United States District Court, D. New Jersey
FREDA L. WOLFSON UNITED STATES DISTRICT JUDGE.
MATTER having been opened to the Court based upon
the July 27, 2018 Report and Recommendation of United States
Magistrate Judge Douglas E. Arpert (the “Magistrate
Judge”), which recommended that all claims of Heinz
Buechi and Mahboubeh Buechi (collectively, the “Buechi
Plaintiffs”) be dismissed with prejudice, pursuant to
Federal Rule of Civil Procedure 41(b), for failure to
prosecute; it appearing that, pursuant to Federal Rule of
Civil Procedure 72(b)(2), parties “may serve and file
specific written objections to the proposed findings and
recommendations” of a magistrate judge within “14
days after being served with a copy of the recommended
disposition, ” Fed.R.Civ.P. 72(b)(2); it appearing
that, where a party timely objects to the report and
recommendation of the magistrate judge, the district court
must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made, ” 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3);
it appearing that, where “a party does not object
timely to a magistrate judge's report and recommendation,
the party may lose its right to de novo review by
the district court, ” Equal Employment Opportunity
Comm'n v. City of Long Branch, No. 16-2514, 2017 WL
3273407, at *4 (3d Cir. Aug. 2, 2017); see Nara v.
Frank, 488 F.3d 187, 194 (3d Cir. 2007); it appearing
further, however, that, because the “authority and the
responsibility to make an informed, final
determination” remains with the district court judge,
Mathews v. Weber, 423 U.S. 261, 271 (1976), the
Third Circuit has directed that, even where a party does not
timely object to a report and recommendation, the district
court must “afford some level of review to dispositive
legal issues raised by the report, ” Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987); it appearing
that, the Third Circuit has “described this level of
review as ‘reasoned consideration, '”
Equal Employment Opportunity Comm'n, 2017 WL
3273407 at * 4 (quoting Henderson, 812 F.2d at 878);
it appearing that, in the instant action, Plaintiff has
failed to timely object to the Magistrate Judge's Report
and Recommendation, and therefore, the Court applies the
“reasoned consideration” standard of review to
the Magistrate Judge's Report and Recommendation;
consistent with that standard, the Court makes the following
1. On November 15, 2017, following the removal of this action
from state court to federal district court, the Buechi
Plaintiffs, along with various other named plaintiffs
(collectively, “Plaintiffs”), filed an Amended
Complaint asserting various tort claims against Defendant
International Business Machines Corporation
(“Defendant” or “IBM”). ECF No. 19.
2. Defendant filed an Answer on December 18, 2017. ECF No.
3. On August 11, 2017, Defendant served its First Request for
Production of Documents on the Buechi Plaintiffs.
4. On May 31, 2018, the Magistrate Judge issued a Pretrial
Order, in which he indicated that, as of May 31, 2018, the
Buechi Plaintiffs had failed to produce documents in response
to Defendant's discovery requests. ECF No. 25 at ¶
2. In the Pretrial Order, the Magistrate Judge ordered the
Buechi Plaintiffs to respond to Defendant's outstanding
discovery requests by June 15, 2018, and indicated that
failure to comply with the Order “may result in the
imposition of sanctions including the dismissal of [the
Buechi Plaintiffs'] claims.” Id.
5. On June 20, 2018, Defendant submitted a letter to the
Magistrate Judge, indicating that the Buechi Plaintiffs had
failed to submit discovery responses by the June 15, 2018
court-imposed deadline. ECF No. 26. In the letter, Defendant
argued that, as a result of the Buechi Plaintiffs'
failure to produce discovery responses, the Magistrate Judge
should recommend to this Court that the Buechi
Plaintiffs' claims be dismissed with prejudice. ECF No.
6. On June 25, 2018, the Magistrate Judge entered an Order
indicating that any opposition to Defendant's letter
request for dismissal be filed by July 6, 2018. ECF No. 27.
7. On July 27, 2018, the Magistrate Judge issued a Report and
Recommendation, noting that the Buechi Plaintiffs had failed
to respond to Defendant's discovery requests as of that
date, and failed to file opposition to Defendant's letter
request to dismiss this case. ECF No. 29. In the Report and
Recommendation, the Magistrate Judge recommended that, as a
result of the Buechi Plaintiffs' non-compliance, I
dismiss their claims with prejudice. Id.
8. Having given “reasonable consideration” to the
Magistrate Judge's Report and Recommendation, the Court
finds that adoption of the same is warranted.
a. Pursuant to Federal Rule of Civil Procedure 41(b), a
district court may dismiss a complaint for failure to
prosecute, see Iseley v. Bitner, 216 Fed.Appx. 252,
254-55 (3d Cir. 2007), but courts must balance six factors to
determine whether dismissal with prejudice is appropriate:
“(1) the 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.” Poulis v. State Farm Fire & Cas.
Co., 474 F.2d 863, 868 (3d Cir. 1984) (emphasis in
original). Here, the first factor weighs in favor of
dismissal, since the Buechi Plaintiffs are personally
responsible for their failure to produce responsive documents
in discovery, to respond to Defendant's letter request to
dismiss their claims, and to otherwise aid in the prosecution
of this case. The second factor also weighs in favor of
dismissal, because the Buechi Plaintiffs' actions have
prejudiced the other parties in this case, who, as a result
of his delay, have been deprived of the ability to
effectively prepare a defense in this case. See Ware v.
Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)
(finding that, under Poulis, “the burden
imposed by impeding a party's ability to prepare
effectively a full and complete trial strategy is
sufficiently prejudicial.”). Additionally, the third
and fourth factors weigh in favor of dismissal, since the
Buechi Plaintiffs have demonstrated a history of continued
unresponsiveness, including their failure to respond to
Defendant's discovery requests despite the Magistrate
Judge's Order warning that non-compliance could result in
dismissal. See Muhammad v. Court of Common Pleas of
Allegheny Cty., Pa., 532 Fed.Appx. 106, 108 (3d Cir.
2013) (finding that the third and fourth factors weighed
against the plaintiff, where the plaintiff
“consistently and willfully refused to participate in
discovery, . . . comply with the District Court's
numerous discovery-related orders, . . . or otherwise move
his case forward.”). Moreover, the fifth factor also
weighs in favor of dismissal, because the Buechi
Plaintiffs' history of unresponsiveness, including their
failure to respond to court orders, despite the Magistrate
Judge's warnings that their failure to prosecute may
result in dismissal with prejudice, suggests that alternative
sanctions would not be effective. Finally, even if the claims
in the Complaint have arguable merit, the final factor,
standing alone, cannot tip the scale in favor of dismissal.
See Ware, 322 F.3d at 222; Mindek v.
Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) (explaining
that “not all of the Poulis factors need be
satisfied in order to dismiss a complaint.”).
Accordingly, upon reasonable consideration of the Report and
Recommendation, the Court finds the Magistrate Judge's
reasoning appropriate, and that the Poulis factors
weigh in favor of dismissal.
the Court having reviewed the Magistrate Judge's Report
and Recommendation, for the reasons set forth herein, and for
good cause shown, IT IS on this
20th day of August, 2018, ORDERED
that the Magistrate Judge's Report and Recommendation,
dated July 27, 2018, is hereby ADOPTED; and
it is further
that the Buechi Plaintiffs' claims are hereby