United States District Court, D. New Jersey, Camden Vicinage
REPORT AND RECOMMENDATION
M. WILLIAMS, UNITED STATES MAGISTRATE JUDGE.
before the Court is the Motion of Plaintiff, Luxottica Group,
S.P.A, seeking to strike the Answers filed by Defendants Bags
and Accessories [Doc. No. 11] and Shore Enuff [Doc. No. 18]
(together, “Defendants”) and to have default
entered against them. [Doc. No. 83]. Plaintiff asserts that
Defendants have failed to participate and defend against the
claims brought against them in this case. Specifically,
Plaintiff states that Defendants, without explanation, have
failed to attend court-ordered status conferences and that
they have refused to provide responses to Plaintiff's
discovery requests. Defendants have not responded to
Plaintiff's motion. Pursuant to Local Civil Rule 72.1,
the Honorable Robert B. Kugler, United States District Judge,
referred the motion to the Undersigned for report and
recommendation. The Court has considered the motion
pursuant to Federal Rule of Civil Procedure 78. For the
reasons set forth below, the Undersigned recommends that the
Court grant Plaintiff's motion to strike Defendants'
Answers and enter default.
February 23, 2016, Plaintiff filed the Complaint in this
matter against Bags and Accessories, Shore Enuff, and
numerous other named defendants. [Doc. No. 1]. Plaintiff
alleges that defendants have sold and continue to sell
counterfeit reproductions of Plaintiff's trademarked
products at establishments located in Atlantic City, New
Jersey. Id. Through a series of motions, Plaintiff
sought to strike the defendants' Answers, including those
of Bags and Accessories and Shore Enuff. [See
Pl.'s Mot. To Strike, Doc. No. 55; Pl.'s Supp. Mot.
to Strike, Doc. No. 67]. Plaintiff's motions rested on
the premise that the challenged Answers were impermissible
because the defendants, as business entities, were required
to be represented by counsel but had filed their Answers
pro se. On this basis, this Court granted in part
and denied in part Plaintiff's previous motions to strike
the defendants' unpermitted pleadings. [See
Order [Doc. No. 66], Apr. 7, 2017; Order [Doc. No. 68], Aug.
10, 2017]. While these Orders struck the Answers of most
defendants, the Answers filed by Bags and Accessories and
Shore Enuff were not stricken because Plaintiff failed to
establish the nature of these entities and thus had not
established that they could not proceed pro se.
[See Doc. No. 66 at 3 (noting, for example, that
some courts allow sole proprietorships to proceed pro
September 15, 2017, this Court entered an Order scheduling an
October 4, 2017 on-the-record telephone status conference
with Plaintiff's counsel and Defendants Bags and
Accessories and Shore Enuff. [Doc. No. 70]. Defendants failed
to appear for the conference. [See Doc. No. 74].
Subsequently, on November 1, 2017, this Court entered an
Order scheduling another on-the-record telephone status
conference for November 15, 2017. [Doc. No. 75].
Plaintiff's counsel and a representative of Bags and
Accessories appeared at the November 15, 2017 status
conference; however, Shore Enuff again failed to appear.
Following the status conference, the Court entered a
Scheduling Order which, inter alia, scheduled a
subsequent conference for March 7, 2018. [See
Scheduling Order [Doc. No. 78], Nov. 15, 2017]. The Order
also set a discovery end date of March 12, 2018. Id.
The Court held the next on-the-record status conference on
March 12, 2018,  which Shore Enuff also failed to attend.
[See Amended Scheduling Order [Doc. No. 85], Mar.
12, 2018]. As the Court had ordered, Plaintiff served notice
of the scheduled conferences upon Defendants. [See
Doc. Nos. 72, 73, 77, 79, 80, and 82].
asserts that it served written discovery requests upon
Defendants on September 19, 2017 and that Defendants have not
produced any responses or objections to Plaintiff's
requests. Decl. of Brent H. Blakely, Mar. 9, 2018
(“Blakely Decl.”), at ¶¶2-3 [Doc. No.
83-1]. As a result of Defendants' failure to comply with
the Court's orders and lack of response to
Plaintiff's discovery requests, Plaintiff filed the
instant motion seeking to strike Defendants' Answers
pursuant to Federal Rules of Civil Procedure 16 and 37 and to
have default entered pursuant to Rule 55.
to Rule 16 of the Federal Rules of Civil Procedure, the Court
“may issue any just orders, including those authorized
by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial
conference . . . or (C) fails to obey a scheduling or other
pretrial order.” Fed.R.Civ.P. 16(f)(1). In turn,
“[r]ule 37(b)(2) explicitly recognizes the court's
ability to strike a pleading, in whole or in part, for
failure to obey an order to provide or permit
discovery.” Linwood Trading Ltd v. Am. Metal
Recycling Servs., Civ. No. 14-5782, 2017 WL 2825934, at
*1 (D.N.J. June 1, 2017) (citing Fed.R.Civ.P. 37(b)(2))
(internal quotations omitted). Furthermore, Rule 55
“provides that entry of default is appropriate where .
. . a party has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise.” Ramada
Worldwide, Inc. v. VMN Foothills, LLC, Civ. No. 15-4078,
2017 WL 1157864, at *2 (D.N.J. Mar. 28, 2017) (citing
striking a pleading and entering default are sanctions
“which deprive a party of the right to proceed with or
defend against a claim, ” courts must weigh the six
factors enunciated by the Third Circuit in Poulis v.
State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.
1984) when considering such an order. Comdyne I, Inc. v.
Corbin, 908 F.2d 1142, 1148 (3d Cir. 1990). Under
Poulis, courts must consider:
(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, 747 F.2d at 868. No. single Poulis factor is
controlling and each factor does not have to be satisfied to
warrant dismissal. Ware v. Rodale Press, Inc., 322
F.3d 218, 221 (3d Cir. 2003); Mindek v. Rigatti, 964
F.2d 1369, 1373 (3d Cir. 1992); Curtis T. Bedwell &
Sons, Inc. v. Int'l Fid. Ins. Co., 843 F.2d 683, 696
(3d Cir. 1988). The decision whether to strike a pleading and
enter a default or dismissal is left to the district
court's broad discretion. Glob. Collections Corp. v.
Diamond Logistics, Inc., Civ. No. 13-184, 2014 WL
4211244, at *3 (D.N.J. Aug. 25, 2014) (citing Ware,
322 F.3d at 221-22); see also Mindek, 964 F.2d at