ARMUR REALTY, LLC et al v. BANCO DO BRASIL,, No. 2:2009cv02792 - Document 53 (D.N.J. 2010)

Court Description: OPINION & ORDER denying 41 Motion to Dismiss, and that Deft. file its motion for summary judgment within three weeks of entry of this order. Signed by Judge Stanley R. Chesler on 12/22/10. (dc, )

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ARMUR REALTY, LLC et al v. BANCO DO BRASIL, Doc. 53 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ARMUR REALTY, LLC, 3 WALLS REALTY, LLC, CARLOS FONSECA & MARIA VICTORIA FONSECA, Plaintiffs, v. BANCO DO BRASIL, S.A., : : : : : : : : : : Civil Action No. 09-2792 (SRC) OPINION & ORDER Defendant. CHESLER, District Judge Defendant Banco do Brasil, S.A. ( Banco ) has filed a motion to dismiss [docket entry no. 41] the Complaint filed by Armur Realty, LLC, 3 Walls Realty, LLC, Carlos Fonseca and his wife Maria Victoria Fonseca (collectively Plaintiffs ). Defendant seeks dismissal of this action for failure to prosecute and to comply with a court order requiring Plaintiffs to retain new counsel. [docket entry no. 40]. The Court has considered the papers filed by the parties and rules on the written submissions and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, the Court will deny the motion to dismiss. While Plaintiffs failed to retain new counsel by the date indicated in Magistrate Judge Shipp s order [docket entry no. 40] it is clear that they were making efforts to obtain counsel, and have ultimately done so. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863 (3d Cir. 1984) does not require that this Court grant the motion to dismiss, and, moreover, this Circuit favors decisions on the merits. See e.g., Ciemniecki v. Parker McCay P.A., Civil No. 09-6450 Dockets.Justia.com (RBK/KMW), 2010 WL 4746214, at *3 n.1 (D.N.J. Nov. 15, 2010). Because Defendant has indicated that it has been waiting six months to file a motion for summary judgment (Reply at 13), the Court will await filing of those papers to reach any decision. For these reasons, IT IS on this 22nd day of December, 2010, ORDERED that Defendant s motion to dismiss (docket entry no. 41) is DENIED; and it is further ORDERED that Defendant file its motion for summary judgment within three weeks of entry of this order. s/ Stanley R. Chesler Stanley R. Chesler, U.S.D.J 2

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