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Rios v. Bergey's Inc.

United States District Court, D. New Jersey

March 21, 2019

SAMUEL RIOS, Plaintiff,
v.
BERGEY'S INC., Defendant.

          ORDER ADOPTING REPORT & RECOMMENDATION

          JEPH H.RODRIGUEZ UNITED STATES DISTRICT COURT.

         This matter came before the Court upon the Report and Recommendation of the Honorable Joel Schneider, United States Magistrate Judge [Docket No. 21], entered March 4, 2019, which recommended that pro se Plaintiffs Complaint be dismissed pursuant to Fed.R.Civ.P. 16(f) and 37(b) for failure to comply with the Court's scheduling and discovery Orders; and

         The parties were advised on that date that any objections to this Report and Recommendation were to be served and filed with the Clerk of Court within fourteen (14) days thereof, pursuant to Fed.R.Civ.P. 72(b) and L. Civ. R. 72.1(a)(2); and

         No objections to the Report and Recommendation have been received, and the time for objections has expired; and

         The Court has independently reviewed the record and the Report and Recommendation and hereby adopts it as the Opinion of this Court;

         IT IS ORDERED this 20th day of March, 2019 that this Court hereby ADOPTS the Report and Recommendation of the Honorable Joel Schneider, U.S. Magistrate Judge entered March 4, 2019 [Docket No. 21]; and

         IT IS FURTHER ORDERED that pro se Plaintiffs Complaint is hereby DISMISSED pursuant to Fed.R.Civ.P. 16(f) and 37(b) for failure to comply with the Court's scheduling and discovery Orders.

         REPORT AND RECOMMENDATION REGARDING DISMISSAL OF PLAINTIFF'S COMPLAINT

         This matter has been raised by defendant Bergey's Inc. because of Prose plaintiff's failure to comply with this Court's scheduling and discovery Orders. For the reasons to be discussed, it is respectfully recommended that plaintiff's complaint be dismissed pursuant to Fed.R.Civ.P. 16(f) and 37(b). This Report and Recommendation is issued pursuant to 28 U.S.C. § 636(b)(1). The Court makes the following findings in support of this Recommendation, BACKGROUND

         Plaintiff Samuel Rios filed this action on March 9, 2018 in the Superior Court of New Jersey, Gloucester County, Law Division against Bergey's Inc. d/b/a Bergey's Commercial Tire Centers ("defendant" or "Bergey's") and John Does 1-10 alleging claims pursuant to the New Jersey Law Against Discrimination ("NJLAD"). More specifically, plaintiff alleged claims of discrimination, harassment, and retaliation, contending that Bergey's pretextually terminated plaintiff under false accusations of theft. See Compl. [Doc. No. 1]. On April 10, 2018, Bergey's removed the case to federal court and an initial conference was set for May 9, 2018. In its answer [Doc. No. 6], Bergey's denied all material allegations of plaintiff's complaint, raised affirmative defenses, and asserted it had a photo of plaintiff in the act of stealing tires to refute plaintiff's claims of pretext. Plaintiff was initially represented in this action by Deborah L. Mains, Esq., Kevin M. Costello, Esq., and Marisa Jean Hermanovich, Esq. of the Law Offices of Costello & Mains, P.C

         Plaintiff's counsel appeared at the initial scheduling conference held on May 9, 2018. In a letter dated September 27, 2018, and pursuant to the Court's May 9, 2018 Scheduling Order [Doc. No. 9], Bergey's informed the Court of an ongoing discovery dispute with plaintiff. Defendant stated the parties had initially agreed to allow for "additional time to respond to their respective discovery requests" and advised the Court that defendant's responses were provided to plaintiff on August 27, 2018. Defendant further advised the Court that plaintiff's responses were still outstanding and his counsel had indicated that it could not provide defendant with a time frame for plaintiff responding.

         On October 1, 2018, the Court Ordered plaintiff to respond to Bergey's written discovery by October 8, 2018. See Doc. No. 10. The next day, plaintiff's counsel filed a motion to withdraw as counsel [Doc. No. 11] stating plaintiff's "fail[ure] to cooperate in the prosecution of his litigation" as the basis for her motion. See Cert, of Deborah L. Mains ¶ 5 [Doc. No. 11-1]. Counsel contended her "firm [had] made multiple efforts to secure [p]laintiff's cooperation in the provision of responses to interrogatories and document requests served upon" plaintiff by defendant. Id. ¶ 6. Counsel further contended that, despite her best efforts, plaintiff had "failed to appear for three separate appointments in June 2018." Id. ¶ 7. After missing his third appointment, counsel stated plaintiff "ceased all communication," did not respond to emails, phone calls, or other attempts at correspondence, and certified mail sent to plaintiff was returned to counsel as "unclaimed." Id. ¶¶ 8-10. Counsel then advised the Court that plaintiff had called her office on October 2, 2018, which was "the first communication [counsel] [] had with [plaintiff] since June 28, 2018." Id. ¶ 13. Nevertheless, "based upon the tenor, tone [, ] and substance of the communication," counsel stated her attorney-client relationship with plaintiff was "irretrievably damaged," rendering her decision to withdraw as plaintiff's counsel unchanged. Id. ¶¶ 15-16.

         On October 3, 2018, the Court Ordered that oral argument on the motion to withdraw was scheduled for November 5, 2018. See Letter Order [Doc. No. 12]. The Court directed plaintiff's counsel to serve her motion papers and the Court's Order on plaintiff and Ordered plaintiff "to be present at the scheduled argument." Id. Plaintiff did not appear at oral argument. See Order, Nov. 5, 2018 [Doc. No. 15].

         The Court ruled on plaintiff's counsel's motion at the close of argument and entered an Order granting counsel's request to withdraw. See id. Plaintiff was Ordered to secure new counsel and arrange for them to enter an appearance on his behalf by December 7, 2018, or plaintiff would be deemed to be proceeding pro se. See id. at 3. In addition, the Court Ordered that an in-person status conference was scheduled for December 18, 2018, directing that plaintiff or his attorney shall appear in-person. Id. The Court advised plaintiff his "failure to appear may result in the imposition of sanctions." Id. No. new counsel entered an appearance on plaintiff's behalf prior to the Court-Ordered December 7, 2018 deadline, nor by the ...


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