Alsoy et al v. Ciceksepeti Internet Hizmetleri Anonim Sirketi

Filing 70

REPORT AND RECOMMENDATIONS- re 69 MOTION to Dismiss for Lack of Prosecution. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) page s) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 1/18/2019. Signed by Judge Sherry R. Fallon on 1/4/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DIDEM GUNEY ALSOY AND MEHMET
ALI ALSOY AND BONAPORT LLC,
Plaintiffs,
V.

<;I<;EKSEPETI INTERNET HIZMETLERI,
ANONIM SIRKETI,
Defendant.

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Civil Action No. 15-174-JFB-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Presently before the court in this trademark action is the motion to dismiss for lack of

prosecution filed by defendant Ciceksepeti Internet Hizmetleri Anonim Sirketi ("defendant").
(D.I. 69) For the following reasons, I recommend that the court grant defendant's motion to
dismiss with prejudice.

II.

BACKGROUND
Plaintiffs Didem Guney Alsoy, Mehmet Ali Alsoy, and Bonaport LLC ("plaintiffs") filed

this trademark infringement action on February 20, 2015. (D.I. 1) Thereafter, plaintiffs
experienced difficulty maintaining counsel, and three separate sets of counsel withdrew from
representing plaintiffs. (D.I. 18; D.I. 31; D.I. 66) On October 15, 2018, the court entered an
order granting plaintiffs thirty days to retain new counsel. (D.I. 66) The order further provided
that, if plaintiffs failed to retain counsel on or before November 14, 2018, they must show cause
why the case should not be dismissed by December 14, 2018. (Id.) The court's correspondence
to plaintiffs, which was sent to plaintiffs' last known address as provided by plaintiffs' former

counsel, was returned undeliverable. 1 (D.I. 67)

III.

LEGAL STANDARDS
Pursuant to Federal Rule of Civil Procedure 41 (b), a court may dismiss an action for

"fail[ure] to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order."
Fed. R. Civ. P. 41(b). This determination is within the district court's discretion. Link v.

Wabash R.R. Co., 370 U.S. 626, 630-32 (1962); Livera v. First Nat'l Bank ofNew Jersey, 879
F .2d 1186, 1194 (3d Cir. 1989). In considering whether dismissal is appropriate, courts within
the Third Circuit use the following six-factor test:
(1) the 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.

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863,868 (3d Cir. 1984); see also Livera, 879
F.2d at 1194. Because dismissals with prejudice are a drastic sanction, the court must "have a
full understanding of the surrounding facts and circumstances pertinent to the Poulis factors
before it undertakes its analysis." Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008). The Local
Rules further provide that, "in each case pending wherein no action has been taken for a period
of 3 months, the Court may, on its motion or upon application of any party, and after reasonable
notice and opportunity to be heard, enter an order dismissing such case unless good reason for
the inaction is given." D. Del. LR 41.1.
The law is well-established that a corporation or other organization must be represented
by a licensed attorney. See Dougherty v. Snyder, 469 F. App'x 71, 72 (3d Cir. 2012).

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Due to the invalid address on file for plaintiffs, the court has no means of providing the instant
order to plaintiffs apart from its filing on the public docket.
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IV.

ANALYSIS
I recommend that the court dismiss the instant action with prejudice due to plaintiffs'

failure to retain new counsel and failure to prosecute the instant action. Plaintiffs last
participated in this action by filing a joint status report on April 2, 2018. (D.I. 58) The record
reflects that plaintiffs did not communicate with or pay their most recent counsel for a period of
more than six months. (D.1. 61) Plaintiffs have been the subject of no less than three show cause
orders since the filing of the present lawsuit, and have failed to respond to the most recent of
those orders, which cautioned that failure to respond would result in the dismissal of the case.
(D.1. 5; D.I. 22; D.I. 66)
Viewing these facts in light of the Pou/is factors, I recommend that the court dismiss the
action with prejudice due to plaintiffs' history of dilatoriness. In addition, plaintiffs bear
personal responsibility for failing to maintain adequate communication with their own counsel
and neglecting to provide the court and counsel with accurate contact information. Continuing
the action would be prejudicial to defendant, who unilaterally filed the most recent status report
due to plaintiffs' nonparticipation in the present action. (D.I. 62) Plaintiffs' apparent
abandonment of the present litigation further confirms that sanctions other than dismissal would
not be effective in this instance. On balance, the Paulis factors weigh in favor of dismissal of the
action with prejudice.

V.

CONCLUSION
For the foregoing reasons, I recommend that the court grant defendant's motion to

dismiss. (D.I. 69)
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections

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within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.

Dated: January 3, 2019

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