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Luxottica Group, S.P.A. v. Enuff

United States District Court, D. New Jersey, Camden Vicinage

September 21, 2018

LUXOTTICA GROUP S.P.A., Plaintiff,
v.
SHORE ENUFF, et al., Defendants.

          REPORT AND RECOMMENDATION

          KAREN M. WILLIAMS, UNITED STATES MAGISTRATE JUDGE.

         Presently 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.[1] 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.

         I. Background

         On 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 se)].

         On 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, [2] 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].[3]

         Plaintiff 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.

         II. Legal Standard

         Pursuant 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 Fed.R.Civ.P. 55(a)).

         Because 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 ...


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