HAYES v. STATE OF NEW JERSEY et al

Filing 120

ORDER ADOPTING REPORT AND RECOMMENDATIONS for Motions 114 , 115 and 116 . ORDERED that Defendants Andrew Tartaglia and Robert Abel's motion to dismiss Plaintiff's complaint 114 is GRANTED; ORDERED that Defendants James Nestor and Chad Cuneo's motion to dismiss Plaintiff's complaint 115 is GRANTED; ORDERED that Defendant Thomas King's motion to dismiss Plaintiff's complaint 116 is GRANTED; ORDERED that Plaintiff's complaint is DISMISSED WITH PREJUDICE. Signed by Judge Noel L. Hillman on 9/11/2013. (tf, )

Case 1:09-cv-06092-NLH-AMD Document 118 Filed 06/24/13 Page 1 of 14 PagelD: 655

[Doc.

Nos.

114,

115 and 116]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ALEXIS HAYES,

Civil No.

09-6092

(NLH/AMD)

Plaintiff,
V.

JAMES NESTOR,

et al.,
Defendants.

REPORT AND RECOMMENDATION
THIS
[Doc. Nos.
Abel,

114,

James

Plaintiff’s
Report

and

636(b) (1) (B>
requests.
recommends

MATTER

comes

before

the

Court

way

by

of

motions

115 and 116] of Defendants Andrew Tartaglia, Robert

Nestor,

Chad

complaint.

Cuneo,

These

Recommendation
and

(C>

and

motions

basis

because

of

Thomas
will

pursuant

the

King

be

to

dismiss

determined

to

dispositive

28

on

U.S.C.

nature

of

a
§

the

For the reasons set forth herein, the Court respectfully
granting

the

motions

and

dismissing

Plaintiff’s

complaint.
Plaintiff filed this civil rights action on December 1,
2009.

2010,

As set forth in the District Court’s Opinion of October 21,

Plaintiff alleges

that

the

Defendants

“violated her

civil

rights by creating and fostering a hostile work environment as a
result of the sexual harassment she was subjected to at the police

Case 1:09-cv-06092-NLH-AMD Document 118 Filed 06/24/13 Page 2 of 14 PagelD: 656

academy and during certain state work details.”
53],

1.)

By

Order

October

dated

21,

2010,

(Opinion

[Doc. No.

District

the

Judge

granted the motions of the State of New Jersey, Department of State
Police

and

Christine

against them,

Shallcross

and permitted the

administratively

criminal

matters

terminated

involving

Plaintiff’s

On June 14, 2011, this matter
the

by

the

Court

Plaintiff.

2011.)

On November 15,

2011,

due

pending

to

(Order

Application to Administratively Terminate Case
14,

claims

filing of an amended complaint.’

(Order [Doc. No. 54] Oct. 21, 2010.)
was

dismiss

to

on

Informal

[Doc. No.

75]

June

the Court reopened this matter,

directed that any motion to stay the case be filed by November 30,
2011, and further directed that pretrial discovery be concluded by
February 29,

2012.

(Order to Reopen

A motion

to

stay was

November 30,

2011

[Doc. No.

January

2012

dismissing

20,

directing

“that

damage claim
inquiring
pending

[be]

at

filed by

81],

80]

Nov.

Plaintiff’s

15,

2011.)

counsel

on

and the Court issued an Order on

the

discovery with

[Doc. No.

motion

respect

without
to

prejudice,

Plaintiff’s

and

emotional

stayed insofar as Defendants shall refrain from

Plaintiff’s

criminal

deposition

matters”

and

concerning

“following

Plaintiff’s

the

resolution

two
of

dispositive motions on liability, Defendants shall be permitted to
redepose

Plaintiff

record.”

(Order

on

[Doc.

the
No.

issue
85]

of

Jan.

damages
20,

as

2012.)

set

forth

on

the

A Scheduling Order

1.
Although the District Judge permitted the Plaintiff to file
an amended complaint, no amended complaint was filed on behalf of
the Plaintiff.

2

Case 1:09-cv-06092-NLH-AMD Document 118 Piled 06/24/13 Page 3 of 14 PagelD: 657

was

also

issued

on

January

20,

2012

pursuant

factual discovery was extended to May 29,
[Doc.

No.

86]

Jan.

20,

2012.)

2012.

Following a

with counsel of record on May 3,

2012,

which

to

pretrial

(Scheduling Order

telephone

conference

the Court issued an Amended

Scheduling Order extending pretrial factual discovery to June 29,
2012.

(Amended Scheduling Order
Defendants

assert

[Doc. No.
that

89]

they

May 3,

2012.)

noticed

Plaintiff’s

deposition for June 22, 2012, but that the deposition was unable to
go

forward as

deposition
communicate
Dismiss

counsel

would
with

[Doc.

take

for

Plaintiff

place

because

[Plaintiff].”

No.

114—1]

“could not
they

(Defs.’

Br.

had

been

not

in

(hereinafter “Defs.’

confirm that
able

to
to

Supp.

of

Mot.

Br.”),

1.)

Counsel

for Plaintiff moved to withdraw as counsel on July 24,
to Withdraw as Counsel of Record for P1.

the

[Doc. No.

2012

(Not.

By Order

94].)

dated July26, 2012, the Court scheduled a hearing on the motion to
withdraw for August 20,

2012,

directed that all counsel of record

and Plaintiff Alexis Hayes appear at the hearing,
failure
contempt

to
of

attend may
court.

result

in

(Scheduling

sanctions

Order

[Doc.

and may
No.

Alexis Hayes failed to appear on August 20, 2012.
an Order to Show Cause on August 22,

and noted that
be

deemed

a

Plaintiff

95].)

The Court issued

2012 requiring the Plaintiff

Alexis Hayes to appear on September 24,

2012 “to show cause as to

why an Order of contempt and/or an Order for sanctions should not
be entered for her failure to appear on August 20,

2012

.

.

.“

and

“to show cause why an Order to dismiss this matter for failure to
comply with discovery requests

should not be entered.”
3

(Order to

Case 1:09-cv-06092-NLH-AMD Document 118 Piled 06/24/13 Page 4 of 14 PagelD: 658

Show Cause

[Doc.

forth

failure

that

No.

101],
to

2.)

The Order to Show Cause also set

appear

“may

result

in

the

imposition

of

sanctions, including dismissal of Plaintiff’s complaint, and may be
deemed a contempt of Court.”

(Id.)

failed to appear on September 24,

Plaintiff Alexis Hayes again

2012.

By Order dated September 25,
motion of William H. Buckman,
Plaintiff

Alexis

Hayes,

2012,

Esquire,

and

the Court granted the

to withdraw as counsel for

required

Plaintiff

to

her

enter

appearance pro se or have new counsel enter an appearance on her
behalf by October 25,

2012.

(Order

107],

[Doc. No,

2.)

The Court

also required that Plaintiff’s counsel serve a copy of the Court’s
Order on Plaintiff

“by first class mail and certified mail

and file proof of service on the docket.”

(Id.)

.

On November

5,

2012, Mr. Buckman filed a certification indicating that the Court’s
Orders

of

August

Plaintiff by
Requested.”

“First

2012

and

Class

U.S.

September
Mail

91’l 3-4.)

were

mailed

2012

were

Buckman,

Esq.

sent

to

Receipt
[Doc.

No.

Mr. Buckman further certified that the orders which
by

“unclaimed.”

25,

and Certified Mail,

(Certification of William H.

110]

November 14,

22,

Id.

certified
Mr.

mail

Buckman

were

returned

additionally

his

to

filed

office

letter

a

as

dated

2012 indicating that the Court’s Orders of August 22,

2012 and September 25, 2012 which were sent to Plaintiff by regular
first class mail were not
Firm.

2012.)

returned to the William H.

(Letter of William H.

On

November

16,

Buckman,

2012,

the

Esq.
Court

[Doc. No.

4

112]

granted the

Buckman Law Firm’s request to withdraw as counsel

Buckman Law
Nov.

14,

William H.

for Plaintiff.

Case 1:09-cv-06092-NLH-AMD Document 118 Piled 06/24/13 Page 5 of 14 PagelD: 659

(Order

[Doc.

No.

113] .)

To

date,

Plaintiff

has

not

entered her

appearance pro Se, nor has new counsel entered an appearance on her
behalf.
In the motions to dismiss presently pending before the
Court,

Defendants assert that Plaintiff has not provided various

documents in response to a supplemental request for the production
of documents dated June 19, 2012, and further assert that they have
been unable to conduct the continuation of Plaintiff’s deposition.
(Defs.’ Br. at 4.) Defendants address the Poulis factors and assert
that the Poulis factors weigh in favor of dismissal.
FED. R. Civ. P. 16(f) (1)
any

just

orders,

including

37(b) (2) (A> (ii)—(vii),
obey

a

scheduling

16(f) (1) (C>.

FED.

provides that a court may “issue

or
R.

those

authorized

if a party or its attorney
other
Civ.

P.

pretrial

order.”

37(b) (2) (A)

.

.

FED.

provides

Rule

by

.
R.

fails to
Civ.

P.

in pertinent

part:
If a party . . . fails to obey an order to
provide or permit discovery, . . . the court
where the action is pending may issue further
just orders.
They may include the following:

(v)
dismissing the
whole or in part.
FED.

R.

CIV.

P.

37(b) (2) (A).

action

or

proceeding

Additionally,

FED.

R.

in

CIV.

P.

41(b)

provides that “[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order,

a defendant may move to dismiss

the action or any claim against it.”

5

Rule 41(b)

further provides

Case 1:09-cv-06092-NLH-AMD Document 118 FUed 06/24/13 Page 6 of 14 PagelD: 660

that

“[u]nless

the dismissal order states otherwise,

under this subdivision

and any dismissal not under this rule--

(b)

except one for lack of jurisdiction,
join

a

under

party

merits.”

Rule

FED. R. dv. p.

a dismissal

improper venue,

19--operates

an

as

or failure to

adjudication

on

the

41(b).

While Defendants move for dismissal under both Rule 37
and Rule 41 (b),

the Court finds Rule 37 to be more applicable to

the facts of this case.

“Rule 37 covers sanctions for failure to

make discovery and is the appropriate rule to use when dismissal is
based on noncompliance with a discovery order.”
Manville

Sales

Dunbar v.

Corp.,

677

F.2d

339,

341

n.1

Triangle Lumber and Supply Co.,

1987) (addressing

dismissal

under

Rule

Donnelly v. Johns—
(3d Cir.

816

1982);

F.2d 126

41(b)

when

cf

(3d Cir.

plaintiff’s

counsel repeatedly failed to appear at court—ordered conferences
and

hearings,

but

remanding

to

the

district

court

to

plaintiff an opportunity to have a hearing on the matter)

give
.

the

Here,

the alleged failure to prosecute arises out of Plaintiff’s alleged
failure to comply with discovery orders and a failure to appear.
“In deciding whether sanctions that
the

right

to

appropriate,

proceed

with

No.
.

defend

the Court considers the

Third Circuit in Poulis v.

2010)

or

08—4400,

[1

‘deprive a party of

against

a

claim’

are

factors set forth by the

State Farm Fire & Cas. Co..” Chiarulli

2010

WL

1371944

at

*2

The factors set forth in Poulis are:
(i)
the extent of the party’s personal
responsibility;

6

(D.N,J,

Mar,

31,

Case 1:09-cv-06092-NLH-AMD Document 118 Filed 06/24/13 Page 7 of 14 PagelD: 661

(ii)
the prejudice to the adversary caused by
the failure to meet scheduling orders and
respond to discovery;
(iii)

a history of dilatoriness;

whether the conduct of the party or the
(iv)
attorney was willful or in bad faith;
the effectiveness of sanctions other than
(v)
dismissal,
entails
which
analysis
an
of
alternative sanctions; and
(vi)
the
defense.

meritoriousness

Poulis v. State Farm Fire & Cas. Co.,
1984)

“Because

.

deprives

a

party

stated that
cases,

as

an

order

of

its

‘a court

the

of

day

in

of

the

court,

law

the

claim

747 F.2d 863,

dismissal

should resort

policy

of

is

Third

to dismissal

is

to

868—71

harsh

a

[the

or

favor

(3d Cir.

remedy

that

Circuit

has]

only in extreme

the

hearing

of

a

litigant’s claim on the merits.’” Bush v. Dept. of Human Services,
No. 11—4444, 2012 WL 2107982, at *2
Spain v.

Gallegos,
Here,

dismissal

of

26 F.3d 439,

the

Court

Plaintiff’s

(3d Cir. June 1, 2012)

454

finds

(3d Cir.

that

complaint

under

(quoting

1994)).
the

Poulis

is warranted at

factors,

this

time as

Plaintiff has failed to comply with numerous court orders and has
failed to prosecute her case.

Under the first Poulis factor,

the

Court considers the extent of the party’s personal responsibility.
Poulis,
to

747 F.2d at 868.

retain counsel

failed to do so.

While Plaintiff was provided ample time

or enter her appearance pro Se,
Therefore,

Plaintiff has

no one but Plaintiff is responsible

for her failure to provide discovery responses and her failure to
comply

with

court

orders.

See
7

Hunt-Ruble

v.

Lord,

Worrell

&

Case 1:09-cv-06092-NLH-AMD Document 118 Piled 06/24/13 Page 8 of 14 PagelD: 662

Inc., No. 10—4520, 2012 WL 2340418, at *4

Richter,

(D.N.J. June 19,

2012) (adopting this Court’s report and recommendation which found
the pro se defendant personally responsible for the inaction which
led to the striking of defendant’s answer.) Consequently, the first
Poulis factor weighs in favor of dismissal.
Under the second Poulis factor,
“prejudice

the

to

adversary

caused

the Court considers the
the

by

scheduling orders and respond to discovery.”
868.

In

the

adversary

Poulis

“[ejvidence

Poulis,
of

to

747

meet

F.2d at

prejudice

to

an

[ I bear[s] substantial weight in support of a dismissal

‘

or default judgment.
Pension

analysis,

failure

Trust

Scarborough

Fund,

Adams v. Trustees of N.J. Brewery Employee’s

‘“

29

F.3d

Eubanks,

v.

863,

747

874

F.2d

(3d

871,

Cir.

876

1994)
Cir.

(3d

(quoting
1984))

“Prejudice also includes deprivation of information through non
cooperation
orders

with

force

to

discovery,
compliance

and
with

costs

expended

discovery.”

Id.

obtaining
As

this

court
Court

previously noted in Chiarulli, “[a] party may also be prejudiced if
its

‘ability

strategy’

is

to

impeded.”

Rodale Press,

Inc.,

Here,
with

court

discovery
Plaintiff’s

prepare

effectively
2010

WL

322 F.3d 218,

case

full

1371944,
222

at

(3d Cir.

and
*3

complete

trial

(citing Ware

v.

2003)).

Defendants assert that Plaintiff failed to comply

orders
requests
failure

(Defs,’
(Defs,’

to

Br.

2-3)

Br,

forward

has

participate

prejudiced
8

and

3-4)

failure to comply with court orders,
this

a

.

in

failed
The
the

to

Court

respond
finds

discovery

to

that

process,

and failure to proceed with
Defendants

by

making

it

Case 1:09-cv-06092-NLH-AMD Document 118 Filed 06/24/13 Page 9 of 14 PagelD: 663

unnecessarily difficult for Defendants to litigate the case.
e.g.,

Hunt-Ruble,

“[p]laintiffs
because

2012

WL

2340418,

at

*4

See,

(finding

that

[were] prejudiced by [d]efendant’s failure to appear
[were]

[p]laintiffs

unable

to move beyond the

discovery

phase of litigation”)

(citing Hoxworth v. Blinder, Robinson & Co.,

Inc.,

920

980

F.2d

plaintiffs

912,

Cir.

(3d

defendants’

because

adequately made[.]”))

1992)

(finding

discovery

prejudice

responses

were

to

“never

Therefore, the Court finds tiat the second

.

Poulis factor weighs in favor of dismissal.
Under

the

third

Poulis

factor,

the

Court

considers

whether the non-moving party has a history of dilatoriness. Poulis,
747

F.2d

at

868.

constitutes

a

non—response

“‘Extensive

history
to

of

or

repeated

delay

or

delinquency

dilatoriness,

such

as

consistent

or

interrogatories,

consistent

tardiness

complying with court orders.’” Chiarulli,

2010 WL 1371944,

(citing

Defendants

Adams,

Plaintiff’s
months

.

.

29

F.3d

“history
.

of

at

874)

Here,

.

dilatoriness

stretches

Br.

discovery,

back

at *3
that

nearly

20

and that Plaintiff’s “refusals to provide discovery,

despite repeated requests and reminders,
(Defs.’

assert

in

at
has

7.)

Plaintiff

failed

to

has

appear

is not a new occurrence.”

provided

for

a

no

supplemental

continuation

of

deposition, and has failed to comply with court orders.

her

Therefore,

the Court finds there to be a history of dilatoriness.
Under

the

fourth

Poulis

factor,

the

Court

considers

“whether the conduct of the party or the attorney was willful or in
bad faith.”

Poulis,

747 F.2d at 868-69.
9

In the dismissal context

Case 1:09-cv-06092-NLH-AMD Document 118 RIed 06/24/13 Page 10 of 14 PagelD: 664

under the Poulis analysis,
self-serving
behavior’

behavior.”

or

‘inexcusable’

Adams,

‘failure
—

“[w]ilifulness involves intentional or

to

29

move

F.3d
with

875.

at

“‘

dispatch’

[N]egligent
even

—

if

will not suffice to establish willfulness or bad
at *3

faith.” Chiarulli,

2010 WL 1371944,

at 875)

.

However,

as this Court has previously noted “where the

record

is

unclear

as

whether

to

party

a

(quoting Adams,

acted

consistent failure to obey orders of the court,
renders a party’s actions willful
Poulis

factor.’”

Martino
1959226,

v.

Hunt—Ruble,

Solaris

at

*5

Health

(D.N.J.

2012

Order

required

counsel’s motion

Systems
29,

WL

2340418,

Corp.,
2007)).

Plaintiff

to withdraw;

faith,

a

‘at the very least,

No.

to

(quoting

04-6324,

Here,

appear

*5

at

consistently failed to comply with court orders.
26,

bad

for the purposes of the fourth

2012

June

in

29 F.3d

2007

Plaintiff

WL
has

The Court’s July
for

the Court’s August

a
22,

hearing
2012

on

Order

again required Plaintiff’s appearance in Court for an Order to Show
Cause; and the Court’s September 25,

2012 Order required Plaintiff

to obtain an attorney or enter her appearance pro Se.
has failed to comply with the court orders,
Plaintiff by regular mail.
(Doc. No.

112] Nov.

14,

Plaintiff

which were served on

(See Letter of William H. Buckman, Esq.

2012.)

Furthermore, Plaintiff has provided

no justification for her continued failure to comply.

Therefore,

the Court finds Plaintiff’s non—compliance with the Court’s Orders
to be

willful

and

intentional,

Consequently,

the

fourth

Poulis

factor weighs in favor of dismissal.
Under the fifth Poulis factor,
10

the Court considers “the

Case 1:09-cv-06092-NLH-AMD Document 118 Piled 06/24/13 Page 11 of 14 PagelD: 665

effectiveness of sanctions other than dismissal,
analysis of alternative sanctions.”

which entails an

747 F.2d at

Poulis,

868—69.

“The Third Circuit has identified a number of alternative sanctions
available
placing

to a court,

the

case

at

including
the

‘a warning,

bottom

of

a

formal

calendar,

the

reprimand,
fine,

a

the

imposition of costs or attorney fees or the preclusion of claims or
defenses.’”

Smith,

2004

WL

2399773,

Mercedes—Benz of North America,
1982))

695

*7

at

(quoting

F.2d 746,

repeated failure to participate in discovery,

to respond to Defendants’ motions to dismiss,
Plaintiff

case.
have

has

no

(3d Cir.

intention

of

and failure

the Court concludes

continuing

to

litigate

this

Therefore, the Court finds that alternative sanctions would
no effect

on

Plaintiff’s

discovery obligations,

or

her

See Genesis Eldercare Rehab.
07—1843,
that

6

v.

Based on Plaintiff’s continued non-compliance with court

.

orders,

that

759 n.

Titus

2008 WL

sanctions

1376526,

other

interest

Servs.,

at

than

compliance with court

*2

Inc.

litigating this

v.

Beam Mgmt.,

Pa.

Apr.

would

be

(E.D.

dismissal

in

orders,

9,

her

case.

LLC,

No.

2008) (finding

insufficient

when

defendant “demonstrated its complete neglect of its obligations as
a litigant in this matter”)

.

Therefore,

the Court finds that the

fifth Poulis factor weighs in favor of dismissal.
Finally,

under

the

sixth

Poulis

factor,

considers the meritoriousness of Plaintiff’s claim,
F.2d at

869-70.

However,

at

this

stage

the

Court

Poulis,

747

of the proceedings,

the

Court does not have a sufficient basis upon which to evaluate the
meritoriousness of Plaintiff’s claims and need not do so in order
11

Case 1:09-cv-06092-NLH-AMD Document 118 Filed 06/24/13 Page 12 of 14 PagelD: 666

to

resolve

the

pending

motions.

The

Court

“mini-trial before it can impose default.”
922.

Therefore,

need

not

Hoxworth,

conduct

a

980 F.2d at

the Court finds that at this time the sixth Poulis

factor is neutral in the Court’s consideration of dismissal.
The Court notes

that

“[e]ach Poulis

factor need not be

satisfied for the District Court to dismiss a complaint.”
v.

State

5146524,
214

F.

National
*7

at

App’x

Ins.

Co.,

Pa.

Dec.

(M.D.

230,

233

Inc.,
8,

(3d Cir.

No.

2008)
2007))

Bromily

3:CV—07—2039,

2008

(quoting Fattah v.
.

The

Court

finds

WL

Beard,
that

on

balance the Poulis factors weigh in favor of dismissal.
2
Consequently,
respectfully

for the reasons set forth above,

recommends

that

Defendants’

motions

to

the Court

dismiss

be

granted and Plaintiff’s complaint be dismissed with prejudice.
Any objections to this Report and Recommendation must be
filed within fourteen
72.1(c) (2)

(14)

days of service pursuant to L. Civ. R.

and FED. R. Civ. P. 72(b) (2).

s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE

Dated:

June 24,

2013

2.
Having found dismissal appropriate under Rule 37,
need not address Rule 41 (b)
12

the Court

Case 1:09-cv-06092-NLH-AMD Document 118 Piled 06/24/13 Page 13 of 14 PagelD: 667

[Doc. Nos.

114,

115 and 116]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ALEXIS HAYES,

Civil No.

09-6092

(NLH/AMD)

Plaintiff,
V.

JAMES NESTOR,

et al.,
Defendants.

ORDER
THIS
motions

MATTER

[Doc.

Nos.

having
114,

come

115

and

Tartaglia,

Robert Abel,

to dismiss

s
1
Plaintiff complaint;

the

Report

Donio,

and

United

636(b) (1) (B)

and

(C);

116]

James Nestor,

Recommendation

States

before

of

Court

way

by

Defendants

Chad Cuneo,

of

Andrew

and Thomas King

and the Court having considered

submitted

Magistrate

the

Judge,

by

the

pursuant

Hon.
to

Ann

28

Marie

U.S.C.

§

and the Court having made a de novo review;

and for good cause shown:
IT IS on this
ORDERED

that

L

day of

the Report

2013,

hereby

and Recommendation is ADOPTED;

and it is fjrther
ORDERED

that

Defendants

Andrew

Tartaglia

and

Pobert

Abel’s motion to dismiss Plaintiff’s complaint [Doc. No. 114] shall
be,

and is hereby,

GRANTED;

and it is further

Case 1:09-cv-06092-NLH-AMD Document 118 Piled 06/24/13 Page 14 of 14 PagelD: 668

ORDERED

that

Defendants

James

motion to dismiss Plaintiff’s complaint
and is hereby GRANTED;

Nestor
[Doc.

and

No.

Chad Cuneo’s

115]

shall be,

and it is further

ORDERED that Defendant Thomas King’s motion to dismiss
Plaintiff’s
GRANTED;

complaint

No.

116]

shall

be,

and

is

hereby,

and it is further
ORDERED

hereby,

[Doc.

that

Plaintiff’s

complaint

shall

be,

DISMISSED WITH PREJUDICE.

NOEL L.

HILLMAN

United States District Judge
AT CAMDEN,

NEW JERSEY

and

is