ROY v. TRIDENT INSURANCE AGENCY

Filing 10

OPINION. Signed by Judge Noel L. Hillman on 10/2/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
FRANK ROY,
Plaintiff,

Civil No. 14-6369 (NLH/KMW)

v.
OPINION
TRIDENT INSURANCE AGENCY,
Defendant.
__________________________________
APPEARANCES:
Frank Roy
998 W. Landis Ave.
Unit 121
Vineland, New Jersey 08360
Plaintiff Pro Se
Jason J. Sweet, Esquire
Reger Rizzo & Darnall LP
2929 Arch Street
13th Floor
Philadelphia, Pennsylvania 19040
Attorneys for Defendant
HILLMAN, District Judge:
This matter comes before the Court sua sponte based upon
the failure of Plaintiff Pro Se, Frank Roy, to prosecute
pursuant to Federal Rule of Civil Procedure 41(b) and Local
Civil Rule 41.1(a).

For the reasons that follow, Plaintiff’s

complaint will be dismissed with prejudice.

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I.

JURISDICTION
Plaintiff’s complaint purports to assert a claim under the

“statute of Civil Rights Act 1991 subchapter that specifies that
it is against the law to intentionally discriminate against a
disabled party.”

As such, it appears that Plaintiff attempted

to assert claims under federal law, in which case jurisdiction
would exist under 28 U.S.C. § 1331.

However, the original

complaint was devoid of any statement concerning jurisdiction,
as the Court previously noted in a May 14, 2015 Opinion.
Plaintiff was therefore directed to file an amended complaint
that contained sufficient factual allegations in support of
Plaintiff’s assertion of jurisdiction.

Plaintiff failed to do

so.
II.

BACKGROUND
On October 15, 2014, Plaintiff initiated this action

against Defendant Trident Insurance Agency (hereafter,
“Trident”) by filing a complaint alleging that Annmarie
Koszowski of Trident and Monica O’Neill, an attorney,
“intentionally presented a fraudulent affidavit to Superior
Court to vacate a legitimate judgment against Travelers
Insurance.”

(Compl. 1.)

Trident filed a motion to dismiss the

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
By Opinion and Order dated May 14, 2015, the Court granted
Trident’s motion to dismiss, finding that the complaint
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contained only conclusory allegations that were insufficient to
satisfy the pleading requirements of Federal Rule of Civil
Procedure 8(a) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563
n.8, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

Nonetheless,

given Plaintiff’s pro se status, the Court provided Plaintiff
another opportunity to state his claim.

The Order issued on May

14, 2015 stated that “if Plaintiff intends to proceed with this
action, he must file an amended complaint within thirty (30)
days of the date of this Order which corrects the deficiencies
addressed in the Opinion entered on this date.”
No. 8] 1.)

(Order [Doc.

The Order further warned that “[f]ailure to comply

with the Court’s directives may result in the dismissal of
Plaintiff’s claims with prejudice.”

(Id. at 1-2.)

Plaintiff has not filed an amended complaint as required by
the Court’s Order and has not requested an extension of time to
do so.

Indeed, Plaintiff has not provided the Court with any

indication that he intends to prosecute his claim against
Trident.
III. DISCUSSION
Pursuant to Federal Rule of Civil Procedure 41(b), the
Court may dismiss an action when a plaintiff fails to prosecute
his case or comply with the court rules or a court order.
R. Civ. P. 41(b).

Local Civil Rule 41.1(a) similarly provides

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Fed.

that the Court must dismiss a case that has been pending for
more than 120 days without any proceedings.

L. Civ. R. 41.1(a).

Generally, when deciding whether to dismiss a case for a
plaintiff’s failure to prosecute, the Court must consider the
six factors set forth in Poulis v. State Farm Fire and Casualty
Co., 747 F.2d 863, 868 (3d Cir. 1984).

These 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.

The Court notes that “when a litigant’s conduct makes
adjudication of the case impossible, [a] balancing under Poulis
is unnecessary.”

McLaren v. N.J. Dept. of Educ., 462 F. App’x

148 (3d Cir. 2012); see also Spain v. Gallegos, 26 F.3d 439, 455
(3d Cir. 1994).

In this case, there is presently no operative

complaint upon which the parties may proceed, and Plaintiff has
failed to file an amended complaint in accordance with the May
14, 2015 Order.

As such, Plaintiff has done nothing to

prosecute his case.

Plaintiff’s conduct has thus made

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adjudication of this case impossible and, on this basis alone,
warrants dismissal of the action.
Additionally, the Court finds that the Poulis factors
support dismissal of Plaintiff’s complaint with prejudice at
this time as Plaintiff has failed to comply with a court order
and has failed to prosecute his case.
The Court specifically finds that the first Poulis factor,
Plaintiff’s personal responsibility, weighs in favor of
dismissal.

Plaintiff is acting pro se, and cannot attribute

blame to counsel or anyone else for the failure to move this
case forward.
The Court also finds that the prejudice to Defendant -– the
second Poulis factor -- caused by Plaintiff’s failure to abide
by the May 14, 2015 Order calls for dismissal of this action
with prejudice.

“Evidence of prejudice to an adversary ‘would

bear substantial weight in support of a dismissal[.]’”

Adams v.

Trustees of N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d
863, 873-74 (3d Cir. 1994) (internal citation omitted).

Because

of Plaintiff’s failure to file an amended complaint, Defendant
is unable to work toward a resolution of this matter on the
merits.

As such, Plaintiff’s conduct wholly frustrates and

delays the resolution of this case, and Defendant is prejudiced
by Plaintiff’s continuing inaction.
With respect to the third Poulis factor, Plaintiff’s
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history of dilatoriness, Plaintiff has failed on only one
occasion to timely prosecute his case, but the lack of courtordered participation by Plaintiff evidences that he is unable
or unwilling to undertake the obligations of a lawsuit at this
time.
The Court finds that the fourth Poulis factor, willfulness
of the conduct at issue, also supports dismissal of this action.
Although the Court has no evidence that Plaintiff acted in bad
faith, the May 14, 2015 Order clearly required him to file an
amended complaint within thirty days if he intended to pursue
his claims against Trident.

Plaintiff’s failure to timely file

an amended complaint, as well as his failure to contact the
Court or otherwise attempt to prosecute this matter in more than
120 days, provides sufficient evidence of a willful failure to
participate in this matter.
The Court further finds that the fifth Poulis factor, “the
effectiveness of sanctions other than dismissal, which entails
an analysis of alternative sanctions[,]” also supports dismissal
of this case.

Poulis, 747 F.2d at 868–69.

“‘The Third Circuit

has identified a number of alternative sanctions available to a
court, including ‘a warning, a formal reprimand, placing the
case at the bottom of the calendar, a fine, the imposition of
costs or attorney fees or the preclusion of claims or
defenses.’’”

Hayes v. Nestor, No. Civ. A. 09-6092, 2013 WL
6

5176703, at *5 (D.N.J. Sept. 12, 2013) (citations omitted).
Here, other than filing a complaint, Plaintiff has done nothing
to prosecute his case.

In light of Plaintiff's non-compliance

with a court order and his failure to contact the Court in more
than 120 days, it does not appear that Plaintiff intends to
pursue his claim against Trident.

Plaintiff was warned that

failure to file an amended complaint may result in the dismissal
of his claims with prejudice, but even this warning has not
prompted Plaintiff to prosecute his case.

Therefore, the Court

finds that lesser sanctions would have no effect on Plaintiff's
compliance with court orders, or his interest in litigating this
case.

See Genesis Eldercare Rehab. Servs., Inc. v. Beam Mgmt.,

No. Civ. A. 07–1843, 2008 WL 1376526, at *2 (E.D. Pa. Apr. 9,
2008) (finding that sanctions other than dismissal would be
insufficient when defendant “demonstrated its complete neglect
of its obligations as a litigant in this matter.”).

The Court

finds that the fifth Poulis factor thus weighs in favor of
dismissal.
Finally, the sixth Poulis factor -- the meritoriousness of
Plaintiff’s claims -- also supports dismissal of this case with
prejudice.

The Court already concluded that the complaint

failed to state a claim for relief and dismissed the pleading
without prejudice.

Plaintiff has not amended the complaint to

provide the Court with any basis to conclude that Plaintiff can
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assert a meritorious claim in this case.
IV.

CONCLUSION
For the foregoing reasons, the Court finds that the six

factors set forth in Poulis v. State Farm Fire and Casualty Co.,
747 F.2d 863, 868 (3d Cir. 1984), on balance weigh in favor of
dismissal, and it will therefore sua sponte dismiss the case at
this time.
An Order consistent with this Opinion will be entered. 

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Date: _October 2, 2015__
At Camden, New Jersey

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