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 the failure of plaintiff Patricia Kane to comply
with this Court's June 7, 2018 order to enter an
appearance either by counsel or pro se (ECF No. 25);
and plaintiff having failed to appear at an in-person case
management conference on September 17, 2018; and for good
cause shown, it is respectfully recommended that
plaintiff's Complaint be stricken and that the case be
dismissed without prejudice.
commenced this action through counsel on July 12, 2017 in the
Superior Court of New Jersey, Law Division, Middlesex County.
(ECF No. 1-1). Plaintiff alleged that defendants Phoenix Care
Systems and Leonard Dziubla discriminated and retaliated
against her on the basis of sex by subjecting her to a
hostile work environment. (Id.) Defendants removed
the action to this Court on August 10, 2017. (ECF No. 1).
Although the case initially proceeded with the assistance of
counsel, on May 24, 2018, plaintiffs counsel moved to
withdraw from her representation of plaintiff on the basis of
plaintiffs continued failure to complete discovery and
respond to counsel's communications. (ECF No. 24). By
order dated June 7, 2018, the Court granted counsel's
motion to withdraw and directed plaintiff to either enter her
appearance pro se or have substitute counsel enter
an appearance on her behalf. (ECF No. 25). Withdrawing
counsel served a copy of the order on plaintiff via First
Class Mail and Federal Express. (ECF No. 26). Plaintiff
failed to enter an appearance or secure substitute counsel;
as a result, by order dated July 12, 2018, the Court deemed
her to be pro se. (ECF No. 27). The Court further
ordered that the parties appear for an in-person case
management conference on September 17, 2018 at 11:00 am.
(Id.) The Clerk's Office sent a copy of the July
12, 2018 order to plaintiff via certified mail, but it was
returned as unclaimed. (ECF No. 28). Defense counsel appeared
for the conference by telephone at the appointed date and
time, but plaintiff did not.
Rule of Civil Procedure 37(b) authorizes the Court to strike
a party's pleading or dismiss an 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.N.J. Mar. 28, 2013).
Poulis v. State Farm Fire and Casualty Co., 747 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 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 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 *1-2 (D.N.J. Apr. 27, 2015).
Plaintiffs Personal Responsibility.
case, it appears that plaintiff alone is responsible for her
failure to comply with this Court's Orders to appear for
the September 17, 2018 case management conference. Plaintiffs
failure to comply demonstrates a willful decision to
disregard the Court's Orders.
Prejudice to Defendants.
refusal to participate in this case and to comply with mis
Court's Orders has prejudiced defendants' ability to
defend themselves in this action, The Third Circuit has held
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 presenting their
defenses and concluding the action.