KLEMMER et al v. TRUMP ENTERTAINMENT RESORTS et al

Filing 14

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 3/23/2016. (TH, )

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

MARYANNE KLEMMER, BRUCE
PEARLMAN, and GERALD FLORIO,
Plaintiffs,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 14-5319 (JBS/KMW)

v.
TRUMP ENTERTAINMENT RESORTS, A
DELAWARE CORPORATION, TRUMP
TAJ MAHAL ASSOCIATES, LLC
A NEW JERSEY CORPORATION, JOHN
M. DONNELLY, ESQUIRE, JOHN DOE
DECISION-MAKERS (PLURAL 1-10),
and JOHN DOE INDIVIDUALS WHO
SECRETLY RECORDED PLAINTIFFS
(PLURAL 1-10),

MEMORANDUM OPINION

Defendants.
SIMANDLE, Chief Judge:
In this civil rights action, Plaintiffs Maryanne Klemmer,
Bruce Pearlman, and Gerald Florio (hereinafter, “Plaintiffs”)
generally allege that their former employer, Defendants Trump
Entertainment Resorts and Trump Taj Mahal Associates, LLC
(hereinafter, the “Trump Defendants”), terminated Plaintiffs’
employment in retaliation for their participation in an internal
investigation and otherwise on account of their ages.

(See

generally Compl. at 1-30.)
On September 12, 2014, this Court administratively
terminated this action without prejudice due to the Bankruptcy
filing of Defendant Trump Entertainment Resorts (and all of its

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subsidiaries).

[See Docket Item 5.]

On June 15, 2015, however,

the Bankruptcy Court issued an Order permitting Plaintiffs to
“‘proceed with their Complaint solely against co-Defendant John
M. Donnelly, Esquire.’” (Donnelly Cert. at ¶ 10 (citation
omitted).)

Despite permission to pursue these claims,

Plaintiffs and their counsel have not sought to reinstate this
action as against Defendant John M. Donnelly (hereinafter,
“Defendant Donnelly” and together with the Trump Defendants,
“Defendants”), nor otherwise expressed any intention of pursuing
their claims.
As a result, Defendant requests that the Court dismiss this
action as against him, on the grounds that their failure to
prosecute prejudices his interests (in terms of his defense of
this litigation and in his capacity as a practicing lawyer).
[See Docket Items 6, 8, & 13.]

Plaintiffs have filed no

opposition to Defendant Donnelly’s requests, have not responded
to two separate Court Orders relative to the request for
dismissal, and have otherwise failed to demonstrate an ongoing
interest in pursuing this litigation against Defendant Donnelly.
However, this deficiency may be explained, at least in part, by
counsel for Plaintiffs’ recent suspension from practicing law
before this Court.
Plaintiffs have, since inception of this action, been
represented by Richard L. Press, Esq., of the Law Offices of
2 

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Richard L. Press & Associates, LLC.

As a result, this Court, as

recounted below, twice directed counsel for Plaintiffs to
respond to Defendant Donnelly’s request for dismissal.
Docket Items 7 & 10.]

[See

Despite electronic service of these Court

Orders, counsel for Plaintiffs filed no response.

As explained

below, however, the Court takes judicial notice of Mr. Press’
one-year suspension from the practice of law effective June 9,
2015, and recognizes that the deficiencies at issue here may
have flowed, at least in part, from this development.

[See

Docket Item 29 in Misc. No. 11-86 (MAS), aff’d, ___ F. App’x
____ (3d Cir. 2016).]
Against that backdrop, the issue presented in Defendant
Donnelly’s dismissal request concerns whether the present
procedural circumstances of this action warrant the dismissal of
their claims against Defendant Donnelly, and, if so, whether the
dismissal should be without prejudice in light of Plaintiffs’
counsel’s one-year suspension from the practice of law.
For the reasons that follow, Defendant’s unopposed request
for dismissal will be granted in part, and Plaintiffs’ claims
against Defendant Donnelly will be dismissed without prejudice.
The Court finds as follows:

3 

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1.

Factual and Procedural Background.1

Plaintiffs filed

the Complaint at issue here in New Jersey state court on July
25, 2014, alleging that their termination resulting from
discrimination and their participation in protected activity,
and that Defendants conducted an unlawful investigation into a
variety of employee allegations.

(See generally Compl.)

As a

result, Plaintiffs seek declaratory, injunctive, and monetary
relief under the Law Against Discrimination, N.J.S.A. § 10:5-12
and the Wiretapping and Electronic Surveillance Control Act,
N.J.S.A. §§ 2A:156A-1, -37 (hereinafter, “WESCA”), among other
common law and state statutory authority.2
2.

(See generally id.)

Following removal,3 this Court administratively

terminated this action in its entirety, on account of the Trump
Defendants’ bankruptcy petition and the automatic stay
provisions of 11 U.S.C. § 362.

[See Docket Item 5.]

1

For purposes of the pending dismissal request, the Court
accepts as true the version of events set forth in Plaintiffs’
Complaint. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.
2014); see also ACR Energy Partners, LLC v. Polo N. Country
Club, Inc., ___ F. Supp. 3d ____, Nos. 15-2677 & 15-5324, 2015
WL 6757574, at *1 n.2 (D.N.J. 2015) (same).
2 Plaintiffs’ Complaint directs two Counts at Defendant Donnelly,
stemming from his role in conducting an internal investigation:
one for violations of the WESCA (seemingly because he recorded
his interviews of employees), and the other for allegedly
committing related ethical breaches (on the ground that his
interviews somehow created an attorney-client relationship
between himself and Plaintiffs). (See Compl. at 17-28 (Counts
Five and Six).)
3 Defendants removed this action to this federal Court on August
25, 2014. [See Docket Item 1.]
4 

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Nevertheless, on June 15, 2015, the Bankruptcy Court granted
Plaintiffs, through their current counsel, limited relief from
the automatic stay in order to proceed with their Complaint as
against Defendant Donnelly.

See In re Trump Entm’t Resorts,

Inc., Case No. 14-12103 (KG) (Bankr. D. Del.).

Despite

permission, Plaintiffs have taken no action relative to their
claims against Defendant Donnelly.

To the contrary, counsel for

Plaintiffs has purportedly expressed no “object[ion] to a
dismissal of [Defendant] Donnelly with prejudice.”4

(Donnelly

Cert. at ¶ 13.)
3.

As a result, on December 30, 2015, Defendant Donnelly

asked the Court to “enter an Order Administratively reinstating
and dismissing the claims against [Defendant] Donnelly, (but not
Trump) with prejudice.”

[Docket Item 6.]

This Court, in turn,

entered a Text Order on the same day directing counsel for
Plaintiffs to file a response to Defendant Donnelly’s letter or,
in lieu of a letter, an appropriate consent order by no later
than January 8, 2016.

[See Docket Item 7.]

Nevertheless,

counsel filed no response, nor otherwise evidenced any ongoing

4

Defendant Donnelly’s submissions detail his multiple efforts to
discuss the procedural circumstances of this action with Mr.
Press [see, e.g., Docket Item 13], and Defendant Donnelly’s
certification creates the impression that he corresponded with
Mr. Press subsequent to his suspension. (See, e.g., Donnelly
Cert. at ¶ 13.) The precise nature and timing of these
communications remains unclear.
5 

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interest in pursuing claims against Defendant Donnelly.

As a

result, Defendant Donnelly restated his request for dismissal on
January 28, 2016.
4.

[See Docket Item 8.]

In view of this second request, on February 2, 2016,

this Court entered an Order directing counsel for Plaintiffs to
“SHOW CAUSE in writing, and by no later than February 15, 2016,
why this action should not be dismissed with prejudice as
against Defendant Donnelly for failure to prosecute under
Federal Rule of Civil Procedure 41(b).”
(emphases in original).]

[Docket Item 10

Beyond this, the Court emphasized that

“counsel for Plaintiffs’ failure to respond to [the] Order to
Show Cause may result in the dismissal of Plaintiffs’ claims
against Defendant Donnelly with prejudice, and without any
additional notice.”5

[Id. (emphasis in original).]

Counsel for

Plaintiffs filed no response, nor otherwise relayed to the Court
who from the Law Offices of Richard L. Press & Associates, LLC
(or elsewhere) intends to handle this action during the
remainder of Mr. Press’ suspension.
5.

Standard of Review Applicable to Defendant’s Request

for Dismissal.

Federal Rule of Civil Procedure 41(b) permits a

5

In addition, the Court directed Defendant Donnelly to “file a
supplemental submission addressing the standard governing
dismissals for failure to prosecute,” which the Court has
considered in connection with his request for dismissal. [See
Docket Item 13.]
6 

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defendant to seek the dismissal of a claim for failure to
prosecute and/or to comply with a Court order.
P. 41(b).

See FED. R. CIV.

In addressing a motion to dismiss on these grounds,

prevailing case law typically obligates district courts within
this Circuit to evaluate the six factors set forth in Poulis v.
State Farm Fire & Casualty Co., 747 F.2d 864, 867-68 (3d Cir.
1984).

When “a litigant’s conduct makes adjudication of the

case impossible,” however, a Poulis balancing becomes
“unnecessary.”

Shipman v. Del., 381 F. App’x 162, 164 (3d Cir.

2010); see also Abulkhair v. New Century Fin. Servs., Inc., 467
F. App’x 151, 153 (3d Cir. 2012) (affirming the district court’s
dismissal of plaintiff’s complaint, despite the fact that the
court did not “appear to weigh the Poulis factors”); Sebrell ex
rel. Sebrell v. Phila. Police Dep’t., 159 F. App’x 371, 373–74
(3d Cir. 2005) (citing Guyer v. Beard, 907 F.2d 1424, 1429–30
(3d Cir. 1990)).
6.

This case presents circumstances that nearly match

those that require no extensive analysis under Poulis.

Indeed,

aside from simply failing to pursue their claims against
Defendant Donnelly in the nine months following the Bankruptcy
Court’s stay relief, the law firm of counsel for Plaintiffs has,
on two separate occasions, ignored Court Orders specifically
directed at determining Plaintiffs’ intentions vis-à-vis
Defendant Donnelly.

[See, e.g., Docket Items 7 & 10.]
7 

In that

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way, Plaintiffs’ inaction, through counsel and in their own
right, leaves it “impossible” at this juncture to adjudicate
their claims against Defendant Donnelly, Abulkhair, 467 F. App’x
at 153, and appears to reflect their disinterest in pursuing
this action against him.

These circumstances arguably warrant,

by themselves, the dismissal of Plaintiffs’ claims against
Defendant Donnelly.

See Abulkhair, 467 F. App’x at 153 (finding

a Poulis balancing “not necessary” in light of plaintiff’s
repeated failures to respond and to comply with the court’s
orders); Shipman, 381 F. App’x at 164 (finding “dismissal for
failure to prosecute” warranted, notwithstanding the fact that
“the District Court did not make explicit findings concerning
the Poulis factors”); TBI Unlimited, LLC v. Clear Cut Lawn
Decisions, LLC, 12-3355, 2016 WL 716874, at *3 (D.N.J. Feb. 22,
2016) (finding a Poulis balancing unnecessary).
7.

Nevertheless, a balancing of the Poulis factors, too,

favors dismissal.

Under Poulis, the Court must evaluate:

(1) The extent of the party’s personal responsibility;
(2) the prejudice to the adversary as a result of the
dilatory conduct; (3) whether the party has exhibited
a history of dilatoriness; (4) whether the party or
the attorney acted willfully or in bad faith; (5) the
effectiveness of sanctions short of dismissal; and (6)
the overall merit, if any, of the claim(s).
See Poulis, 747 F.2d at 868.

Though not every Poulis factor

needs to be satisfied in order to justify dismissal, see Briscoe

8 

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v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008), this Court will
address each factor in turn.
8.

Extent of Plaintiffs’ Personal Responsibility.

As

explained above, Plaintiffs have, since inception, pursued this
action through counsel.

This Court, however, takes judicial

notice under Federal Rule of Evidence 201(b) of the fact that,
on June 9, 2015, this Court suspended counsel for Plaintiffs,
Richard L. Press, Esq., from the practice of law in this federal
District for a period of one year.6
No. 11-86(MAS).]

[See Docket Item 29 in Misc.

Although Mr. Press pursued this case, before

his suspension, with the help of at least one associate, this
Court cannot, given these circumstances, conclude that
Plaintiffs themselves bear personal responsibility for the
failure of their (now suspended) counsel to comply with Court
Orders.7

Indeed, the record contains no evidence of Plaintiffs’

personal involvement in the prosecution of this litigation, much
less any knowledge on their part of Mr. Press’ inability to
continue on as their counsel.

In that way, although a “client

cannot always avoid the consequences of the acts or omissions of

6

The U.S. Court of Appeals for the Third Circuit affirmed this
District’s Disciplinary Order on February 29, 2016.
7 Despite his suspension, Mr. Press’ law firm still appears as
counsel of record for Plaintiffs in this action. It is
troubling that this firm has apparently taken no steps to
protect its clients’ interests in this matter, either by having
an associate handle the case or by obtaining substitute counsel.
9 

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its counsel,” Poulis, 747 F.2d at 868 (citing Link v. Wabash
R.R., 370 U.S. 626, 633 (1962)), the uniqueness of Mr. Press’
suspension places the pending dismissal request in an unusual
posture.

More specifically, given the dearth of information on

Plaintiffs’ personal responsibility and the suspension of Mr.
Press, the first Poulis factor weighs against dismissal.

See

Meridian Nursing & Rehab at Shrewsbury v. Ctrs. for Medicare &
Medicaid Servs., 555 F. App’x 177, 181 (3d Cir. 2014) (finding
the factor neutral, if not slightly weighing against dismissal,
under similar circumstances); but see Aldsworth v. State Farm
Fire & Cas. Co., No. 13-2941, 2015 WL 915487, at *3 (M.D. Pa.
Mar. 3, 2015) (finding that the first factor favored dismissal,
despite the lack of information on the plaintiffs’ personal
responsibility).
9.

Prejudice to Defendant Donnelly.

With respect to this

factor, prejudice typically includes “‘the irretrievable loss of
evidence, the inevitable dimming of witnesses’ memories, or the
excessive and possibly irremediable burdens or costs imposed on
the opposing party.’”
omitted).

Briscoe, 538 F.3d at 259 (citation

Prejudice for the purpose of Poulis, however, does

not mean irreparable harm.

See id. (citation omitted); see also

Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003).
Rather, “the burden imposed by impeding a party’s ability to

10 

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prepare effectively a full and complete trial strategy [rises to
a] sufficiently prejudicial” level.
10.

Ware, 3222 F.3d at 222.

Here, the law firm of counsel for Plaintiffs’ failures

to respond and to pursue this action beyond the pleadings, have
blocked Defendant Donnelly, a practicing attorney, from mounting
any defense to Plaintiffs’ claims.

See Hayes v. Nestor, No. 09-

6092, 2013 WL 5176703, at *4 (D.N.J. Sept. 12, 2013) (finding
that plaintiff’s conduct rendered “it unnecessarily difficult
for [d]efendants to litigate the case”).

Even more critically,

though, his inability to challenge Plaintiffs’ claim on the
merits have “stymied” his “effort[s] to waive in[] as an
attorney in another state,” and may impact the premium
calculation for his firm’s malpractice insurance.

(Def.

Donnelly’s Br. at 7; see also Ex. F to Def. Donnelly’s Br.)

In

that way, the prejudice to Defendant Donnelly from the lack of
traction in this action extends beyond the confines of this
single litigation.

These circumstances, in turn, present

obvious prejudice to Defendant Donnelly, who should not bear the
brunt of Plaintiffs’ failure to litigate their own claims
(through counsel or otherwise).

See Patel v. Patel, No. 14-

2949, 2015 WL 4391304, at *4 (E.D. Pa. July 17, 2015) (finding
prejudice because the defendant could not “properly defend an
action that [p]laintiff [did] not adequately prosecute”).

As a

result, the second Poulis factor “‘heavily’” favors dismissal.
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Chiarulli v. Taylor, No. 08-4400, 2010 WL 1371944, at *3 (D.N.J.
Mar. 31, 2010) (citation omitted) (explaining that a “finding of
prejudice to the opposing party under Poulis ‘weighs heavily in
favor of dismissal’”), adopted by, 2010 WL 1566316 (D.N.J. Apr.
16, 2010).
11.

History of Dilatoriness.

With this factor, a “party’s

problematic acts must be evaluated in light of its behavior over
the life of the case.”

Adams v. Trustees of N.J. Brewery Emps.

Pension Trust Fund, 29 F.3d 863, 875 (3d Cir. 1994)
Nevertheless, “repeated delay or delinquency” or “consistent
tardiness in complying with court orders” constitutes “a history
of dilatoriness.”

Id. at 874 (citations omitted).

In this

case, Mr. Press’ law firm has consistently disregarded Court
Orders, and Plaintiffs themselves have shown no interest in this
litigation since the Bankruptcy Court’s stay relief (over nine
months ago).

This behavior therefore amounts to far more than

tardiness or delinquency; Plaintiffs and their counsel have been
entirely absent and nonresponsive, despite prompting from this
Court.

This inaction reflects, at a minimum, a history of

dilatory action.

See TBI Unlimited, LLC, 2016 WL 716874, at *4

(finding a history of dilatoriness from the defendants’ failure
to comply with the court’s order).
Poulis factor favors dismissal.

12 

For that reason, the third

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12.

Willfulness or Flagrant Bad Faith.

With this factor,

the Court must look for “‘willful or contumacious behavior,”
involving “‘intentional or self-serving behavior,’” rather than
negligence or simply a failure to move with dispatch.

Briscoe,

538 F.3d at 262 (quoting Adams, 29 F.3d at 875 (citation
omitted)).

Where, however, “the record remains unclear as to

whether a party acted in bad faith, a consistent failure to obey
orders of the court, at the very least, renders [the] actions
willful for the purposes of the fourth Poulis factor.”
Hunt-Ruble v. Lord, Worrell & Richter, Inc., No. 10-4520, 2012
WL 2340418, at *5 (D.N.J. June 19, 2012) (citations and internal
quotation marks omitted).
13.

Here, Mr. Press’ law firm has offered no explanation

for its failure to comply with the Court’s Orders, and the lack
of communication has stalled any progression of this case
relative to Defendant Donnelly.

Even with Mr. Press’

suspension, the failure of his law firm to participate in this
action certainly rises to a level above mere negligence.

See

TBI Unlimited, LLC, 2016 WL 716874, at *4 (finding the failure
to comply with a single court order demonstrated “willful
disobedience”); Patel, 2015 WL 4391304, at *4 (finding that
similar circumstances demonstrated bad faith); Hunt-Ruble, 2012
WL 2340418, at *5 (finding that a failure to comply with court
orders “constitute[d] a willful failure to participate in th[e]
13 

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litigation”).

Consequently, the fourth Poulis factor weighs in

favor of dismissal.
14.

Effectiveness of Alternative Sanctions.

In addressing

the fifth Poulis factor, the Court recognizes, at the outset,
that dismissal constitutes a “drastic sanction,” reserved only
for appropriate cases.

Poulis, 747 F.2d at 867-68.

Here,

though, Plaintiffs (and their counsel) have consistently shirked
their obligations under two separate Court Orders [see Docket
Items 7 & 10], including, most especially, one which directed
counsel for Plaintiffs to “SHOW CAUSE ... why this action should
not be dismissed with prejudice as against Defendant Donnelly”
and emphasized, in bold print, that a “failure to respond ...
may result in the dismissal of Plaintiffs’ claims against
Defendant Donnelly with prejudice, and without any additional
notice.”

[Docket Item 10 (emphasis in original).]

Even with

Mr. Press’ suspension, his firm remains responsible for staffing
this action and ensuring compliance with Court orders.

Against

this backdrop, Plaintiffs’ multiple failures create the
impression that sanctions short of dismissal would prove futile
in compelling them to act any differently.

See TBI Unlimited,

LLC, 2016 WL 716874, at *4 (finding “no effective alternatives
to dismissal”); Williams, 2011 WL 2119095, at *8 (D.N.J. May 20,
2011) (reasoning that, “alternative sanctions would not prompt
[p]laintiff to comply,” given his failure to do so, despite
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“notice that sanctions may be imposed”).

Given these

circumstances, the fifth Poulis factor favors dismissal.
15.

Meritoriousness of Plaintiffs’ Claims.

In addressing

the merit of a claim, courts generally consider whether “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 869-70.

Here, however, the Court

administratively terminated this action at the outset of the
litigation.

Because this action remains in its early phases

(pre-dismissal motion practice and discovery), the Court lacks
sufficient grounds to evaluate the meritoriousness of
Plaintiffs’ claims.

For that reason, the Court finds the sixth

Poulis factor neutral.

See Caffrey v. Scott, No. 10-5055, 2011

WL 4528169, at *4 n.1 (D.N.J. Sept. 28, 2011) (finding the sixth
Poulis factor “largely neutral” because the Court did not
possess “sufficient grounds to evaluate the meritoriousness” of
plaintiff’s claims at that stage of the proceeding).
16.

Conclusion.

In this case, the Poulis factors, on

balance, favor the dismissal of Plaintiffs’ claims against
Defendant Donnelly.

However, the absence of any showing on

Plaintiffs’ personal responsibility, coupled with Mr. Press’
suspension, support a sanction short of dismissal with
prejudice.

Rather, Defendant Donnelly’s request for dismissal

will be granted in part, and Plaintiffs’ claims against him will
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be dismissed without prejudice.

Under the unique circumstances

presented here, a dismissal without prejudice best recognizes
the lack of showing on Plaintiffs’ personal responsibility, the
uncertainty created by Mr. Press’ suspension, and the prejudice
to Defendant Donnelly from the lengthy continuation of this
litigation during the pendency of the Trump Defendants’
bankruptcy.
17.

The Court wishes to advise the three Plaintiffs

directly of the reasons for dismissal of their case against
Defendant Donnelly.

Their Complaint, however, bears only the

address of counsel, and the few documents filed in this removed
action do not appear to identify Plaintiffs’ actual addresses.
Moreover, although the Court will direct the Clerk of Court to
mail a copy of this decision to the Law Offices of Richard L.
Press & Associates, LLC, the Court has little confidence that
the Law Firm (or one of its associates) would transmit this
Court’s decision to Plaintiffs, despite its obligation to do so.
For that reason, the Court will require Defendant Donnelly to
use his best efforts to mail a copy of this Court’s Memorandum
Opinion and Order to the last known addresses of the three
Plaintiffs, and if successful, to then file proof of service on
the docket.

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18.

An accompanying Order will be entered.

March 23, 2016
Date

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

17