SIMPSON v. BRAND ENERGY SERVICES, LLC et al

Filing 32

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 1/5/2015. (drw)

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

SHANE SIMPSON,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 14-184 (JBS/JS)

v.
BRAND ENERGY SERVICES, LLC,

MEMORANDUM OPINION
Defendant.

SIMANDLE, Chief Judge:
This matter comes before the Court on Defendant Brand
Energy Services, LLC’s unopposed motion for sanctions of
dismissal. [Docket Item 29.] In this action, Plaintiff Shane
Simpson, a former employee of Brand Energy alleges, inter alia,
that he was discriminated against on the basis of disability in
violation of the New Jersey Law Against Discrimination
(“NJLAD”). Brand Energy seeks dismissal of Plaintiff’s claims
under Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d
Cir. 1984) because Mr. Simpson has repeatedly ignored the
Court’s orders and failed to appear at court-scheduled hearings.
For the reasons discussed below, the Court will grant Brand
Energy’s motion and dismiss Plaintiff’s case in its entirety
with prejudice.
1.

On or about November 27, 2013, Plaintiff Shane Simpson

filed this action against Brand Energy in the Superior Court of

New Jersey, Camden County, Docket No. L-4802-13. Brand Energy
timely removed this action to the U.S. District Court for the
District of New Jersey pursuant to 28 U.S.C. §§ 1441 and 1446.
[Docket Item 1.]
2.

Plaintiff was initially represented in this action by

Deborah L. Mains, Esq., Kevin M. Costello, Esq., and Daniel T.
Silverman, Esq. of the law offices of Costello & Mains, P.C.
However, on May 6, 2014, Costello & Mains filed a motion to
withdraw as Plaintiff’s attorneys.1 [Docket Item 13.]
3.

The Honorable Joel Schneider scheduled a hearing on

the motion to withdraw for June 5, 2014 and ordered Plaintiff to
appear. [Docket Item 16.] Judge Schneider held the hearing on
June 5, 2014 with Deborah Mains, Esq. appearing for Plaintiff and
Alexander Nemiroff, Esq. appearing for Brand Energy. [Docket
Item 18.] Plaintiff did not appear. Judge Schneider continued
the hearing until July 8, 2014 and again ordered Plaintiff to
appear. [Docket Item 19.] Plaintiff failed to appear at the
hearing for a second time. [Docket Item 22.]
4.

Judge Schneider granted the motion to withdraw noting

that “there has been an irretrievable breakdown of the attorneyclient relationship between [Ms. Mains] and Plaintiff.” [Docket

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Ms. Mains certified that she served upon Plaintiff by mail the
motion to withdraw and the Court’s letter order scheduling the
hearing and ordering Plaintiff’s appearance. [Docket Item 17.]
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Item 24.] Judge Schneider directed Ms. Mains to serve a copy of
the order on Plaintiff by mail and to file a proof of service
with the Clerk of Court. Plaintiff was to secure new counsel by
August 15, 2014 or be deemed to be proceeding pro se.
Additionally, Judge Schneider directed Plaintiff to respond to
all outstanding interrogatories, document requests, and requests
for admission by August 29, 2014.2 Plaintiff’s former counsel
certified that Plaintiff was served with the Court’s order and
provided the Court with Plaintiff’s last known address and phone
number. [Docket Item 25.]
5.

On September 2, 2014, Brand Energy filed a motion to

compel discovery seeking an order requiring Plaintiff to respond
to interrogatories, document demands, and requests for
admission. [Docket Item 26.] Judge Schneider, by order entered
October 16, 2014, granted Brand Energy’s motion and ordered
Plaintiff to respond to its discovery requests by October 31,
2014. [Docket Item 28.]
6.

On November 3, 2014, Brand Energy, noting that

Plaintiff failed to comply with the Court October 16, 2014

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Pursuant to the initial scheduling order, initial written
discovery requests were to be served by March 3, 2014. [Docket
Item 10.] On June 11, 2014, upon request of Plaintiff’s counsel
during the pendency of the motion to withdraw, Judge Schneider
entered an order staying all discovery until further notice,
including Defendant’s “recently served” requests for admission.
[Docket Item 20.]
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order, filed the instant motion for sanctions of dismissal
pursuant to Rule 37(b), Fed. R. Civ. P., and Poulis v. State
Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984). [Docket Item
29.]
7.

This Court, noting that Plaintiff had not submitted

opposition to Brand Energy’s motion for sanctions and that he
was proceeding pro se, ordered Plaintiff to file opposition to
Brand Energy’s motion or indicate that it is unopposed no later
than December 5, 2014.3 [Docket Item 31.] The Court, having
received no response from Plaintiff, deems Brand Energy’s motion
for sanctions unopposed.
8.

Pursuant to Rule 37(b)(2)(A)(v), Fed. R. Civ. P., a

court may dismiss an action where a plaintiff fails to obey a
discovery order. In determining whether dismissal is an
appropriate sanction for violation of a discovery order, courts
will generally consider the factors outlined in Poulis v. State
Farm Fire and Casualty, 747 F.2d 863 (3d Cir. 1984), although
such analysis is not always necessary. Dover v. Diguglielmo, 181
F. App’x 234, 237–38 (3d Cir. 2006) (“[A] Poulis analysis is
unnecessary when a litigant’s willful conduct prevents the case
from going forward, thereby giving a district court no option
but dismissal.”). The six Poulis factors are: (1) the extent of

3

The Clerk of Court mailed this letter to Plaintiff via first
class mail to his last known address.
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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). The Third
Circuit has “required consideration of the Poulis factors when a
district court dismisses a case pursuant to Rule 37(b) for
failure to respond to discovery.” Knoll v. City of Allentown,
707 F.3d 406, 409 (3d Cir. 2013).
9.

Brand Energy requests that the Court dismiss

Plaintiff’s suit in its entirety as a sanction for Plaintiff’s
repeated failure to comply with the Court’s orders and to
respond to Defendant’s discovery requests. A review of the
Poulis factors shows that dismissal with prejudice is proper.
10.

Plaintiff, as a pro se litigant, is solely responsible

for his 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.”). Plaintiff
is undoubtedly responsible for his willful disregard of four
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Court orders: two directing him to appear at hearings and two
ordering him to respond to Brand Energy’s discovery requests. As
such, the Court finds that Plaintiff is personally responsible
for his failure to comply with the Court’s orders.
11.

The prejudice to Brand Energy caused by Plaintiff’s

failure to comply with the Court’s orders 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).
“Oftentimes, this type of prejudice involves disputes between
the parties on discovery matters because the defendants were
deprived of necessary information or had to expend costs to
obtain court orders for compliance.” Id. See also Poulis, 747
F.2d at 868 (finding prejudice to defendant where plaintiff
filed neither answers nor objections to interrogatories and
defense counsel was forced to file a motion to compel answers).
In the present case, Plaintiff’s refusal to provide discovery
responses has caused delays and obliged Brand Energy to litigate
this case without the necessary information to formulate a
defense, forcing Defendant to file a motion to compel and the
instant request for sanctions. Additionally, Defendant has
expended significant time and resources in this matter,
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including appearances at hearings necessitated by Plaintiff’s
lack of cooperation in this litigation. Therefore, the Court
finds that Plaintiff’s conduct has prejudiced Defendant.
12.

Plaintiff has ignored four Court orders directing him

to appear and respond to discovery requests. Indeed, Plaintiff,
in this nearly one-year-old case, has yet to respond to Brand
Energy’s discovery requests. Therefore, Plaintiff has a welldocumented history of dilatoriness and noncompliance with court
orders that weighs in favor of dismissal. In fact, there is no
indication in the record from Mr. Simpson that he wishes to
pursue this case at this time.
13.

Plaintiff’s conduct in this case, or lack thereof, has

been willful and in bad faith. Plaintiff’s willful failure to
participate in this litigation is manifest in the withdrawal of
prior counsel and his refusal to respond to discovery requests.
Further, his neglect of Court orders directing him to appear at
the hearings on prior counsel’s withdrawal motion demonstrates
bad faith and disregard for the Court’s authority and this case.
14.

Because Plaintiff has repeatedly ignored the Court’s

orders, the Court finds that dismissal is the only effective
sanction. Plaintiff has been afforded ample opportunity to
respond to Defendant’s discovery requests and has failed to
provide responses despite the Court’s repeated orders. The Court

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foresees little prospect that giving Plaintiff another chance
would elicit a change of behavior.
15.

The final Poulis factor also weighs in favor of

dismissal because Brand Energy appears to have meritorious
defenses to Plaintiff’s claims that would constitute complete
defenses. 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. Brand Energy contends that Plaintiff does not have a
disability, that it did not discriminate against Plaintiff in
any way, and that it did not fail to accommodate him. Brand
Energy asserts that its client required Plaintiff to submit to a
drug test at the client’s construction site. When Plaintiff’s
urine tested positive for barbiturates, Brand Energy terminated
his employment. If established at trial, the above would
constitute a complete defense. See Vargo v. Nat’l Exch. Carriers
Ass’n, Inc., 376 N.J. Super. 364, 383 (App. Div. 2005)
(affirming entry summary judgment in favor of defendant on NJLAD
claims, among others, where job applicant tested positive for
morphine despite his claims that the positive result was due to
his prescription medicines).
16.

Indeed, even without a finding that Brand Energy has

meritorious defenses to Plaintiff’s claims, the Poulis factors
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weigh in favor of dismissal. See Hicks v. Feeney, 850 F.2d 152,
156 (3d Cir. 1988) (“Not all of [the Poulis] factors need be met
for a district court to find dismissal is warranted.”); Pak-Vak
Sys. v. T&S Products, Civ. 05-3518 (FSH), 2006 WL 2844149, at *1
n.1 (D.N.J. Sept. 6, 2006) report and recommendation adopted,
Civ. 05-3518 (SRC), 2006 WL 2844162 (D.N.J. Oct. 3, 2006)
(concluding that dismissal was warranted without any finding as
to a meritorious defense because prejudice to defendant was
clear due to plaintiff’s failure to comply with discovery
obligations).
17.

Having considered the Poulis factors and finding that

they weigh in favor of dismissal, the Court concludes that
dismissal of Plaintiff’s Complaint is warranted. The dismissal
will be with prejudice because there is no indication that
Plaintiff, despite his seeming abandonment of his case, wishes
to pursue it and could remedy his past defaults and cure the
prejudice he has caused to the Defendant.

January 5, 2015
Date

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

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