United States District Court, D. New Jersey
HONORABLE JEROME B. SIMANDLE DISTRICT JUDGE
matter is before the Court on the unopposed motion of
Defendant Ozitus International, Inc.'s
(“Defendant”) to dismiss the Complaint with
prejudice. [Docket Item 117.] For the reasons explained
below, the Court will grant Defendant's motion and
dismiss the Complaint with prejudice. The Court finds as
this action, Plaintiff CRA, Inc. (“Plaintiff”)
generally alleges that Defendant tortiously interfered with
Plaintiff's contracts with the County of Camden and with
contracts between Plaintiff and its employees, induced
Plaintiff's employees to breach their confidentiality and
non-compete agreements with Plaintiff, and wrongfully hired
Plaintiff's employees to provide the same services to the
County of Camden that Plaintiff had provided before Defendant
allegedly interfered with that business relationship. [Docket
Plaintiff is a Delaware corporation with its principal place
of business located in Virginia. [Docket Item 1 at ¶ 1.]
Pursuant to the common law and 28 U.S.C. § 1654, a
corporation may appear in the federal courts only through
licensed counsel and may not proceed pro se. See Rowland
v. California Men's Colony, Unit II Men's Advisory
Council, 506 U.S. 194, 201 (1993) (citing Osborn v.
President of Bank of United States, 9 Wheat. 738, 829
Robert C. Brady, Esq. of Gibbons, PC, signed the Complaint
and became counsel of record for Plaintiff. [Docket Item
1-1.] Thereafter, Mr. Michael S. O'Reilly, Esq. and Mr.
Christopher P. Fox, Esq. of O'Reilly Stoutenberg
Richards, LLP, applied for, and were granted, admission to
represent Plaintiff as pro hac vice counsel. [Docket Items 20
& 21]. On October 3, 2017, Mr. O'Reilly and Mr. Fox
withdrew their pro hac vice appearances in this matter.
[Docket Items 78 & 79.] Ms. Roya Vasseghi, Esq., and Ms.
Mariam Tadros, Esq. were subsequently admitted pro hac vice
to represent Plaintiff with Mr. Brady [Docket Item 105], but
filed an Emergency Motion to Withdraw as counsel on the basis
of “irreconcilable differences regarding the
representation.” [Docket Item 108.] That motion was
granted by the Honorable Ann Marie Donio on October 1, 2018.
[Docket Item 110.] That left Mr. Brady as the sole attorney
representing Plaintiff in this case.
December 12, 2018, Mr. Brady filed his own motion to withdraw
as attorney [Docket Item 113], wherein he certified that
“issues arose regarding the non-payment of Gibbons
P.C.'s invoices” and that, on October 31, 2018,
Plaintiff's new Chairman, General Bruce Lawlor (U.S.
Army, retired) sent Mr. Brady an email stating in part:
“[k]indly accept this as a notice for you to cease all
work on behalf of CRA, Inc.” [Docket Item 113-1 at
¶¶ 4, 7.] According to Mr. Brady, after receiving
that email, he had several conversations with General Lawlor
where the need for Plaintiff to retain new counsel was
discussed and General Lawlor “has advised that Jennifer
T. Langley, Esq. of Inman & Strickler P.L.C., a member of
the Virginia Bar, with offices located in Virginia Beach,
Virginia has been retained on behalf of CRA, Inc., ”
and “she plans to make an appearance, but first needs
to retain New Jersey Counsel.” [Id. at ¶
8.] As of the date of Mr. Brady's December 12, 2018
filing, “this has not happened.” [Id.]
January 10, 2019, the Honorable Ann Marie Donio entered an
Order allowing Mr. Brady to withdraw as counsel for
Plaintiff. [Docket Item 114.] Judge Donio ordered that
Plaintiff “shall obtain an attorney and have new
counsel enter an appearance on its behalf in this case
within thirty (30) days from the date of
entry of this Order.” [Id.] (emphasis in
original). Judge Donio further ordered that Gibbons, P.C.
shall serve a copy of this Order on Plaintiff and file proof
of such service on the docket. [Id.] Mr. Brady
subsequently filed proof of service on the docket, indicating
that the Order was delivered to General Lawler and signed for
by authorized agent Nicole Luster. [Docket Item 116.] The
deadline for Plaintiff to retain new counsel and for entry of
their appearance on the docket expired on February 9, 2019,
without any action being taken.
March 5, 2019, Defendant filed the instant motion to dismiss
with prejudice. [Docket Item 117.] While Defendant does not
cite a rule in support of its motion, the Court surmises that
Defendant seeks dismissal of the Complaint for
Plaintiff's failure to prosecute pursuant to Rule 41(b),
Fed. R. Civ. P.
Under Rule 41(b), which governs involuntary dismissal, a
defendant may move to dismiss an action or any claims against
it where the plaintiff either fails to prosecute the case or
fails to comply with court rules or orders. Fed.R.Civ.P.
41(b). The Rule expressly provides that a dismissal order
pursuant to 41(b) “operates as an adjudication on the
merits” unless the order states otherwise. Id.
“Failure to prosecute does not require that the party
take affirmative steps to delay the case. A failure to comply
with court orders, failure to respond to discovery or other
failure to act is sufficient to constitute lack of
prosecution.” Melvin v. Astbury, 2006 WL
1084225, at *2 (D.N.J. Apr. 21, 2006) (citing Adams v.
Trs. of the New Jersey Brewery Emps.' Pension Trust
Fund, 29 F.3d 863, 875 (3d Cir. 1994); Nat'l
Hockey League v. Metro. Hockey Club, 427 U.S. 639,
Third Circuit requires “that a district court must
consider [the Poulis factors] before dismissing an action for
failure to prosecute.” Clarke v. Nicholson,
153 Fed.Appx. 69, 72 (3d Cir. 2005) (citing Poulis v.
State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d
Cir. 1984)). The six Poulis factors include:
(1) the extent of the nonmoving party's personal
(2) the prejudice to the moving party 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 attorney was willful