United States District Court, D. New Jersey
NEDRAH C. XIMUHAMMAD, Plaintiff,
PORT AUTHORITY OF NY & N.J. POLICE DEPARTMENT, et al., Defendants.
REPORT AND RECOMMENDATION
MICHAEL A. HAMMER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on this Court's March 6,
2019 Order to Show Cause why Plaintiff's Complaint should
not be dismissed for failure to prosecute pursuant to Federal
Rule of Civil Procedure 41. D.E. 30. Plaintiff failed to file
a response to the Order to Show Cause by March 29, 2019.
Pursuant to Federal Rule of Civil Procedure 78, the
Undersigned did not hear oral argument and has considered
this matter on the papers. For the reasons set forth below,
the Undersigned respectfully recommends that the District
Court dismiss Plaintiff's Complaint with prejudice.
December 26, 2017, Plaintiff submitted a Complaint against
Defendants Port Authority of NY & N.J. Police Department
(“PAPD”) and the Union Police Department
(UPD”), alleging a violation of her civil rights
stemming from an apparent arrest in or around October 2017.
Complaint, D.E. 1. On January 19, 2018, Plaintiff was granted
in forma pauperis status and her Complaint was
filed. Order, Jan. 19, 2018, D.E. 4. On April 27, 2018,
Defendant PAPD moved to dismiss Plaintiff's Complaint.
Motion to Dismiss, Apr. 27, 2018, D.E. 12. On May 18, 2018,
Defendant UPD also filed a motion to dismiss. Motion to
Dismiss, May 18, 2018, D.E. 14. On August 13, 2018, this
Court entered a Pretrial Scheduling Order that, inter
alia, set: (1) August 31, 2018 as the deadline to
exchange initial disclosures; (2) October 14, 2018 as the
deadline to serve interrogatories, requests to admit, and
requests for the production of documents; and (3) March 31,
2019 as the deadline to complete fact discovery. Pretrial
Scheduling Order, Aug. 13, 2018, D.E. 18. On November 30,
2018, the District Court granted Defendant PAPD's motion
to dismiss, but denied Defendant UPD's motion. Order,
Nov. 30, 2018, D.E. 19.
January 16, 2019, Defendant UPD informed the Court that
Plaintiff had failed to provide her initial disclosures,
serve any discovery requests, or respond to Defendant
UPD's discovery requests. Defendant UPD also represented
that Plaintiff had failed to confirm her availability for her
deposition, which Defendant UPD had scheduled for December
19, 2018. Letter, Jan. 16, 2019, D.E. 26. The Court entered
an Order on January 31, 2019. Order, Jan. 31, 2019, D.E. 27.
That Order required, inter alia, Plaintiff to cure her
discovery deficiencies by February 21, 2019. The Order also
required each party to submit, by March 21, 2019, a status
report setting forth any outstanding discovery. The Order
also warned Plaintiff that failure to comply would result in
the issuance of an Order to Show Cause as to why the matter
should not be dismissed for failure to prosecute it, pursuant
to Federal Rule of Civil Procedure 41. Defendant UPD served a
copy of the Order on Plaintiff on February 1, 2019.
Certification of Service, Feb. 1, 2019, D.E. 28.
did not comply with the Court's January 31st
Order. On February 28, 2019, Defendant UPD informed the Court
that Plaintiff had failed respond to Defendant's
discovery requests, or to serve her initial disclosures.
Letter, Feb. 28, 2019, D.E. 29. Moreover, Plaintiff did not
file a status report by March 21, 2019. Accordingly, on March
6, 2019, this Court entered an Order to Show Cause that
directed Plaintiff to show cause in writing, by March 29,
2019, why her claims should not be dismissed pursuant to
Fed.R.Civ.P. 41 for failure to prosecute this matter. Order
to Show Cause, March 6, 2019, D.E. 30.
did not respond to the Order to Show Cause. On April 9, 2019,
Defendant notified the Court that Plaintiff has still not
cured her discovery deficiencies. Letter, Apr. 9, 2019, D.E.
32. Accordingly, as of the date of this Report and
Recommendation, Plaintiff has failed to respond to any of the
Court's Orders, or to show cause as to why the matter
should not be dismissed, or to serve her initial disclosures
and responses to Defendant's discovery requests.
Standards for Dismiss under Federal Rule of Civil Procedure
of a plaintiff's complaint may be appropriate under
Federal Rule of Civil Procedure 41(b) “if the plaintiff
fails to prosecute or to comply with these rules or a court
order.” Fed.R.Civ.P. 41(b). In Poulis v. State Farm
Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the
United States Court of Appeals for the Third Circuit provided
the factors that this Court must weigh in determining whether
to dismiss a complaint pursuant to Fed.R.Civ.P. 41(b).
Specifically, the Court must consider six factors in deciding
whether the sanction of dismissal is appropriate: (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, 1903d 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., Civ. No. 07-2193, 2008 WL 305701, *2
(D.N.J. Jan. 29, 2008) (citing Mindek v. Rigatti,
964 F.2d 1369, 1373 (3d Cir. 1992)). See also Rosado v.
Adams, Civ. No. 07-1914, 2009 WL 1181217, *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, Civ. No. 05-1720, 2005 WL
2338852, *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 OPTA Systems, LLC v. Daewoo
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). Although not all
these factors necessarily apply in every case, the Court is
obligated to consider any factors that do apply.
Consideration of the Poulis Factors
The extent of the party's personal
instant case, Plaintiff has failed to respond to the Orders
of this Court requiring Plaintiff to explain her failure to
provide discovery responses. Nor has Plaintiff contacted the
Court to explain her failure to comply, or seek an extension
of time in which to do so. As a result, this case has been
brought to a virtual standstill with no indication that
Plaintiff intends to continue to prosecute her claims.
Accordingly, the Undersigned can conclude only that Plaintiff
does not intend to further litigate her claims and has
willfully chosen to abandon this suit.
Court recognizes that as a pro se litigant,
Plaintiff is not represented by counsel and may encounter
challenges that a represented party would not face. However,
at the same time, Plaintiff cannot contend that her failure
to prosecute this matter is the fault of counsel.
See, e.g., Clarke v. Nicholson, 153
Fed.Appx. 69, 73 (3d Cir. 2005), cert. denied, 548
U.S. 907 (2006) (“[U]nlike a situation in which a
dismissal is predicated upon an attorney's error, the
plaintiff here was pro se and directly responsible
for her actions and inaction in the litigation.”).
Moreover, the record reflects that Plaintiff's failure to
prosecute is not the result of her inability to comprehend or
address a highly complicated or technical legal issue; it is
the result of Plaintiff's failure to take basic action
necessary to prosecute her claims, such as responding to
discovery when ...