BELBRUNO v. PFIZER INC. et al
Filing
22
MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 12/19/13. (gmd, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
STEVEN BELBRUNO,
Civ. No. 05-1682 (KM)
Plaintiff,
MEMORANDUM OPINION
V.
PFIZER INC., PARKE-DAVIS, a
division of Warner-Lambert
Company and Warner-Lambert
Company LLC, WARNER
LAMBERT COMPANY and
WARNER-LAMBERT COMPANY
LLC,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
Plaintiff sued defendants in state court in December 2004. In March
2005, defendants removed the suit to this Court. (Doc. No. 1). In June 2005,
this case was transferred to a multidistrict litigation in the District of
Massachusetts. (Doc. No. 7). After Plaintiff’s counsel withdrew its
representation, the District of Massachusetts court ordered plaintiff to either
appear at a February 2011 status conference, retain counsel to appear at the
conference, or file a letter stating that he intended to proceed pro se. He did
none of those things. This case was then remanded to this Court from the
MDL. In October 2011, a stay of discovery was entered and plaintiff was given
until December 31, 2011, to retain an attorney. (Doc. No. 14). At a telephone
conference on January 31, 2012, Plaintiff stated that he was still searching for
counsel and needed additional time.
Now, nearly two years later, the plaintiff has still done nothing to move
his case forward. Most recently, he failed to appear for a telephonic status
conference on July 2, 2013. (Doc. No. 19).
Defendants have moved to dismiss plaintiff’s action for failure to
prosecute, pursuant to Federal Rule of Civil Procedure 41(b). (Doc. No. 21).
Plaintiff has not filed anything in response to this motion.
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A trial court, in its discretion, may dismiss an action for failure to
prosecute upon weighing the following factors: (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. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002)
(citing Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)).
A failure to comply with court orders, failure to engage in or respond to
discovery, and/or other failures to act have been found sufficient to constitute
a failure to prosecute. Opta Sys., LLC v. Daewoo Electronics Am., 483 F. Supp.
2d 400, 404 (D.N.J. 2007) (citing Adams v. Trustees of the New Jersey Brewery
Employees’ Pension Trust Fund, 29 F.3d 863, 875 (3d Cir. 1994)(noting that a
plaintiff can be sufficiently dilatory to suffer dismissal where they repeatedly
delay and disobey court orders).
Here, plaintiff has failed to comply with at least three court orders, each
requiring him to move his case forward. This weighs strongly in favor of
dismissal for failure to prosecute. See id. Looking closely at the Emerson-Poulis
factors in detail, I find that dismissal is merited.
First, plaintiff is fully responsible for his inaction. He has no counsel to
blame because he has not obtained counsel, despite representing that he
would. See Emerson, 296 F.3d at 190.
Second, plaintiff’s actions have caused prejudice to his adversaries, who
have been rendered unable, over this span of several years, to obtain any
discovery. All the while, they have had to deal with the uncertainty of a pending
litigation in federal court, paying their attorneys to attend conferences which
plaintiff has skipped. In short, it has been almost two years since plaintiff has
had any interaction with this Court. See Opta Sys., LLC v. Daewoo Electronics
Am., 483 F. Supp. 2d 400, 405 (D.N.J. 2007) (finding prejudice where case was
at a “virtual standstill” for four months).
Third, Plaintiff has clearly been dilatory—this needs no elaboration.
Fourth, while I cannot determine that plaintiff has operated in bad faith,
I must assume that his failure to proceed is willful given that he has neither
obtained counsel nor indicated any intent to proceed pro Se. He has left his suit
in limbo, and has most recently skipped a court ordered conference. Cf id.
Fifth, I find that a sanction other than dismissal could not ameliorate the
present situation, given plaintiff’s failure to take even the first steps towards
prosecuting his claim and his failure to abide by previous orders encouraging
such action. See id. at 405.
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Finally, I have no basis to determine that plaintiff’s claim lacks merit, so
I will assume arguendo that it does. Nevertheless, balancing all of the factors I
still find that dismissal is warranted. See id. at 406.
As such, plaintiff’s claim should be DISMISSED WITH PREJUDICE for
failure to prosecute. An appropriate order will follow.
iJJ\
/I
HON. KEVIN MC ULTY
United States District Judge
Dated: December 19, 2013
Newark, New Jersey
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