United States District Court, D. New Jersey
REPORT & RECOMMENDATION
LEDA DUNN WETTRE, UNITED STATES MAGISTRATE JUDGE
matter having been opened by the Court sua sponte
based on plaintiff Lorenzo Analco Arellano's failure to
comply with this Court's Order to appear in person for a
settlement conference, and plaintiff having failed to comply
with the Court's September 11, 2019 Order to Show Cause
(ECF No. 16), it is respectfully recommended that
plaintiff's complaint be stricken and that this action be
dismissed without prejudice.
commenced this action through counsel on January 21, 2019. In
his collective action complaint, plaintiff alleges that he
worked as a non-exempt employee at defendant La Roca
Supermarket in Union City, N.J. from July 2008 through
February 2018, and that defendants failed to pay minimum wage
and overtime in violation of the Fair Labor Standards Act and
the New Jersey Wage and Hour Law. (ECF No. 1). Counsel for
the parties appeared for an initial scheduling conference on
April 3, 2019, and the Court entered a pretrial scheduling
order setting discovery deadlines. (ECF No. 11). In a June 6,
2019 telephonic status conference, defendants took the
position that plaintiff had received and cashed a paycheck
that rendered his claims moot. Plaintiffs counsel requested,
and was granted, time to investigate this assertion. The
Court conducted another telephone conference with counsel on
June 25, 2019 to follow up with the parties about whether the
case had settled or been rendered moot. However, plaintiffs
counsel informed the Court that he had been unable to reach
or communicate with his client and could not confirm the
status of plaintiff s claims. The Court then entered an Order
scheduling an in-person settlement conference for September
11, 2019. (ECF No. 14). The Court's Order specifically
provided that "[c]lients with full settlement authority
should be physically present." (Id.).
did not appear at the settlement conference as directed.
Accordingly, the Court issued an Order directing plaintiff to
appear in person on October 4, 2019 to show cause why the
Court should not recommend dismissal of this action. (ECF No.
16). Plaintiff s counsel appeared in person at the show cause
hearing. He confirmed that he attempted to communicate the
Court's instruction to appear to plaintiff. However,
plaintiff did not appear at the show cause hearing, nor did
he contact the Court or his counsel to request an adjournment
or explain his absence.
Federal Rules of Civil Procedure authorize the Court to
impose sanctions, including dismissal, if a party "fails
to failure to appear at a scheduling or pretrial
conference," "fails to obey a scheduling or other
pretrial order," or fails to prosecute a case.
Fed.R.Civ.P. 16(f)(1)(A), 16(f)(1)(C); see also Fed.
R. Civ. P. 37(b)(2), 41(b).
Poulis v. State Farm Fire and Casualty Company, the
Third Circuit identified six factors that courts should
balance when deciding whether to sanction a party by
curtailing the right to proceed with or defend against a
claim. 747 F.2d 863, 868 (3d Cir. 1984). The Poulis
(1) [t]he extent of the party's personal responsibility;
(2) the prejudice to the adversary 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 the attorney was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which
entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.
Id. (emphasis omitted); see also Hogan v.
Raymond Corp., 536 Fed.Appx. 207, 212 & n.5 (3d Cir.
2013) (per curiam); Knoll v. City of Allentown, 707
F.3d 406, 409 n.2 (3d Cir. 2013). No single Poulis
factor is determinative, and dismissal may be appropriate
even if some of die factors are not met. See Hogan,
536 Fed.Appx. at 212; Mindek v. Rigatti, 964 F.2d
1369, 1373 (3d Cir. 1992). "If a Court finds dismissal
appropriate under Poulis, it may dismiss an action
sua sponte, pursuant to its inherent powers and
Federal Rule of Civil Procedure 41(b)." C-Pod
Inmates of Middlesex Cty., Adult Corr. Or. v.
Middlesex Cty., Civ. A. No. 15-7920, 2018 WL 4006809, at
*4 (D.N.J. July 31, 2018) (citing Iseley v. Bitner,
216 Fed.Appx. 252, 254-55 (3d Cir. 2007)). The Court
concludes that the Poidis factors, addressed below,
weigh in favor of dismissal.
Plaintiffs Personal Responsibility.
case, it appears that plaintiff alone is responsible for his
failure to comply with this Court's Orders to appear for
the settlement conference and show cause hearing. Counsel
confirmed that he notified plaintiff of these Court
appearances but plaintiff did not respond. Plaintiffs failure
to comply demonstrates a willful decision to disregard the
Prejudice to Defendants.
refusal to participate in this case and to comply with this
Court's Orders has prejudiced defendants by forcing them
to continue defending a matter that has potentially already
been resolved against an absentee ...