FERNANDEZ v. THE BROWNSTONE HOUSE INC. et al, No. 2:2011cv03129 - Document 53 (D.N.J. 2014)
Court Description: MEMORANDUM OPINION & ORDER granting deft's 48 Motion to Dismiss for Lack of Prosecution; dismissing pltf. Michael Antonio's claims in their entirety and closing case. Signed by Judge Esther Salas on 2/4/2014. (nr, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY SANDY FERNANDEZ, YORDANO BULA, ANGEL COTTY, ERICK BULA, and MICHAEL ANTONIO, Plaintiffs, v. THE BROWNSTONE HOUSE INC., ALBERT MANZO, and THOMAS MANZO, Defendants. : : : : : : : : : : : : : : : Civil Action No.: 11-3129 (ES) MEMORANDUM OPINION & ORDER SALAS, DISTRICT JUDGE This matter comes before the Court on the motion of defendants Brownstone House Inc., Albert Manzo, and Thomas Manzo (collectively, Defendants ) to dismiss plaintiff Michael Antonio s complaint, (D.E. No. 48), and the Court having considered Defendants submissions and the record in this action, and it appearing that: 1. Plaintiffs Sandy Fernandez ( Fernandez ), Yordana Bula, Angel Cotty ( Cotty ), Erick Bula, and Michael Antonio ( Antonio ) (collectively, Plaintiffs ) initially alleged that Defendants violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (D.E. No. 31). But Fernandez, Yordana Bula, Cotty, and Erick Bula subsequently withdrew their claims against Defendants with prejudice. (D.E. No. 51). Thus, only Antonio s claims remain against Defendants. 2. Antonio became a pro se litigant during the course of this action and failed to appear at a Court-ordered hearing. (D.E. Nos. 44 & 46). -1- Specifically, Antonio stopped communicating with his attorney in August 2012, prompting the Court to relieve the attorney from serving as Antonio s counsel. (D.E. Nos. 36 & 46). Antonio has also failed to produce discovery. (D.E. No. 48-2 ¶ 5). 3. Defendants argue that Antonio s claims should be dismissed under Federal Rule of Civil Procedure 37(d) as a sanction for failing to serve answers to interrogatories and for failing to prosecute this action. Defendants motion. (D.E. No. 48-1 at 1). Antonio has not opposed Generally, the Court must consider the following six factors, commonly referred to as the Poulis factors, before dismissing an action under these circumstances: 1) the extent of the nonmoving party s personal responsibility; 2) the prejudice to the moving party 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 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. Clarke v. Nicholson, 153 F. App x 69, 72 (3d Cir. 2005) (citing Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)); see also James Indus., Inc. v. Lexar Corp., 60 F. App x 385, 388 (3d Cir. 2003) (applying Poulis factors when affirming dismissal of claims under Federal Rule of Civil Procedure 37). But not all of the Poulis factors need to be satisfied in order to dismiss a complaint. James Indus., 60 F. App x at 388 (quotations omitted). 4. Here, analysis of the Poulis factors supports dismissal of Antonio s claims. Antonio is responsible for failing to provide discovery. To be sure, his former attorney indicated that Antonio received Defendants interrogatories. (D.E. No. 36 at 4-5). Yet, Antonio has not provided responses thereto. (D.E. No. 48-2 ¶ 5). And Antonio s failure to -2- cooperate with his attorney ultimately led to his attorney withdrawing representation. (D.E. No. 46). Although required to do so, Antonio has also failed to appear before the Court for a hearing relating to his prosecution of this action. (See id.). There seems to be no indication from Antonio that he intends to exchange discovery or prosecute this action. In fact, Antonio has not opposed Defendants motion to dismiss even though it was properly served upon him. (D.E. No. 48-4). Without discovery, Defendants are unable to adequately defend this matter, and Defendants have already reached settlements with every other former plaintiff in this matter. (D.E. No. 51; D.E. No. 48-1 at 2). The Court finds that, under the facts of this case, no alternative sanction but dismissal is appropriate. James Indus., 60 F. App x at 388-89 (affirming dismissal under Federal Rule of Civil Procedure 37 and explaining that, [g]iven [the party s] repeated failures to comply with discovery deadlines, obey court orders, or cooperate with counsel, we decline to conclude that the District Court erred by not specifically evaluating the merits of [the party s claims], particularly given that it considered the other five factors ). Accordingly, the time for filing opposition having expired, and having considered Defendants submissions and the record in this action, and pursuant to Federal Rule of Civil Procedure 78, IT IS on this 4th day of February 2014, hereby ORDERED that Defendants motion, (D.E. No. 48), is GRANTED; and it is further ORDERED that Plaintiff Michael Antonio s claims are DISMISSED in their entirety; and it is further -3- ORDERED that the Clerk of Court shall CLOSE this case. /s/ Esther Salas Esther Salas, U.S.D.J. -4-
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