United States District Court, D. New Jersey
REPORT & RECOMMENDATION
B. CLARK, III United States Magistrate Judge
matter has been opened by the Court sua sponte based
on Defendants' Cannavo Salvatore, SaratogaBlue Capital
Advisors, LLC, Blue Waters Equity and Development, LLC
(collectively “Defendants”) failure to comply
with Court orders and defend this case. For the reasons set
forth below, it is respectfully recommended that
Defendants' Answer be stricken and default entered
November 5, 2018, Defendants removed this action from the
Supreme Court of the State of New York, County of Queens
pursuant to 28 U.S.C. § 1441. Dkt. No. 1. Defendants
filed their Answer on the same date. Dkt. No. 3. On December
20, 2018, the Court granted Defendants' motion to change
venue from the United States District Court for the Eastern
District of New York to the United State District Court for
the District of New Jersey. Dkt. No. 16.
15, 2019, Defendants' attorneys, Rima Ayzen (“Ms.
Ayzen”) and Sarah Yean Khurana (“Ms.
Khurana”) of Kruzhkov Russo PLLC, filed a motion to
withdraw as counsel for Defendants based on Defendants'
failure to communicate effectively and failure to compensate
them as counsel. Dkt. Nos. 21, 22. The Court thereafter
scheduled an in-person conference for September 10, 2019 with
all counsel and parties to address the motion to withdraw.
Dkt. No. 25. On September 11, 2019, the Court issued an Order
to Show Cause (“OTSC”) after Defendants failed to
appear at the September 10, 2019 conference. Dkt. No. 30. The
OTSC required Ms. Khurana and Plaintiffs' counsel to
serve a copy of the OTSC on Defendants by certified mail,
return receipt requested, and file proof of said service with
the Court. Id. The OTSC also mandated that
Defendants appear in-person before the Court on October 23,
2019 and submit a position paper outlining why their Answer
should not be stricken no later than October 10, 2019.
Id. Finally, the Court granted Kruzhkov Russo
PLLC's motion to withdraw as counsel for Defendants and
required Plaintiffs' counsel and Ms. Khurana to serve a
copy of the order on Defendants by certified mail, return
receipt requested. Dkt. No. 29. Ms. Khurana was also directed
to serve a copy of the order on Defendants by email.
September 17, 2019, Ms. Khurana filed a declaration with the
Court attesting that she had served a copy of the OTSC and
order by email and by certified mail, with return receipt
requested at Defendants' last known address. Dkt. No. 31.
On September 20, 2019, Plaintiffs' counsel filed a
declaration with the Court attesting that he had also served
the OTSC and order on Defendants by regular mail and
certified mail, with return receipt requested. Dkt. No. 32.
10, 2019 came and went without any paper submission, or any
other communication, from Defendants. Defendants then failed
to appear at the OTSC hearing on October 23, 2019.
Federal Rules of Civil Procedure authorize courts to impose
sanctions for failure to respond to court orders and for
failure to prosecute or defend a case. See Fed. R.
Civ. P. 37(b)(2). Rule 37(b)(2) explicitly recognizes the
court's ability to strike a pleading, in whole or in
part, for failure “to obey an order to provide or
permit discovery.” Id.
where a sanction may “deprive a party of the right to
proceed with or defend against a claim, ” courts must
weigh the six factors enunciated by the Third Circuit in
Poulis v. State Farm Casualty Co., 747 F.2d 863 (3d
Cir. 1984) in deciding whether to impose the sanction.
See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1148
(3d Cir. 1990). The Poulis factors are:
(1) The extent of the party's personal responsibility;
(2) the prejudice to the adversary caused by the
plaintiff's conduct; (3) the 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.
Poulis, 747 F.2d at 868 (emphasis omitted). No.
single Poulis factor is determinative and dismissal
may be appropriate even if some of the factors are not met.
See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.
1992); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.
Defendants' Personal Responsibility.
case, it appears that Defendants are solely responsible for
their failure to comply with court orders and defend this
matter. At the outset, Defendants failed to cooperate with
their prior attorneys. Defendants' counsel withdrew on
September 11, 2019, and Defendants have made no apparent
efforts to retain new counsel. Moreover, both Plaintiffs'
counsel and Ms. Khurana served Defendants the OTSC by regular
mail, certified mail, and email, and yet Defendants did not
respond nor appear when required to do so by the Court. By
failing to ...