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 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.
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.
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.
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.
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),
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
(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.
Plaintiff's Personal Responsibility.
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.