HICKS v. CAMDEN COUNTY et al
Filing
32
MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 1/24/2018. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
RICHARD A. HICKS, JR.,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 16-3436(JBS/JS)
v.
CAMDEN COUNTY, et al.,
MEMORANDUM OPINION
Defendants.
SIMANDLE, District Judge:
This matter comes before the Court by way of the unopposed
motion of Defendant Officer Carl Tucker (hereinafter, “Officer
Tucker” or “Defendant Tucker”) for sanctions of dismissal.
[Docket Item 30.] In this action, Plaintiff Richard A. Hicks,
Jr. (hereinafter, “Plaintiff”) brought claims against Camden
County, the Camden County Policy Department, Officer Tucker, and
John Does 1-10 (collectively, “Defendants”), arising from an
incident between Plaintiff and Officer Tucker at a bus stop.
[Docket Item 3.] The Court previously dismissed claims against
all Defendants, except Defendant Tucker. [Docket Item 8.]
Defendant Tucker now seeks dismissal of Plaintiff’s remaining
claims against him under Fed. R. Civ. P. 37 and 41 because
Plaintiff has repeatedly ignored the Court’s orders and failed
to appear at court-scheduled hearings.
The principal issue before the Court is whether the factors
delineated in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863
(3d Cir. 1984) weigh in favor of dismissal of the Amended
Complaint. For the reasons discussed below, the Court will grant
Defendant Tucker’s motion and dismiss Plaintiff’s case in its
entirety with prejudice. The Court finds as follows:
1.
On June 14, 2016, Plaintiff, represented by attorney
Robert E. Rue, Esq., filed this action in the United States
District Court for the District of New Jersey against Defendants
Camden County, Camden County Police Department, and Officer
Tucker. [Docket Item 1.] Plaintiff subsequently filed an Amended
Complaint as a matter of right. [Docket Item 3.] Defendants
filed a motion to dismiss the Amended Complaint pursuant to Fed.
R. Civ. P. 12(b)(6) [Docket Item 4], which the Court granted
except for Counts I, VI, and VII against Officer Tucker. [Docket
Items 7 & 8.] On January 26, 2017, Defendant Tucker filed an
Answer and Affirmative Defenses. [Docket Item 10.] Shortly
thereafter, the Honorable Joel Schneider, U.S.M.J., entered a
Standing Order and Scheduling Order, which required, among other
things, that all discovery be completed by August 31, 2017.
[Docket Items 12 & 13.]
2.
Defendant Tucker served Plaintiff with initial Rule 26
disclosures and written discovery requests, but received no
response from Plaintiff for several months. [See Docket Items 15
2
and 16.] At Defendant Tucker’s request [Docket Item 19], Judge
Schneider ordered Plaintiff to serve his Rule 26 disclosures and
respond to Defendant’s written discovery requests by May 30,
2017. [Docket Item 20.] Plaintiff failed to produce any
documents by the May 30 deadline. [Docket Item 21.] After
holding a telephone conference on June 8, 20171 [Docket Item 23],
Judge Schneider issued an Order to Show Cause requiring
Plaintiff to appear before the Court, in person or by phone, on
July 18, 2017, to “show cause why he did not comply with the
Court’s February 26, 2017 and May 22, 2017 Orders [Doc. Nos. 13,
20], and to explain why sanctions should not be imposed,
including the dismissal of his case.” [Docket Item 24.]
Plaintiff and his attorney failed to appear at the July 18, 2017
Show Cause Hearing.2 [Docket Item 25.] Judge Schneider
subsequently granted Defendant Tucker leave to file a motion to
1
While it is not clear from the docket [see Docket Items 23 and
24], it appears that Plaintiff’s counsel, Robert Rue, Esq.,
participated in this telephone conference. (Def. Br. at 3.)
2
Attorney Rue’s failure to appear as ordered at the July 18th
hearing is unexplained; he apparently undertook no efforts to
advise Judge Schneider that he would be absent from the hearing,
nor did he seek leave to be excused or to withdraw as attorney
of record in this case. Similarly, Mr. Rue’s lack of response to
this motion is unacceptable as a matter of professionalism and
duties to this Court. Since Defendant Tucker does not seek
sanctions against attorney Rue in this motion, this Court need
not decide how far short of the mark Mr. Rue’s conduct fell.
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dismiss pursuant to Fed. R. Civ. P. 37 and 41 [Docket Item 28],
which Defendant Tucker timely filed. [Docket Item 30.]
3.
Pursuant to Rule 37(b)(2), a court may dismiss an
action where a plaintiff fails to obey a discovery order. In
addition, under Fed. R. Civ. P. 41(b), the Court may enter an
order dismissing an action with prejudice for a plaintiff’s
failure to prosecute a case.
4.
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). The
six Poulis factors are: (1) the extent of 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).
5.
Defendant Tucker 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.
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6.
The first Poulis factor weighs in favor of dismissal,
as Plaintiff has played a significant role in failing to respond
to discovery and the Court’s orders. As the record reflects,
Defendant Tucker made several attempts to secure discovery
between February and May 2017, before seeking judicial
intervention. [See Docket Items 15, 16 & 19.] Moreover,
according to Defendant Tucker, Plaintiff’s counsel informed the
Court during the June 8, 2017 conference call [Docket Item 23]
that discovery had not yet been produced due to his client’s
lack of cooperation. (Def. Br. at 3.) As a result of this call,
Judge Schneider issued an Order to Show Cause against Plaintiff
giving him an opportunity to appear in person or by phone to
explain his actions. [Docket Item 24.] Plaintiff failed to
appear at the Show Cause Hearing [Docket Item 25], thereby
making him personally responsible for failing to comply with the
Court’s orders and his discovery obligations.
7.
The second Poulis factor likewise weighs in favor of
dismissal, since Defendant Tucker has been prejudiced by
Plaintiff’s repeated failure to comply with the Court’s orders
and his discovery obligations. 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 v. Klaus, 538 F.3d 252, 259 (3d Cir.
5
2008) (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 Rule 26 disclosures and
written discovery requests has caused several months of delay
and obliged Defendant Tucker to litigate this case without the
necessary information to fully formulate a defense, culminating
in the pending dismissal motion. Additionally, Defendant Tucker
has expended significant time and resources in this matter,
including appearances at hearings and telephone conferences
necessitated by Plaintiff’s lack of cooperation and compliance
with the directives of Judge Schneider. Therefore, the Court
finds that Plaintiff’s conduct has prejudiced Defendant Tucker.
8.
Again, the third factor weighs in favor of Defendant
Tucker, as Plaintiff has ignored at least three court orders
directing him to appear and/or respond to discovery requests.
Indeed, Plaintiff, in this more-than-one-year-old case, has yet
to supply required disclosures and to respond to Defendant
Tucker’s discovery requests. Therefore, Plaintiff has a well6
documented history of dilatoriness and noncompliance with court
orders that weighs in favor of dismissal. In fact, there is no
indication in the record from Plaintiff that he actually wishes
to pursue his case at this time.
9.
The fourth factor is regarded as neutral, as the Court
will not infer Plaintiff’s conduct has been willful or that he
has acted in bad faith, but notes that Plaintiff has made a
choice not to appear and to prosecute his own case. While
Plaintiff’s attorney apparently represented to Judge Schneider
during the June 8, 2017 telephone conference that his client has
been reluctant to cooperate with discovery requests, such
representation is not in the record before the Court and the
undersigned has not independently confirmed that this was said.
On the other hand, the record is silent of any claim that
Plaintiff was unable to comply with the Court’s directives.
10.
The fifth factor weighs in favor of dismissal because,
at this point, the undersigned finds that dismissal is the only
effective sanction. As the Third Circuit has instructed,
“[d]istrict court judges, confronted with litigants who
flagrantly violated or ignore court orders, often have no
appropriate or efficacious recourse other than dismissal of the
complaint with prejudice.” Mindek v. Rigatti, 964 F.2d 1369,
1373 (3d Cir. 1992). Here, Plaintiff has been afforded ample
opportunity to respond to Defendant Tucker’s discovery requests,
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but has failed to provide responses despite the Court’s repeated
orders. Plaintiff’s counsel has failed to even attempt to
explain or ameliorate his client’s conduct. The Court foresees
little prospect that giving Plaintiff another bite at the apple
would elicit a change of behavior. It is not the duty of the
Court to invite litigants to comply with standard obligations
and orders. Accordingly, dismissal with prejudice is the only
effective sanction in this instance.
11.
The final Poulis factor also weighs in favor of
dismissal because Defendant Tucker appears to have meritorious
defenses to Plaintiff’s claims that would constitute complete
defenses if proven at trial. 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 869-70. Before any discovery has
actually been taken, Defendant Tucker contends that Plaintiff’s
claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), that
Plaintiff’s Section 1983 claim fails because Defendant Tucker
did not violate Plaintiff’s constitutional rights and the force
used was objectively reasonable, that Plaintiff cannot prove
that Defendant Tucker committed an assault and battery, and that
Officer Tucker is entitled to qualified immunity. If established
at trial, any of these arguments would constitute a complete
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defense. Even without the Court finding that Defendant Tucker
has meritorious defenses to Plaintiff’s claim, however, the
Poulis factors still strongly weigh in favor of dismissal.
See Hicks, 850 F.2d at 156 (“Not all of [the Poulis] factors
need be met for a district court to find dismissal is
warranted.”).
12.
Having considered the Poulis factors and finding that
they weigh in favor of dismissal, the Court concludes that
dismissal of the Amended Complaint is warranted. The dismissal
will be with prejudice because there is no indication that
Plaintiff wishes to pursue his case or could remedy his past
defaults and cure the prejudice he has caused to the Defendant.
An accompanying Order shall be entered.
January 24, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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