United States District Court, D. New Jersey
Harnish, et al.
Widener University School of Law, et al.
REPORT & RECOMMENDATION
L. WALDOR United States Magistrate Judge
matter comes before the Court on Plaintiff Gregory
Emond's failure to abide by the Court's Order
directing Emond to show cause as to why this matter should
not be dismissed with prejudice for failure to prosecute.
(ECF No. 167). For the reasons set forth below, the Court
recommends that this matter be dismissed with prejudice
pursuant to Federal Rule of Civil Procedure 41(b).
matter was originally brought as a putative class action
against Defendant Widener University School of Law. On
February 2, 2018, the Court granted Stone &
Magnanini's motion to withdraw as Plaintiffs'
counsel. (ECF No. 160). As indicated in the Court's
Order, the individually named Plaintiffs communicated to the
Court, either on the record or through electronically filed
letters, that they did not wish to retain new counsel and
proceed with this case. (Id.).
December 14, 2018, the Court issued an Order directing the
parties “to submit a signed stipulation of dismissal,
in order to close this matter.” (ECF No. 161).
Plaintiffs John Harnish, Robert Klein, Christina Marinakis,
and Ayla O'Brien Kravitz submitted Stipulations of
Dismissal. (ECF Nos. 163, 164, 165, and 170). The Court
entered an order administratively terminating this action as
to Plaintiff Justin Schluth. (ECF No. 171).
Emond is the sole remaining pro se Plaintiff in this
matter. Emond stated on the record on December 19, 2017, that
he wishes to dismiss his individual case. However, Emond
failed to sign a Stipulation of Dismissal in compliance with
the Court's Order.
29, 2019, the Court issued an Order to Show Cause directing
Emond to appear and show cause on August 27, 2019, as to why
this matter should not be dismissed with prejudice pursuant
to Federal Rule of Civil Procedure 41(b). (ECF No. 167). The
Court directed counsel for Defendant to serve the Order upon
Emond at his last known address. Defendant certified that
Emond was served with the Order to Show Cause and a proposed
Stipulation of Dismissal via electronic mail and certified
mail at his last known address. (ECF No. 168). Emond failed
to appear for the August 27, 2019 show cause hearing.
District Court has the authority to dismiss a suit sua
sponte for failure to prosecute by virtue of its
inherent powers and pursuant to Federal Rule of Civil
Procedure 41(b).” Iseley v. Bitner, 216
Fed.Appx. 252, 254-55 (3d Cir. 2007) (citing Link v.
Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1962)). Normally, courts look to the six factors
articulated in Poulis v. State Farm Fire & Cas.
Co., 747 F.2d 863, 868 (3d Cir. 1990) to determine if
dismissal of a case is an appropriate remedy. “Where,
however, a plaintiff refuses to proceed with a case or
otherwise makes adjudication impossible, a balancing of the
Poulis factors is not necessary.”
Abulkhair v. New Century Fin. Servs., Inc., 467
Fed.Appx. 151, 153 (3d Cir. 2012) (citations omitted).
December 19, 2017, Emond indicated to the Court on the record
that he wished to dismiss his individual case. Since that
date, Emond has failed to comply with Court orders to
effectuate his desire to dismiss this action. On December 14,
2018, the Court ordered Emond to sign a Stipulation of
Dismissal, and he did not do so. The Court's subsequent
Order to Show Cause warned that this matter would be
“dismissed with prejudice” if Emond failed to
appear for the August 27, 2019 show cause hearing. Emond did
not appear for the hearing or contact the Court in any
contrast to situations in which a court must balance factors
because the plaintiff does not desire to abandon her case but
has encountered problems in going forward, ” Plaintiff
here has “willfully refused to prosecute
[his]…claims[.]” Spain v. Gallegos, 26
F.3d 439, 455 (3d Cir. 1994). It is apparent that Emond has
abandoned this action, and in fact stated to the Court that
he no longer wishes to pursue his claims. Therefore, the
Court may use its discretion to dismiss this action as to
Plaintiff Gregory Emond. Id.
foregoing reasons, the Court recommends that this action be
dismissed with prejudice as to Plaintiff Gregory Emond.
Pursuant to Local Rule 72.1(c)(2), parties shall have 14 days
from the date this report is filed with the Clerk of Court to
file and serve objections to this Report and Recommendation.