IVANOVS et al v. BAYADA HOME HEALTH CARE, INC.
MEMORANDUM OPINION & ORDER granting 187 Motion to Dismiss Non-Responsive andUncooperative Opt-In Plaintiff, Alexandra Carpilio with prejudice. Signed by Judge Noel L. Hillman on 6/22/2022. (alb)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SONYA IVANOVS and KATIE
HOFFMAN, ON BEHALF OF
THEMSELVES AND ALL OTHER
SIMILARLY SITUATED EMPLOYEES,
MEMORANDUM OPINION & ORDER
BAYADA HOME HEALTH CARE,
HILLMAN, District Judge
Before the Court is the unopposed Motion [Docket Number
187] by Defendant Bayada Home Health Care, Inc. (“Bayada”),
pursuant to Federal Rule of Civil Procedure 37(b) to dismiss the
claims of Non-Responsive and Uncooperative Opt-In Plaintiff,
Alexandra Carpilio, for her failure to respond to discovery; and
WHEREAS, Bayada previously moved before this Court seeking
to dismiss Carpilio and other non-responsive, opt-in Plaintiffs
for their repeated failure to respond to written discovery
served on January 30, 2020; and
WHEREAS, on May 7, 2021, the Court issued an Order to Show
Cause directing Carpilio and other similarly non-responsive,
opt-in plaintiffs to show cause within 15 days as to why their
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claims should not be dismissed, [Dkt. No. 158]; and
WHEREAS, on May 24, 2021, Carpilio and the other nonresponsive, opt-in Plaintiffs responded to the Order to Show
Cause, with Carpilio explaining (1) her contact information had
changed such that she had not received any prior communications
from Plaintiffs’ counsel related to discovery and was not aware
of her obligations, (2) she provided her updated contact
information, (3) she expressed her willingness to provide
discovery responses, (4) she requested an additional two weeks
to provide complete discovery responses, and (5) she expressed a
desire to remain in the case; and
WHEREAS, on June 28, 2021, the Court issued an Opinion and
Order [Dkt. Nos. 169 and 170 respectively] denying with out
prejudice Bayada’s motion to dismiss Carpilio and several other
non-responsive, opt-in Plaintiffs.
The Court’s found that
“preclusion of [Carpilio’s] participation in this case is not
warranted,” and held that Carpilio “shall have fourteen days
from the issuance of this Opinion and accompanying Order to
provide the discovery requested by Defendant.
fails to do so without leave of Court, this Opinion provides
notice that [her] claims will be subject to dismissal.”
Opinion, [Dkt. No. 169], at 11-12; and
WHEREAS, on October 19, 2021, Bayada again moved to dismiss
Carpilio pursuant to Rule 37(b) for failing to meet her
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According to Bayada, Carpilio has yet to
furnish written discovery responses and is therefore in
violation of the Court’s June 28, 2021 Order, which plainly
states that noncompliance would subject her claim to dismissal;
WHEREAS, Bayada contacted Plaintiffs’ counsel regarding its
plan to file the instant motion to dismiss Carpilio for her
failure to participate in discovery.
To which, on August 27,
2021, Counsel for Carpilio, Alan L. Quiles, responded in an
email that Plaintiffs “take no position on the Motion and do not
plan to submit opposition to her dismissal in accordance with
the prior orders of the Court[;]” and
WHEREAS, to date, no opposition from Plaintiffs’ counsel
nor any response from Carpilio (or anyone) has been presented to
the Court; and
THEREFORE, for the reasons expressed in the Court’s June
28, 2021 Opinion and Order, and in consideration of Bayada’s
unopposed Motion to Dismiss Carpilio for failing to respond to
discovery and violating the Court’s June 28, 2021 Order, the
Court finds that dismissal is the appropriate sanction.
making this determination, the Court notes that dismissal is an
appropriate sanction to a party that “fails to obey an order to
provide or permit discovery.”
Civ. P. 37(d)(3).
Fed. R. Civ. P. 37(b); Fed. R.
In ordering the sanction of dismissal, the
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Court finds that the six Poulis factors when applied against the
present record weigh in favor of dismissal.
See Poulis v. State
Farm Casualty Co., 747 F.2d 863, 870 (3d Cir. 1984).
The extent of the party’s personal responsibility:
Carpilio failed to respond to discovery and violated
the Court’s June 28, 2021 Order despite her
representation that she would otherwise comply with
her discovery obligations.
The record supports the
conclusion that Carpilio is personally responsible for
failing to pursue her claims.
The prejudice to the adversary caused by the failure
to meet scheduling orders and respond to discovery:
Without Carpilio’s participation in her claims,
including responding to Bayada’s discovery requests,
Bayada has no ability to defend itself against those
A history of dilatoriness:
The same analysis as the
personal responsibility factor applies to this factor,
though to be sure, Carpilio has demonstrated a history
of dilatoriness based on her repeated failure to
respond to discovery and the Court’s prior Orders.
Whether the conduct of the party or the attorney was
willful or in bad faith: despite her failure to follow
through, Carpilio represented to the Court that she
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would respond to discovery, thus the Court has no
information to conclude Carpilio’s failure to
participate in the case was not willful.
The effectiveness of sanctions other than dismissal or
default judgment, which entails an analysis of
alternative sanctions: Carpilio’s repeated failure to
respond to discovery for over two years, which
includes her representation to the Court that she
would respond to discovery, and violation of the
Court’s Order thus compels this Court’s determination
that no other sanction but dismissal would be
The meritoriousness of the claim or defense:
Carpilio’s responses to Bayada’s discovery requests
and her participation in her case, the Court cannot
determine whether her claims have any merit.
IT IS on this
day of June, 2022,
ORDERED that Bayada’s Motion to Dismiss Non-Responsive and
Uncooperative Opt-In Plaintiff, Alexandra Carpilio [Dkt. No.
187], be, and the same hereby is, GRANTED with prejudice.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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