MANSARAY et al v. PUMPHREY et al

Filing 21

OPINION. Signed by Chief Judge Jerome B. Simandle on 8/5/2013. (tf, )

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

ABDUL MANSARAY, et al.
Plaintiffs,

HON. JEROME B. SIMANDLE
Civil No. 12-6262 (JBS/AMD)

v.
OPINION
WILLIAM PUMPHREY, et al.,
Defendants.

APPEARANCES:
George R. Szymanski, Esq.
LAW OFFICES OF GEORGE R. SZYMANSKI
1370 Chews Landing Road
Laurel Springs, NJ 08021
Attorney for Plaintiffs
Dean R. Wittman, Esq.
Michael J. Huntowski, Esq.
Matthew B. Wieliczko, Esq.
ZELLER & WIELICZKO LLP
120 Haddontowne Court
Cherry Hill, NJ 08034
Attorneys for Defendants

SIMANDLE, Chief Judge:
I.

INTRODUCTION
Before the Court is Defendants’ unopposed motion to dismiss

the Complaint pursuant to Fed. R. Civ. P. 16(f) for Plaintiffs’
repeated failure to comply with the Court’s scheduling orders and
Defendants’ discovery requests. [Docket Item 18-2.] Plaintiffs
have missed a series of discovery deadlines, have failed to
provide certifications to their answers to interrogatories, and

Plaintiffs’ counsel has informed the Court that his clients have
not responded to his repeated requests to cooperate with the
litigation and “apparently . . . have no desire to pursue this
lawsuit.” [Docket Item 20.] For the reasons explained below, the
motion to dismiss is granted.
II. Background
Plaintiffs Abdul Mansaray and Tyrik Bond1 allege that in
2010 they were arrested without probable cause by Defendants
William Pumphrey and Anthony McVeigh, a patrolman and detective
sergeant of the Berlin Township Police Department, respectively.
(Compl. ¶¶ 3-5.) Plaintiffs also allege that the Defendants
searched their car and persons without a warrant, maliciously
prosecuted them and conspired to deprive them of their
Constitutional rights. (Compl. ¶ 10.) Plaintiffs allege that they
were incarcerated for a few days, and, as a result, lost their
jobs and suffered economic losses and emotional distress. (Compl.
¶¶ 7-8.) The criminal charges2 were administratively dismissed
several months later. (Compl. ¶ 9.) Plaintiffs brought this
action in state court, for violations of the Fourth, Fifth and

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Mr. Bond’s first name is spelled at least three different
ways in different documents: Tyrik (caption of the Complaint),
Tyreek (July 25, 2013, letter by Plaintiffs’ counsel), and Tyriek
(September 13, 2012, letter by Plaintiffs’ counsel).
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Mr. Mansaray and Mr. Bond were charged with “hindering the
apprehension of another person, and conspiracy to distribute
drugs.” (Compl. ¶ 5) (internal citations omitted).
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Fourteenth Amendments to the U.S. Constitution, pursuant to 42
U.S.C. §§ 1983, 1985(3) and 1986. (Compl. ¶ 10.) Defendants
removed the action to this Court because the Complaint raised
questions of federal law. [Docket Item 1.]
On November 1, 2012, Magistrate Judge Ann Marie Donio
entered the first of several scheduling orders in this matter.
[Docket Item 7.] Upon request of Plaintiff’s counsel, George R.
Szymanski, Esq., the initial scheduling conference was postponed
to November 26, 2012. [Id.] This and all subsequent scheduling
orders included the warning that: “THE FAILURE OF A PARTY OR
ATTORNEY TO OBEY THIS ORDER MAY RESULT IN THE IMPOSITION OF
SANCTIONS UNDER FED. R. CIV. P. 16(f).” [Id.] On November 26,
2012, Judge Donio ordered that initial written discovery requests
be served by December 21, 2012, and extended the pretrial factual
discovery to June 28, 2013. [Docket Item 8.]
Defendants served Plaintiffs’ attorney with demands for
discovery on November 26, 2012. (Wittman Aff. [Docket Item 18-1]
¶ 5.) At a status conference on February 15, 2013, Plaintiffs’
responses were overdue. (Id. ¶ 6.) Judge Donio ordered Plaintiffs
to provide responses to discovery requests by March 15, 2013.
[Docket Item 11.] No responses were served by that date. On April
8, 2013, Plaintiffs’ counsel provided Plaintiff Bond’s
uncertified answers to interrogatories, but did not produce
responses for Plaintiff Mansaray. (Wittman Aff. ¶¶ 8-9.) Judge

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Donio entered a new scheduling order requiring Plaintiffs to
certify their answers to interrogatories by April 22, 2013, and
Defendants to respond to outstanding discovery requests by the
same date. [Docket Item 13.] Defendants filed their responses on
April 17, 2013, in accordance with the order. (Wittman Aff. ¶
13.)
By May 10, 2013, Plaintiffs still had not provided
certifications, and Defense counsel Matthew B. Wieliczko, Esq.,
requested leave to file a motion to dismiss. [Docket Item 15.]
Judge Donio entered a text order on the docket ordering “[a]ny
motion to dismiss shall be filed no later than July 12, 2013.”
[Docket Item 17.] Defendants filed the present motion on July 2,
2013. [Docket Item 18.] On July 25, 2013, Plaintiffs’ counsel
wrote a letter to the Court, with a copy to opposing counsel,
stating that
I do not intend to file any opposition [to the motion to
dismiss] because apparently the plaintiffs have no desire
to pursue this lawsuit. Shortly before and after I filed
the complaint, I have tried on multiple occasions to
communicate with Mr. Mansaray and Mr. Bond, by phone and
in writing, in order to enlist their cooperation in
pursuing this litigation, but they will not respond to
me.
[Docket Item 20.] In writing such a letter, Mr. Szymanski acted
with professionalism and satisfied his duty of candor to the
Court. An attorney who endures the indifference of his or her
clients to their litigation obligations, despite repeated
attempts to secure the clients’ cooperation, has the duty to
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disclose that circumstance to the adversary and to the Court.
III. Discussion
Fed. R. Civ. P. 16(f) provides that “the court may issue any
just orders, including those authorized by Rule 37(b)(2)(A)(ii)(vii), if a party or its attorney: . . . (C) fails to obey a
scheduling or other pretrial order.” Rule 37(b)(2)(A) provides
that “[i]f a party . . . fails to obey an order to provide or
permit discovery,” the court may issue further just orders,
including:
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or in
part;
(vi) rendering a default judgment against the disobedient
party; or
(vii) treating as contempt of court the failure to obey
any order except an order to submit to a physical or
mental examination.
Fed. R. Civ. P. 37(b)(2)(A).
Although the Court has “inherent authority to control its
docket” and may dismiss a case pursuant to that authority or as
provided under the Federal Rules of Civil Procedure, “‘dismissals
with prejudice . . . are drastic sanctions[.]’” Knoll v. City of
Allentown, 707 F.3d 406, 409 (3d Cir. 2013) (quoting Poulis v.
State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984)); see
also Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962) (“when

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circumstances make such action appropriate, a District Court may
dismiss a complaint for failure to prosecute even without
affording notice of its intention to do so or providing an
adversary hearing before acting”). The Court must consider the
six factors enumerated in Poulis before dismissing a case
pursuant to its inherent authority or Rules 16(f) & 37(b). Knoll,
707 F.3d at 409. The Poulis factors are:
(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, 747 F.2d at 868 (emphasis in original).
These factors, on balance, weigh heavily in favor of
dismissal. The Plaintiffs’ failure to provide certified answers
to interrogatories (or, in the case of Mr. Mansaray, any answers
at all) appears to be solely the responsibility of the parties,
and not their counsel, who now represents that his repeated
attempts to contact and gain the cooperation of his clients have
failed. Plaintiffs have missed a series of discovery deadlines in
contravention of Judge Donio’s scheduling orders and have yet to
provide certified answers to interrogatories that were due months
ago. Plaintiffs thus have a history of dilatoriness. Plaintiffs’
disappearance from this litigation appears to be at least
willful, if not necessarily in bad faith. They have not responded
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to their attorney’s written and oral requests, and neither the
Court nor Plaintiffs’ counsel have received any indication from
the Plaintiffs that they desire to seek relief through this
lawsuit. Judge Donio repeatedly exercised her discretion toward
leniency and extended deadlines to allow Plaintiffs to comply
with discovery requests and orders; however, there is no
indication that more extensions or alternate sanctions would be
sufficient to gain compliance. As Defendants observe, “the matter
cannot be litigated without the participation of Plaintiffs.”
(Def. Mot. Br. at 5.)
Defendants argue that they have suffered prejudice from
Plaintiffs’ dilatoriness because “[w]ithout Plaintiffs’ discovery
responses, Defendants cannot adequately prepare their defenses to
Plaintiffs’ claims.” (Def. Mot. Br. at 4.) It is a “fundamental
maxim of discovery that ‘[m]utual knowledge of all the relevant
facts gathered by both parties is essential to proper
litigation.’” Société Nationale Industrielle Aérospatiale v. U.S.
Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 540 n.25 (1987)
(quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). Defendants
have also been prejudiced by having to provide discovery and
defend against allegations that are no longer being pursued, at
considerable expenditure of time and money, including
participating in several scheduling and discovery conferences
with the Magistrate Judge. Defendants certainly are prejudiced by

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Plaintiffs’ silence.
Finally, Poulis requires the Court to consider the merits of
Plaintiffs’ claims. Plaintiffs’ Complaint, originally filed in
New Jersey Superior Court, is only 10 paragraphs long and
contains scant detail about the alleged offenses of Defendants.
[Docket Item 1, Ex. A.] The Complaint alleges in conclusory
fashion that Plaintiffs were arrested without probable cause and
that they were falsely imprisoned and maliciously prosecuted.
(Compl. ¶¶ 5, 10.) The Court cannot determine from the factual
content of the Complaint whether, if proved, Plaintiffs’ claim
would be meritorious. If the Complaint’s legal conclusions are
accepted as true, Plaintiffs potentially have a meritorious
claim. Of course, the Court need not accept mere legal
conclusions in a complaint as true for purposes of evaluating the
strength or validity of a pleading. See Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (“a court considering a motion to dismiss
can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption
of truth”). This factor is, at best, neutral in the Poulis
analysis.
Overall, the Poulis analysis indicates that dismissal is
warranted. See Dos Santos v. Borough of Flemington, No. 10-1348,
2012 WL 406402, at *7-*8 (D.N.J. Jan. 4, 2012), adopted by 2012
WL 405717 (D.N.J. Feb. 8, 2012) (recommending dismissal pursuant

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to Rules 16(f) & 37(b) when the first five Poulis factors weighed
in favor of the defendants and the court made no finding as to
the merit of the plaintiff’s claims; the plaintiff failed to
cooperate in the discovery process). The Court cannot overlook
the fact that Plaintiffs have repeatedly failed to comply with
scheduling orders and supply discovery ordered by the Court.
Plaintiffs are subject to sanctions under Rules 16(f) &
37(b)(2)(A). That Mr. Mansaray and Mr. Bond have been absent or
uncooperative in prosecuting their own Complaint militates in
favor of dismissal. Therefore, the Defendants’ unopposed motion
to dismiss the Complaint with prejudice is granted.
IV. Conclusion
For the reasons explained above, the unopposed motion to
dismiss is granted. An accompanying Order will be entered.

August 5, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge