United States District Court, D. New Jersey
REPORT & RECOMMENDATION
Michael A. Hammer United States Magistrate Judge
MATTER comes before the Court on this Court's
February 14, 2019 Order to Show Cause directing Claimant,
Matthew Shane Robinson, to show cause in writing why his
claim should not be dismissed pursuant to Federal Rules of
Civil Procedure 16(f) and 37. D.E. 24. Claimant failed to
respond in writing or otherwise to the February 14, 2019
Order to Show Cause. Pursuant to Federal Rule of Civil
Procedure 78 and Local Civil Rule 78.1, the Undersigned has
considered this matter on the papers. For the reasons below,
the Court respectfully recommends that the District Court
dismiss Claimant's claim with prejudice.
a forfeiture action brought by the United States of America
(“the Government”) to forfeit and condemn United
States currency in the amount of $115, 032.50, which the
United States Drug Enforcement Administration seized from
Claimant on October 16, 2015. Complaint, March 15, 2016, D.E.
1. The Government claims that the currency is subject to
forfeiture because it constitutes money and/or proceeds
derived from a transaction involving a controlled substance
in violation of the Controlled Substances Act, 21 U.S.C.
§ 801 et seq. Id.
March 15, 2016, the Government filed the instant Complaint,
as well as a Warrant for Arrest in Rem for the subject
currency. D.E. 1 & 2. On March 18, 2016, the Government
filed a Notice of Complaint for Forfeiture. D.E. 3. Claimant
filed a Verified Forfeiture Claim and Statement of Interest
on April 21, 2016, contending that he is the rightful owner
of the subject currency, and requesting its return. D.E. 4.
Court entered a Scheduling Order in this matter on October
16, 2017, wherein Claimant was to cure his deficient
discovery responses by January 31, 2018 and was to serve his
discovery demands by November 21, 2017, to be responded to by
the Government by January 31, 2018. Pretrial Scheduling
Order, Oct. 16, 2017, D.E. 13. The Court also scheduled a
telephone status conference for March 5, 2018. Id.
The Court was notified on January 31, 2018, that
Claimant's attorney had passed away on December 19, 2017.
Letter, Jan. 31, 2018, D.E. 14. Claimant did not appear for
the March 5, 2018 telephone status conference. D.E. 15. The
Court issued an Order on March 6, 2018, directing Claimant to
notify the Court in writing by March 26, 2018 whether he
intended to proceed pro se or obtain new counsel. Order,
March 6, 2018, D.E. 15. The Court attempted to mail that
notice to the Claimant three times via both certified and
regular mail. D.E. 16, 17, 18. All were returned as
undeliverable. Id. The Government informed the Court
on May 31, 2018 that Claimant had not attempted to contact it
at all regarding this matter. Letter, May 31, 2018, D.E. 19.
Consequently, the Court entered an Order to Show Cause on
June 5, 2018, why default should not be entered against him.
Order to Show Cause, June 5, 2018, D.E. 20. The Government
filed proof of service of the Order to Show Cause on Claimant
on June 6, 2018. Certification of Service, June 6, 2018, D.E.
21. The Court's mailing of the Order to Show Cause via
certified mail was returned successfully mailed on June 12,
2018. D.E. 22. The Court issued a subsequent Order to Show
Cause on February 14, 2019 directing Claimant to show cause
in writing why his claim should not be dismissed pursuant to
Federal Rules of Civil Procedure 16(f) and 37. Order to Show
Cause, Feb. 14, 2019, D.E. 24. Despite the Orders to Show
Cause having been served on Claimant, Matthew Shane Robinson
has failed to respond to the Court's Orders, engage in
discovery or contact the Court or the Government in anyway
since his attorney passed away in December 2017.
Dismissal as Sanction
Federal Rule 16(f)(1), 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; (B)
is substantially unprepared to participate-or does not
participate in good faith-in the conference; or (C) fails to
obey a scheduling or other pretrial order.” It is well
settled that in rem claimants are parties to the
action. See U.S. v. United States Currency in the Amount
of Six Hundred Thousand Three Hundred Forty One Dollars and
No. Cents ($600, 341.00), 240 F.R.D. 59, 63 (E.D.N.Y.
37(b)(2)(A) allows a court to strike pleadings or
“dismiss the action or proceeding in whole or in
part[.]” Indeed, several courts have dismissed a
claimant's claim for failure to participate in discovery
or comply with a court order. See United States v. One
Million Three Hundred Twenty-Two Thousand Two Hundred
Forty-Two Dollars and Fifty Cents ($1, 322, 242.58) 938
F.2d 433 (3d Cir. 1991) (holding that the District Court did
not abuse its discretion by dismissing claims to money seized
by the Federal Government as a sanction for noncompliance
with discovery); see also United States v. United States
Currency in the Amount of Six Hundred Thousand Three Hundred
Forty One Dollars and No. Cents ($600, 341.00), 240
F.D.R. 59 (E.D.N.Y 2007) (holding that parties in in
rem civil forfeiture actions are parties to the action
and subject to sanctions for discovery violations under Rule
37(b)(2)(C)); United States v. Proceeds of Drug
Trafficking Transferred to Certain Foreign Bank
Accounts, 252 F.R.D. 60, 62 (D.D.C. 2008) (holding that
Rule 37 allows the court to apply sanctions to any party in
determine whether dismissal is appropriate, the Court must
balance the six factors set out by the Third Circuit in
Poulis v. State Farm Fire & Cas. Co., 747 F.2d
863 (3d Cir. 1984). Specifically, the Court must consider:
(1) the extent of the party's personal responsibility,
(2) prejudice to the adversary, (3) history of dilatoriness,
(4) willful or bad faith conduct of an attorney, (5)
alternative sanctions, and (6) meritoriousness of the claim
or defense. Poulis, 747 F.2d at 868; Emerson v.
Thiel College, 296 F.3d 184, 190 (3d Cir. 2002)
(applying Poulis factors). No. single
Poulis factor is dispositive, and dismissal may be
appropriate even if some of the factors are not met.
Hovey v. LaFarge North America Inc., Civil Action
No. 07-2193, 2008 WL 305701, at *2 (D.N.J. Jan. 29, 2008)
(citing Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d
Cir. 1992)). See also Rosado v. Adams, Civil Action
No. 07-1914, 2009 WL 1181217, at *1-3 (M.D. Pa. April 30,
2009) (applying Poulis analysis to dismissal for
failure to prosecute under Fed.R.Civ.P. 41(b)); Vrlaku v.
Citibank, Civil Action No. 05-1720, 2005 WL 2338852, at
*2-3 (D.N.J. Sept. 23, 2005) (same, and noting that
“[a] Court may raise a motion to dismiss an action
under Rule 41 sua sponte under its inherent case management
powers.”); see also ODTA Systems LLC v. Daewood
Electronics America, 483 F.Supp.2d 400, 404 (D.N.J.
2007) (“Failure to prosecute does not require that a
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.”) (citations omitted). While not all these
factors necessarily apply in every case, the Court is
obligated to consider any factors that do apply.
The extent of the party's personal
Claimant missed a scheduled telephone conference and he did
not provide any explanation as to why. Nor did he notify
Plaintiff or request an adjournment from the Court.
Furthermore, Claimant failed to respond to this Court's
March 6, 2018 Order which directed Claimant to inform the
Court whether he would be proceeding pro se or obtaining a
new attorney. Claimant further failed to comply with either
the June 5, 2018 or February 14, 2019 Orders to Show Cause,
directing him to show cause in writing why this matter should
not be dismissed. Claimant also did not update his mailing
address with the Court. Claimant's failure to take basic
action to pursue his claim is his own doing, and, because of
his inaction, this case has been brought to a virtual
standstill with no indication that it will proceed.
Accordingly, the Court concludes that Claimant does not
intend to further litigate his claim and has willfully chosen
to abandon the suit.
first Poulis factor, therefore, weighs in ...