CRA, INC. v. OZITUS INTERNATIONAL, INC. et al

Filing 118

MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 4/4/2019. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CRA, INC.,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action No.
16-5632 (JBS-AMD)

OZITUS INTERNATIONAL, INC.,
Defendant.

MEMORANDUM OPINION

SIMANDLE, District Judge:
This matter is before the Court on the unopposed motion of
Defendant Ozitus International, Inc.’s (“Defendant”) to dismiss the
Complaint

with

prejudice.

[Docket

Item

117.]

For

the

reasons

explained below, the Court will grant Defendant’s motion and dismiss
the Complaint with prejudice. The Court finds as follows:
1.

In

generally

this

alleges

action,
that

Plaintiff

Defendant

CRA,

Inc.

tortiously

(“Plaintiff”)

interfered

with

Plaintiff’s contracts with the County of Camden and with contracts
between Plaintiff and its employees, induced Plaintiff’s employees
to breach their confidentiality and non-compete agreements with
Plaintiff, and wrongfully hired Plaintiff’s employees to provide the
same services to the County of Camden that Plaintiff had provided
before

Defendant

allegedly

relationship. [Docket Item 1.]

interfered

with

that

business

2.

Plaintiff is a Delaware corporation with its principal

place of business located in Virginia. [Docket Item 1 at ¶ 1.]
Pursuant to the common law and 28 U.S.C. § 1654, a corporation may
appear in the federal courts only through licensed counsel and may
not proceed pro se. See Rowland v. California Men’s Colony, Unit II
Men’s Advisory Council, 506 U.S. 194, 201 (1993) (citing Osborn v.
President of Bank of United States, 9 Wheat. 738, 829 (1824)).
3.

Mr. Robert C. Brady, Esq. of Gibbons, PC, signed the

Complaint and became counsel of record for Plaintiff. [Docket Item
1-1.] Thereafter, Mr. Michael S. O’Reilly, Esq. and Mr. Christopher
P. Fox, Esq. of O’Reilly Stoutenberg Richards, LLP, applied for, and
were granted, admission to represent Plaintiff as pro hac vice
counsel. [Docket Items 20 & 21]. On October 3, 2017, Mr. O’Reilly
and Mr. Fox withdrew their pro hac vice appearances in this matter.
[Docket Items 78 & 79.] Ms. Roya Vasseghi, Esq., and Ms. Mariam
Tadros, Esq. were subsequently admitted pro hac vice to represent
Plaintiff with Mr. Brady [Docket Item 105], but filed an Emergency
Motion to Withdraw as counsel on the basis of “irreconcilable
differences regarding the representation.” [Docket Item 108.] That
motion was granted by the Honorable Ann Marie Donio on October 1,
2018. [Docket Item 110.] That left Mr. Brady as the sole attorney
representing Plaintiff in this case.
4.

On December 12, 2018, Mr. Brady filed his own motion to

withdraw as attorney [Docket Item 113], wherein he certified that
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“issues arose regarding the non-payment of Gibbons P.C.’s invoices”
and that, on October 31, 2018, Plaintiff’s new Chairman, General
Bruce Lawlor (U.S. Army, retired) sent Mr. Brady an email stating in
part: “[k]indly accept this as a notice for you to cease all work on
behalf of CRA, Inc.” [Docket Item 113-1 at ¶¶ 4, 7.] According to
Mr. Brady, after receiving that email, he had several conversations
with General Lawlor where the need for Plaintiff to retain new
counsel was discussed and General Lawlor “has advised that Jennifer
T. Langley, Esq. of Inman & Strickler P.L.C., a member of the
Virginia Bar, with offices located in Virginia Beach, Virginia has
been retained on behalf of CRA, Inc.,” and “she plans to make an
appearance, but first needs to retain New Jersey Counsel.” [Id. at
¶ 8.] As of the date of Mr. Brady’s December 12, 2018 filing, “this
has not happened.” [Id.]
5.

On January 10, 2019, the Honorable Ann Marie Donio entered

an Order allowing Mr. Brady to withdraw as counsel for Plaintiff.
[Docket Item 114.] Judge Donio ordered that Plaintiff “shall obtain
an attorney and have new counsel enter an appearance on its behalf
in this case within thirty (30) days from the date of entry of this
Order.” [Id.] (emphasis in original). Judge Donio further ordered
that Gibbons, P.C. shall serve a copy of this Order on Plaintiff and
file

proof

of

such

service

on

the

docket.

[Id.]

Mr.

Brady

subsequently filed proof of service on the docket, indicating that
the

Order

was

delivered

to

General
3

Lawler

and

signed

for

by

authorized agent Nicole Luster. [Docket Item 116.] The deadline for
Plaintiff to retain new counsel and for entry of their appearance on
the docket expired on February 9, 2019, without any action being
taken.
6.

On March 5, 2019, Defendant filed the instant motion to

dismiss with prejudice. [Docket Item 117.] While Defendant does not
cite a rule in support of its motion, the Court surmises that
Defendant seeks dismissal of the Complaint for Plaintiff’s failure
to prosecute pursuant to Rule 41(b), FED. R. CIV. P.
7.

Under Rule 41(b), which governs involuntary dismissal, a

defendant may move to dismiss an action or any claims against it
where the plaintiff either fails to prosecute the case or fails to
comply with court rules or orders. FED. R. CIV. P. 41(b). The Rule
expressly provides that a dismissal order pursuant to 41(b) “operates
as

an

adjudication

on

the

merits”

unless

the

order

states

otherwise. Id. “Failure to prosecute does not require that the party
take affirmative steps to delay the case. A failure to comply with
court orders, failure to respond to discovery or other failure to
act is sufficient to constitute lack of prosecution.” Melvin v.
Astbury, 2006 WL 1084225, at *2 (D.N.J. Apr. 21, 2006) (citing Adams
v. Trs. of the New Jersey Brewery Emps.' Pension Trust Fund, 29 F.3d
863, 875 (3d Cir.

1994); Nat'l Hockey League v. Metro. Hockey

Club, 427 U.S. 639, 640–641 (1976)).

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8.

The Third Circuit requires “that a district court must

consider [the Poulis factors] before dismissing an action for failure
to prosecute.” Clarke v. Nicholson, 153 F. App’x 69, 72 (3d Cir.
2005) (citing Poulis v. State Farm Fire and Casualty Co., 747 F.2d
863, 868 (3d Cir. 1984)). The six Poulis factors include:
(1)

the extent of the nonmoving party's personal
responsibility;

(2)

the prejudice to the moving party 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 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.

Clarke, 153 F. App’x at 72. However, the Court need not engage in an
analysis of the six Poulis factors in cases where a party willfully
abandons her case or otherwise makes adjudication of the matter
impossible. See, e.g., Sebrell ex rel. Sebrell v. Phila. Police
Dep't, 159 F. App’x 371, 373–74 (3d Cir. 2005); Spain v. Gallegos, 26
F.3d 439, 454–55 (3d Cir. 1994); see also Abulkhair v. New Century
Fin. Servs., Inc., 467 F. App’x 151, 153 (3d Cir. 2012). Moreover,
in analyzing the Poulis factors, the Court bears in mind that
dismissal with prejudice, as requested by Defendant here, is a
“drastic sanction[], termed ‘extreme’ by the Supreme Court, . . .
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[which should be reserved for cases comparable to . . . ‘flagrant
bad faith’ and ‘callous disregard.’” Harris v. City of Philadelphia,
47 F.3d 1311, 1330 n.18 (3d Cir. 1995).
9.

As noted above, a corporation may not represent itself pro

se, Plaintiff currently has no attorney in this matter, and more
than 55 days have passed since the expiration of the February 9,
2019 deadline of Judge Donio’s January 10, 2019 Order. Plaintiff has
filed no opposition to this motion and has not sought additional
time to do so, and has, this Court finds, abandoned its case.
Plaintiff appears to have paid no particular attention to prosecuting
this case since October 31, 2018, when Chairman Lawlor directed the
Gibbons firm to cease all work.
10.

Accordingly, the Court will grant Defendant’s motion and

dismiss the Complaint. Because Plaintiff has affirmatively abandoned
its case and taken no steps since October 31, 2018 to resume
prosecuting the case, a further examination of the Poulis factors is
unnecessary. See Sebrell, Spain, and Abulkhair, supra.
11.

For the foregoing reasons, Defendant’s motion to dismiss

will be granted and the Complaint will be dismissed with prejudice.
An accompanying Order will be entered.

April 4, 2019
Date

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

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