves in this action. The Third Circuit holds
that prejudice in this context does not mean
"irremediable harm, " but the "burden imposed
by impeding a party's ability to prepare effectively a
full and complete trial strategy is sufficiently
prejudicial." Ware v. Rodale Press, Inc., 322
F.3d 218, 222 (3d Cir. 2003). Here, with plaintiffs failure
to participate and communicate with this Court and opposing
counsel, defendants are prevented from defending the case