SHAW, et al v. OBERMIER, et al
Filing
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OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 8/6/14. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MELISSA L. SHAW, et al.,
HONORABLE JEROME B. SIMANDLE
Plaintiffs,
Civil Action
No. 11-276 (JBS/JS)
v.
SCOTT OBERMIER, et al.,
OPINION
Defendants.
APPEARANCES:
Ms. Melissa L. Shaw
50 Dorchester Circle
Marlton, NJ 08053
Plaintiff, pro se
Mr. Salahuddin F. Smart
2648 South 7th Street
Philadelphia, PA 19148
Plaintiff, pro se
Paola F. Kaczynski, Esq.
WILLIAM J. FERREN & ASSOCIATES
1500 Market Street, Suite 2920
Philadelphia, PA 19102
Attorney for Defendants Scott Obermier, Richard Worst, Mark
Pickard, Mario Straccialini, James W. Shriver, Harry Earle,
and Chief of Police
SIMANDLE, Chief Judge:
I.
INTRODUCTION
This opinion addresses the main issue of whether the case
of a pro se plaintiff who repeatedly fails to appear for courtordered conferences should be dismissed for plaintiff’s failure
to prosecute.
This matter comes before the Court on the motion of
Defendants Scott Obermier, Richard Worst, Mark Pickard, Mario
Straccialini, James W. Shriver, Harry Earle, and Chief of Police
to dismiss for lack of prosecution against Plaintiff Melissa
Shaw.1 [Docket Item 72.] This action arises from two traffic
stops in Gloucester Township in the early morning of November
10, 2010 which followed observations by the local police of
suspected drug activity involving pro se Plaintiffs Melissa Shaw
and Salahuddin Smart. Prior to the traffic stops, detectives
conducting surveillance in the area observed Plaintiff Smart in
the parking lot of a Howard Johnson Motel entering a vehicle
operated by Plaintiff Shaw and returning to his vehicle, which
was later revealed to be a vehicle rented by Plaintiff Shaw.
Ultimately, both Plaintiff Smart and his passenger, Melissa
Librojo, were charged with possession of a controlled substance.
In this consolidated action, Plaintiffs assert claims under
42 U.S.C. § 1983 for alleged violations of their 4th Amendment
rights stemming from the traffic stop and subsequent criminal
prosecution. In the instant motion, Defendants seek dismissal of
Plaintiff Shaw’s claims under Poulis v. State Farm Fire & Cas.
Co., 747 F.2d 863 (3d Cir. 1984) because she has repeatedly
ignored the Court’s orders and failed to appear at court-
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Defendants’ motion seeks dismissal of Plaintiff Shaw’s claims
only.
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scheduled conferences and her own deposition despite the threat
of sanctions, including dismissal.
For the foregoing reasons, the Court will grant Defendants’
motion and dismiss Plaintiff Shaw’s case in its entirety with
prejudice.
II.
BACKGROUND
A. Facts
The Court recounts the following facts from Plaintiffs’
Amended Complaint only to provide background for the instant
motion. In the early morning hours of November 10, 2010,
detectives from the Gloucester Township Police Department
(“GTPD”) were conducting surveillance in an area known for
criminal activity near the Howard Johnson Motel in Gloucester
Township. The detectives observed a car driven by Plaintiff
Smart circle the Howard Johnson’s parking lot repeatedly before
ultimately parking next to second vehicle, a white SUV driven by
Plaintiff Shaw, which pulled to the rear of the lot. The
detectives watched as Plaintiff Smart entered the rear passenger
compartment of the white SUV, returned to his vehicle, then
entered the white SUV a second time before returning to his
vehicle and exiting the parking lot. The detectives positively
identified Smart, who was known to them due to previous
encounters and arrests for criminal activity. Detectives
believed Plaintiff Smart’s license was suspended and called for
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his vehicle to be stopped. During the stop, Smart and his
passenger were ordered to exit the vehicle. Upon being advised
that a female officer was going to conduct a pat down of her
person, the passenger, Melissa Librojo, stated that she placed a
bag down the front of her pants. She was then found in
possession of two plastic bags containing small pills. The
officers conducted a K-9 search of the perimeter of the vehicle
which indicated negative results. Both Smart and Librojo were
charged with possession of a controlled substance.
That same evening, members of the GTPD also executed a
traffic stop of the white SUV driven by Plaintiff Shaw. During
the stop, Shaw explained that she worked for an assisted living
facility and she had just picked up a patient who was sitting in
the passenger seat. Shaw consented to a search of her vehicle,
but no contraband was found. When asked about her stop at the
Howard Johnson parking lot, Shaw explained that she met Smart
there because she rented the car Smart was driving and he gave
her money. Shaw also consented to a search of the vehicle Smart
was driving, but no contraband was found. Shaw was not arrested
or charged with a crime.
B. Procedural background
Plaintiffs Shaw and Smart initiated separate actions on
January 18, 2011 and February 9, 2011 respectively. On March 15,
2011, Shaw and Smart filed an Amended Complaint in Shaw v.
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Obermier, Civil No. 11-276 (JBS/JS). [Docket Item 6.] On that
same date, Plaintiffs filed an unopposed motion to consolidate
the later-filed action Smart v. Pickard, Civil No. 11-743
(RBK/AMD) with Shaw v. Obermier, Civil No. 11-276 (JBS/JS),
which the Court granted on April 6, 2011. [Docket Item 9.] Shaw
appeared at the initial conference on May 18, 2011. Defendants
then answered the Amended Complaint on September 12, 2011.
[Docket Item 15.]
On November 7, 2011, Magistrate Judge Schneider issued an
order to show cause as to why Plaintiffs Shaw and Smart should
not be sanctioned for failing to appear at the status conference
scheduled for November 3, 2011. [Docket Item 16.] Judge
Schneider’s order scheduled a show cause hearing for December
15, 2011 and noted that “failure to appear in response to this
Order to Show Cause may result in the imposition of sanctions.
If Plaintiffs do not appear in response to this Order, this will
indicate to the Court that plaintiffs have abandoned their case.
The Court may thereafter recommend that the case be dismissed.”
Both Plaintiffs appeared at the December 15 hearing.
On August 21, 2012, after Plaintiffs Shaw and Smart failed
to appear at a status conference scheduled for August 16, 2012,2
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Judge Schneider denied Plaintiff Shaw’s request to adjourn the
August 16, 2012 conference and expressly directed Shaw to attend
despite her contention that Plaintiff Smart was in custody.
[Docket Item 35.]
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Judge Schneider issued a second order to show cause noting the
possibility of sanctions.3 [Docket Item 37.] Plaintiff Shaw
failed to appear at the subsequent show cause hearing scheduled
for September 13, 2012. Thereafter, Judge Schneider ordered the
case to be administratively terminated without prejudice due to
Smart’s incarceration and “the fact that Melissa L. Shaw has
ignored the Court’s Orders to appear.” [Docket Item 41.]
Upon Smart’s release from custody, the Court reopened the
case upon the docket. [Docket Item 43.] After Plaintiffs Shaw
and Smart failed to appear at the next scheduled status
conference, Judge Schneider issued a third order to show cause
as to why Plaintiffs should not be sanctioned due their
unexcused absences. [Docket Item 45.] On December 17, 2012,
Judge Schneider cancelled the good cause hearing scheduled for
the next day and entered a second order administratively
terminating the case due to Plaintiff Smart’s incarceration and
Plaintiff Shaw’s repeated failure to appear. [Docket Item 50.]
On August 13, 2013, Judge Schneider reopened the case and
scheduled a status conference for September 30, 2013, at which
Plaintiff Shaw failed to appear, prompting a fourth order to
show cause. [Docket Item 58.] Again, the Court made clear that
failure to appear may result in the imposition of sanctions,
3
Judge Schneider vacated the order to show cause as to Plaintiff
Smart only after Smart explained that he was incarcerated at the
Camden County Correctional Facility. [Docket Item 39.]
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including dismissal. Plaintiff Shaw appeared at the show cause
hearing on September 30, 2013 and no sanctions were imposed.
[Docket Item 64.] Shaw indicated that she understood that she
must appear in-person at a status conference scheduled for
December 17, 2013. Nevertheless, Shaw failed to appear on
December 17th. [Docket Item 70.] Defendants represent to the
Court that Plaintiff Shaw also failed to appear at her
deposition scheduled for January 27, 2014.
On January 29, 2014, Defendants filed the instant motion to
dismiss for lack of prosecution against Plaintiff Shaw. [Docket
Item 72.] Plaintiff Shaw filed opposition [Docket Item 74] and
Defendants filed a reply [Docket Item 75.] On March 15, 2014,
Defendants filed two motions for summary judgment as to
Plaintiff Smart’s claims. [Docket Items 86 & 87.] On July 11,
2014, Plaintiff Smart filed a motion for leave to file an allinclusive second amended complaint. [Docket Item 103.] This
opinion only addresses Defendants’ motion to dismiss for lack of
prosecution as to Plaintiff Shaw.
III. STANDARD OF REVIEW
Pursuant to Fed. R. Civ. P. 41(b), a defendant may move to
dismiss an action or any claim against it “if the plaintiff
fails to prosecute or to comply with [the Federal Rules of Civil
Procedure] rules or a court order.” The Third Circuit has noted
that “dismissal is a drastic sanction and should be reserved for
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those cases where there is a clear record of delay or
contumacious conduct by the plaintiff.” Poulis v. State Farm
Fire & Cas. Co., 747 F.2d 863, 866 (3d Cir. 1984). However,
dismissal is appropriate if a party fails to prosecute the
action. Harris v. City of Philadelphia, 47 F.3d 1311, 1330 (3d
Cir. 1995). Failure to prosecute does not require a party to
affirmatively delay the case. Failing to comply with court
orders, failing to respond to discovery, or otherwise failing to
act may constitute lack of prosecution. Adams v. Trustees of the
New Jersey Brewery Employees’ Pension Trust Fund, 29 F.3d 863,
875 (3d Cir. 1994). In determining whether dismissal is an
appropriate sanction, courts generally consider the factors
outlined in Poulis. The six Poulis factors are: (1) the extent
of the party’s personal responsibility; (2) prejudice to the
adversary; (3) a history of dilatoriness; (4) whether the
conduct was willful or in bad faith; (5) availability of
alternative sanctions; and, (6) the meritoriousness of the
claim. Poulis, 747 F.2d at 868. “Not all of these factors need
be met for a district court to find dismissal is warranted.”
Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).
IV.
DISCUSSION
A. Defendants’ motion for sanctions
Defendants request that the Court dismiss Plaintiff Shaw’s
suit in its entirety as a sanction for her repeated failure to
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comply with the Court’s orders and repeated unexcused absences
from court-scheduled conferences, show cause hearings, and her
own deposition. In response, Plaintiff Shaw provides no
explanation for her defiance of court orders and her recurrent
absences. Shaw only addresses her failure to appear at her
deposition scheduled for January 27, 2014 and claims she was
unaware that it had been rescheduled for that date. A review of
the Poulis factors shows that dismissal with prejudice is
proper.
1. Plaintiff’s personal responsibility
Plaintiff Shaw, as a pro se litigant, is solely responsible
for her failure to comply with the Court’s orders. See Briscoe
v. Klaus, 538 F.3d 252, 258-59 (3d Cir. 2008) (“It is logical to
hold a pro se plaintiff personally responsible for delays in his
case because a pro se plaintiff is solely responsible for the
progress of his case, whereas a plaintiff represented by counsel
relies, at least in part, on his or her attorney.”). Shaw has
provided no explanation in opposition to Defendants’ motion
regarding her unexcused absences from status conferences which
led to four orders to show cause. Moreover, Shaw has not
explained why she failed to appear at the show cause hearing
scheduled for September 13, 2012 and why she failed to appear at
the December 17, 2013 status conference after Judge Schneider
declined to impose sanctions and expressly informed Shaw of her
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obligation to attend. As such, the Court finds that Plaintiff
Shaw is personally responsible for her willful failure to comply
with the Court’s orders and repeated absences.
2. Prejudice to defendants
The prejudice to Defendants caused by Plaintiff’s failure
to comply with the Court’s orders and continued failure to
appear supports dismissal. The Third Circuit has instructed that
“prejudice is not limited to ‘irremediable’ or ‘irreparable’
harm” and “includes the burden imposed by impeding a party’s
ability to prepare effectively a full and complete trial
strategy.” Briscoe, 538 F.3d at 259 (internal citation and
quotation omitted). Plaintiff’s refusal to appear at status
conferences has impeded Defendants’ ability to defend this case.
The four orders to show cause have required defense counsel to
travel to Camden, New Jersey and wait for Plaintiff Shaw to
appear, resulting in the unnecessary expense of Defendants’ time
and resources. Importantly, the discovery deadline in this
matter was set for February 14, 2014, and Plaintiff Shaw’s
failure to appear at her deposition scheduled for January 27,
2014, coupled with her departure from New Jersey for one month
thereafter, prevented Defendants from taking Shaw’s deposition
in a timely fashion. Therefore, the Court finds that Plaintiff
Shaw’s conduct has prejudiced Defendants.
3. History of dilatoriness
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In addition to her failure to appear at her deposition,
Plaintiff Shaw’s failure to appear at status conferences
resulted in four orders to show cause. Although Shaw appeared at
three of the subsequent show cause hearings, she failed to
appear at the show cause hearing on September 13, 2012. After
Judge Schneider accepted Shaw’s explanations for her prior
absenteeism at the September 30, 2013 show cause hearing, she
failed to appear at the next scheduled status conference which
Shaw was explicitly directed to attend in-person. Moreover, the
Court rejects Plaintiff Shaw’s explanation for neglecting to
appear at her deposition on January 27, 2014. The Court
recognizes that the deposition was initially scheduled for
January 22, 2014, but cancelled due to inclement weather.
However, Defendants represent that they informed Shaw of the
need to reschedule the deposition for January 27, 2014 by
sending an email to Shaw at an email address she had recently
used to correspond with defense counsel. It is noteworthy that
defense counsel chose to reschedule the deposition in short
order due to Shaw’s intention to leave the state for one month
beginning January 28, 2014. Defense counsel chose to communicate
via email due to the urgency of the matter in light of the
February 14, 2014 discovery deadline. In light of the foregoing,
it is clear that Plaintiff Shaw has an extensive history of
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dilatoriness, absenteeism, and defiance of court orders that
weighs in favor of dismissal.
4. Willfulness or bad faith
Plaintiff Shaw’s misconduct in this case has been willful
and in bad faith. If Shaw’s willful neglect of this action was
not clear enough in the need for four orders to show cause why
she failed to appear at court-scheduled conferences, her failure
to appear at her own deposition manifested her neglect of and
disregard for this action. As such, her significant history of
noncompliance with the Court’s orders demonstrates bad faith.
Plaintiff Shaw has flouted numerous court orders despite clear
warnings that noncompliance could result in sanctions, including
dismissal. Shaw’s failure to appear at her own deposition
suggests willfulness and bad faith, which viewed together with
her unexcused absences from numerous status conferences, weighs
in favor of dismissal.
5. Availability of alternative sanctions
Because Plaintiff Shaw has repeatedly ignored the Court’s
orders, the Court finds that dismissal is the only effective
sanction. This action has been administratively terminated on
two occasions due in part to Plaintiff Shaw’s unexcused
absences. After the fourth order to show cause, Judge Schneider
declined to impose sanctions and Plaintiff Shaw continued her
dilatory and recalcitrant behavior. Plaintiff’s repeated and
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continuing disregard for the Court’s orders and disregard for
Defendants’ right to defend this matter confirms that no
sanction short of dismissal would be effective. Shaw has chosen
to be defiant and obstructive in pursuit of her case and there
is no prospect that giving her another chance would result in
anything other than a waste of time and resources.
6. Defendants’ meritorious defenses
This final Poulis factor also weighs in favor of dismissal
because Defendants have a meritorious defense to Plaintiff
Shaw’s claims that would constitute a complete defense. As the
Poulis Court noted, “A claim, or defense, will be deemed
meritorious when the allegations of the pleadings, if
established at trial, would support recovery by plaintiff or
would constitute a complete defense.” Poulis, 747 F.2d at 86970. Defendants contend that they maintain a meritorious defense
to Plaintiff Shaw’s claims because she consented to the search
of her vehicle. Plaintiffs’ Amended Complaint asserts a slew of
claims against members of the GTPD, including violations of
their 4th Amendment rights against unreasonable searches and
seizures, false arrest, and malicious prosecution. It is clear
from Plaintiffs’ allegations and the attached police reports
that Plaintiff Shaw was never arrested and never charged with a
crime. Accordingly, her claims appear limited to the alleged 4th
Amendment violations. Both police reports attached to the
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Amended Complaint make clear that police observed what they
suspected was criminal activity and Plaintiff Shaw consented to
the search of both her vehicle and that driven by Plaintiff
Smart. In her opposition, Plaintiff Shaw has provided no support
for her contention that the search was not voluntary. Because it
appears that Defendants have a bona fide claim or defense that
ordinarily would deserve to be adjudicated on the merits, the
Court finds that this final Poulis factor weighs in favor of
dismissal.
Having considered the Poulis factors and finding that they
all weigh in favor of dismissal, the Court concludes that
dismissal of Plaintiff Shaw’s suit is warranted.
V.
CONCLUSION
For the reasons discussed above, the Court will grant
Defendants’ motion to dismiss for lack of prosecution and
dismiss Plaintiff Shaw’s suit in its entirety with prejudice. An
accompanying Order will be entered.
August 6, 2014
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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