HANEY et al v. HARRAH'S ATLANTIC CITY OPERATING COMPANY, LLC et al
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 5/9/2013. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DAVID HANEY, et al.,
Plaintiff,
Civil Action
No. 12-1297 (JBS-KMW)
v.
HARRAH’S ATLANTIC CITY
OPERATING COMPANY, LLC, et
al.,
MEMORANDUM OPINION
Defendants.
SIMANDLE, Chief Judge:
This matter comes before the Court on Defendants’ motion to
dismiss Plaintiff Crystal Haney’s claims and award attorney’s
fees and costs. [Docket Item 10.] Plaintiff Crystal Haney has
not appeared for noticed depositions and has not opposed
Defendants’ motion to dismiss. The Court held a telephonic oral
argument on May 8, 2013. Defendants’ motion will be granted. The
Court finds as follows:
1.
Plaintiffs David Haney and Crytal Haney, husband and
wife, seek damages from Defendant Harrah’s Atlantic City
Operating Company and various other Harrah’s companies for
injuries that David Haney sustained on July 16, 2010 in a slip
and fall. (Compl. ¶¶ 19-20.) David Haney asserts a negligence
claim; Crystal Haney asserts a loss of consortium claim.
2.
On March 22, 2012, Defendants noticed David and
Crystal Haney to appear for depositions on June 13, 2012.
[Docket Item 10-5 at 3.] David Haney’s deposition was
rescheduled and occurred on November 16, 2012. (Def. Br. Supp.
Mot. Dismiss (“Def. Br.”) at 4.) Crystal Haney “failed to
appear.” (Def. Br. at 4.) Defendants noticed Crystal Haney to
appear at deposition on January 16, 2013. [Docket Item 10-7 at
3.] She adjourned the deposition. (Def. Br. at 4.) On January
23, 2013, Defendants’ counsel sent Plaintiffs’ counsel a letter
confirming that Crystal Haney’s deposition was rescheduled for
March 7, 2013. [Docket Item 10-8 at 2.] Counsel had scheduled
multiple depositions for March 7, 2013, all of which were
rescheduled for March 14, 2013 due to inclement weather. [Docket
Item 10-9.]
3.
Plaintiff’s counsel emailed Defendants’ counsel, “With
regard to Crystal Haney, she is not responding to my telephone
calls. I do not believe she will be attending.” [Docket Item 109 at 2.] Defendants’ counsel wrote a letter stating, “This will
confirm that you have advised my office that Plaintiff Crystal
Haney will not be appearing for her deposition scheduled for
tomorrow, March 14, 2013.” [Docket Item 10-10 at 2.]
4.
At oral argument, Plaintiff’s counsel said he informed
Crystal Haney that she was obliged to appear for deposition and
that, if she did not appear, her claim would be subject to
dismissal.
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5.
At his deposition on November 16, 2012, David Haney
testified that he and Crystal Haney were married on February 25,
2010 and that they were “[s]eparated really from the day we got
married, but honestly, it probably would have been 18 months ago
. . . .” [Docket Item 10-6 at 3; David Haney Dep. 12:11-22.]
6.
Defendants argue that Crystal Haney has not attempted
to reschedule her deposition, even though the pretrial factual
deadline was February 28, 2013, and, therefore, that her claim
should be dismissed with prejudice.
7.
Plaintiffs’ counsel stated at oral argument that he
has been unable to make verbal contact with Crystal Haney, but
that he mailed her a copy of Defendants’ motion to dismiss,
along with a cover letter explaining that her loss of consortium
claim was subject to dismissal. Plaintiffs’ counsel is confident
that Ms. Haney is aware of the dismissal motion. He has received
no response from his client Crystal Haney.
8.
Defendants’ counsel and Plaintiffs’ counsel stipulated
at oral argument that Plaintiffs would consent to dismissal of
Crystal Haney’s claim and that Defendants would withdraw their
motion for attorneys’ fees. The Court will therefore dismiss
Defendants’ motion for counsel fees as moot because it has been
withdrawn.
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9.
In addition to counsel’s agreement to dismiss Crystal
Haney’s claim, the Court has independently reviewed the merits
of dismissal to protect Crystal Haney’s interests, despite her
absence. The Third Circuit outlined several factors for
considering dismissal as a sanction: (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;
and (6) the meritoriousness of the claim or defense. Poulis v.
State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). A
review of these factors shows that dismissal with prejudice is
proper.
10.
Despite multiple efforts over the course of one year
to schedule her deposition, Crystal Haney failed to appear. Her
failure to appear is her personal responsibility because
Plaintiffs’ counsel tried to contact her and informed her that
failure to appear for deposition could result in dismissal. Her
failure to appear at deposition prejudices her adversary because
Defendants need to depose her to learn how her husband’s injury
has impacted her. Her repeated failures to appear and to respond
to Plaintiffs’ counsel’s attempts to contact her show a history
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of dilatoriness. Her conduct shows that her failure to
participate in this litigation is willful. She has been informed
of the pendency of this dismissal motion and has offered no
promise to appear for a deposition and indeed no willingness to
continue to pursue her consortium claim. Both Plaintiffs’ and
Defendants’ counsel agree that dismissal is the appropriate
sanction, and it appears that her loss of consortium claim has
little merit due to her separation from her husband. The Court
is persuaded that dismissal is proper.
11.
The Court will grant Defendants’ motion to dismiss
Crystal Haney’s claims and dismiss as moot Defendants’ motion to
award fees and costs. The accompanying Order will be entered.
May 9, 2013
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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