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Ocansey v. Ltd Financial Services

United States District Court, D. New Jersey

May 7, 2018

FRANCIS OCANSEY, Plaintiff,
v.
LTD FINANCIAL SERVICES, Defendant.

          REPORT & RECOMMENDATION

          LEDA DUNN WETTRE, UNITED STATES MAGISTRATE JUDGE.

         This matter, having been opened by the Court sua sponte based on plaintiff pro se Francis Ocansey's failure to comply with this Court's Order to appear for an initial scheduling conference pursuant to Federal Rule of Civil Procedure 16, and plaintiff having failed to appear at the show-cause hearing ordered by the Court on March 19, 2018, (ECF No. 13), it is respectfully recommended that plaintiffs Complaint be stricken and that this action be dismissed without prejudice.

         BACKGROUND

         Plaintiff pro se commenced this action by filing a Complaint in this Court on June 21, 2018. ECF No. 1. Plaintiff alleged that defendant LTD Financial Services violated 15 U.S.C. § 1681b(f) by obtaining plaintiffs consumer report without a permissible purpose. See Id. Defendant filed an answer to the Complaint on January 25, 2018. ECF No. 10. The Court scheduled an in-person initial scheduling conference pursuant to Federal Rule of Civil Procedure 16 for March 15, 2018. ECF No. 11. The Letter Order scheduling the Rule 16 conference instructed the parties to meet and confer to prepare a Joint Discovery Plan ("JDP") and submit the plan to the Court three business days in advance of the conference. Id.

         Plaintiff did not appear for the Rule 16 conference on March 15, 2018 or respond to defense counsel's request for input into the JDP the Court required to be submitted in advance of the conference. See ECF Nos. 12, 12-1. Accordingly, the Court issued an Order directing plaintiff to appear in person on April 30, 2018 to show cause why the Court should not recommend dismissal of this action for failure to prosecute. ECF No. 13. The Order also instructed plaintiff file a letter by April 16, 2018 confirming that he would appear on April 30, 2018 and outlining why the action should not be dismissed. Id. The Clerk's Office sent a copy of that Order via certified mail to plaintiffs last known address in addition to the electronic notice that was sent to plaintiffs email address. ECF Nos. 13, 14.

         Plaintiff did not submit a position statement or confirm attendance at the hearing by April 16, 2018, as ordered. Nor did plaintiff appear on April 30, 2018 at the show-cause hearing. Accordingly, for the reasons below, the Court recommends dismissal of the Complaint without prejudice.

         ANALYSIS

         The Federal Rules of Civil Procedure authorize the Court to impose sanctions for failure to respond to the Court's Orders, appear for a scheduling or pretrial conference, and to prosecute a case. In all instances, dismissal may be an appropriate penalty. See Fed. R. Civ. P. 16(f), 37(b)(2)(A), 41(b).

         In Poulis v. State Farm Fire and Casualty Co., 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. 747 F.2d 863, 868 (3d Cir. 1984). The Poitlis factors are:

(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 o/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 Rule 41(b). Iseley v. Bitner, 216 Fed App'x 252, 254-55 (3d Cir. 2007). The Court concludes that the Poulis factors, addressed below, weigh in favor of dismissal.

         1. Plaintiff's Personal Responsibility.

         In this case, it appears that plaintiff alone is responsible for his failure to comply with this Court's Orders to prepare a JDP, appear for the Rule 16 conference, submit a position statement by April 16, 2018, or appear for the show-cause hearing. The relevant Orders were served to the email address and mailing address that plaintiff provided to the Court. In addition, defense counsel reported that he sent plaintiff an email regarding preparation of a JDP, but plaintiff did not respond. Plaintiffs failure to comply demonstrates a willful decision to disregard the Court's Orders.

         2. Prejudice ...


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