DORCANT v. INFINITI FINANCIAL SERVICES et al

Filing 78

REPORT AND RECOMMENDATION/OPINION that, Plaintiff's Complaint be dismissed for failure to prosecute and update his address. The parties have 14 days to file and serve objections to this Report and Recommendation. Signed by Magistrate Judge Steven C. Mannion on 7/30/13. (gmd, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
HUBERT DORCANT,

Civil Action No.
2:07-CV-4052-WHW-SCM

Plaintiff,
v.

[D.E. 76]

INFINITI FINANCIAL
SERVICES, et al,
Defendants.

REPORT AND RECOMMENDATION
STEVEN C. MANNION, United States Magistrate Judge.
I.

INTRODUCTION
Before the Court is its sua sponte Order to Show Cause why

the complaint of plaintiff Dorcant (hereinafter “Plaintiff” or
alternatively, “Dorcant”) should not be dismissed for failure to
prosecute

and

failure

address.

(D.E. 76).

to

advise

the

Court

of

his

current

Pursuant to Local Civil Rule 72.1(a)(2),

the Honorable William H. Walls, United States District Judge,
has

referred

this

matter

to

the

undersigned

for

report

and

recommendation.
Having reviewed and considered the docket in this matter,
it

is

respectfully

recommended

dismissed.

1

that

Plaintiff’s

complaint

be

II.

BACKGROUND

On

August

Superior
Defendant
Entry

23,

Court

of

Infinity

(“D.E.”)

1,

2007,
Essex

this

action

County

to

Financial
Notice

of

was

this

Services

removed

from
Court

District

the
by

(“Defendant”).

Removal).

On

May

8,

(Docket

2009,

the

Honorable William H. Walls, U.S.D.J. stayed this action “until
plaintiff is released” from imprisonment. (D.E. 64).

It was

then contemplated that Mr. Dorcant would serve a 41 month term
commencing on March 23, 2009.

(Id.).

This Court was subsequently advised that Mr. Dorcant had
been released from prison and accordingly lifted the stay. (D.E.
68).

The Court scheduled a status conference for April 20,

2012.

(Id.).

On

April

23,

2012,

the

Honorable

Madeline

Cox

Arleo, U.S.M.J. issued an Order vacating the Court’s Order to
lift stay due to the United States Attorney’s representation
that Mr. Dorcant was in ICE custody. (D.E. 72).
On

February

4,

2013,

this

Court

scheduled

a

status

telephone conference for April 26, 2013 with the undersigned
Magistrate Judge. (D.E. 74).

Donald M. Garson, Esq. and William

H. Grae, Esq. appeared for their respective client defendants.
Plaintiff Dorcant did not appear and has not communicated with
this Court.
Mr.

Dorcant

has

also

not
2

provided

this

Court

with

his

current
known

address.

address

by

Correspondence

sent

the

the

Clerk

of

undeliverable on four occasions.

to

Mr.

Court

Dorcant’s

was

returned

last
as

(See D.E. 69, 70, 73 and 77).

This Court later learned that while Mr. Dorcant was in ICE
custody a habeous corpus petition was filed on his behalf on
about March 29, 2012 in the United States District Court for the
Middle District of Pennsylvania. (See Report and Recommendation,
Dorcant v. Holder, 12-cv-573 (2013)).

According to the Report,

Mr. Dorcant is a Haitian national who has already “been removed
from the United States and returned to Haiti.” (Id.).
On April 29, 2013, this Court issued an Order to Show Cause
advising that if Mr. Dorcant did not file papers before May 30,
2013, showing good cause why this case should not be dismissed,
the District Court may dismiss this action pursuant to Federal
Rule of Civil Procedure 41(b) and/or pursuant to Local Civil
Rule 10.1(a) without further notice. (D.E. 76). To date, Mr.
Dorcant has not filed any papers or updated his address.

III. ANALYSIS
As an initial point, the Court notes that a decision to
dismiss is dispositive.
following

report

and

Accordingly, the undersigned makes the
recommendation

States District Judge.
3

to

the

assigned

United

A. Local Civil Rule 10.1
The complaint in this matter may be dismissed by the District
Court

pursuant

to

Local

Dorcant’s failure to

Civil

Rule

10.1(a)

for

Plaintiff

update his address with the Court

upon

being released from custody. Local Civil Rule 10.1(a) requires
pro se parties to “advise the Court of any change in their []
address within seven days of being apprised of such change by
filing a notice of said change with the Clerk.” L. Civ. R.
10.1(a). Further, “[f]ailure to file a notice of address change
may result in the imposition of sanctions by the Court”; and the
parties

being

reminded

that

failure

to

comply

with

these

directives may therefore lead to dismissal of the case.

B. Federal Rule of Civil Procedure 41(b)
Additionally, the complaint in this matter may be dismissed
by

the

District

Court

pursuant

to

Federal

Rule

of

Civil

Procedure 41(b) for Plaintiff Dorcant’s failure to prosecute his
claim upon being released from custody. Federal Rule of Civil
Procedure 41(b) allows a court to dismiss an action for failure
to “prosecute or to comply with [the] rules or a court order.”
Fed. R. Civ. P. 41(b). In Poulis v. State Farm Fire & Cas. Co.,
the Court for the Third Circuit outlined six factors that the
courts

must

consider

in

determining
4

whether

dismissal

with

prejudice is warranted:
(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 v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.
1984).

C. Dismissal for Failure to Update Address is Appropriate
The
Poulis

Court

may

balancing

dismiss
test

an

action

“when

a

without

litigant’s

conducting
conduct

the

makes

adjudication impossible.” McLaren v. N.J. Dep’t. of Educ., 462
Fed. Appx. 148, 149 (3d Cir. 2012). A failure to provide a
current

mailing

address

may

constitute

such

a

conduct

and

warrant dismissal. Id. at 149; Welch v. City of Philadelphia,
No. 11-4670, 2012 WL1946831, at *2-*3 (E.D.Pa. May 30, 2012). In
McLaren, the Third Circuit Court held that dismissal for failure
to

provide

an

accurate

address

was

appropriate

because

the

District Court “had little choice as to how to proceed” and “an
5

order imposing [lesser] sanctions would only find itself taking
a round trip tour through the United States mail.” McLaren, 462
Fed. Appx. at 149 (quoting Carey v. King, 856 F.2d 1439, 1441
(9th Cir. 1988)). The District Court for the Eastern District of
Pennsylvania utilized that reasoning in Welch. In Welch, the
Court held that dismissal was warranted because the plaintiff
left prison months ago but failed to notify the Court or the
defendants

of

his

new

address.

Welch,

No.

11-4670,

2012

WL1946831 at *3.
In the instant case, it appears that Mr. Dorcant has been
released from ICE custody and was deported to Haiti. All of the
correspondence that has been sent to Mr. Dorcant’s last known
address has been returned to the Court marked “undeliverable.”
This Court is faced with the same dilemma as the courts for the
Third District in Mclaren and the District Court for the Easter
District of Pennsylvania in Welch. If this Court issues a lesser
sanction, the order will just “take a round trip tour through
the

United

States

mail”

and

will

come

back

to

this

Court.

Accordingly, the only appropriate sanction in this matter is
dismissal.

D. Dismissal for Failure to Prosecute is Appropriate
Additionally, this Court finds that under the Poulis test,
6

dismissal is also warranted. As to the first factor, Mr. Dorcant
is personally responsible for the failure to prosecute. A pro se
plaintiff

is

personally

responsible

for

the

progress

of

his

case. Briscoe v. Klaus, 583 F.3d 252, 258-59 (3d Cir. 2008).
Although Mr. Dorcant vigorously pursued litigation prior to his
incarceration in 2009, after he was released, he has not filed
any papers and has not communicated with this Court. Mr. Dorcant
also failed to provide this Court with his current address and
as a result, the Court was not able to reach and advise Mr.
Dorcant that his case may be dismissed. Because Mr. Dorcant is a
pro se plaintiff, he is solely responsible for his failure to
prosecute and notify this Court and/or the defendants of his new
address. Accordingly, the first Poulis factor weighs in favor of
dismissal.
As to the second Poulis factor, Mr. Dorcant’s failure to
prosecute his cases and update his address is prejudicial to the
defendants. In Ware v. Rodale Press, Inc., the Third Circuit
concluded that for the purpose of the Poulis analysis, prejudice
“does

not

mean

‘irremediable

harm,’

the

burden

imposed

by

impeding a party’s ability to prepare effectively a full and
complete trial strategy is sufficiently prejudicial.” Ware v.
Rodale

Press,

examining

the

Inc.,

322

prejudice

F.3d

218,

prong,
7

the

222

(3d

Court

Cir.
should

2003).

In

consider

“whether

the

party’s

conduct

has

resulted

in

‘extra

costs,

repeated delays, and the need to file additional motions in
response to the abusive behavior of the responsible party.’”
Chiarulli v. Taylor, No08-4400, 2010 WL 1371944 at *3 (quoting
Huertas v. City of Phila., Civ. A. No. 02-7955, 2005 WL 226149,
at *3 (E.D.Pa. Jan 26, 2005), aff’d, 139 F. App’x 444 (3d Cir.),
cert. denied, 546 U.S. 1076 (2005)). Here, the defendants are
prejudiced because (1) they are unable to move forward with the
case, and (2) they incurred, and if this case is not dismissed,
will continue to incur additional costs. This

case has been

dormant for over three years due to Mr. Dorcant’s imprisonment
and

detention

by

ICE.

Once

Mr.

Dorcant

was

released,

the

defendants prepared a joint status letter and appeared for a
status conference. Further, if this case is not dismissed, the
defendants will be forced to file a formal motion with this
Court and thus, incur additional attorneys’ fees.

Accordingly,

this Court concludes that Mr. Dorcant’s conduct was prejudicial
and this factor heavily weighs in favor of dismissal.
Under the third Poulis factor, the Court is required to
examine whether there is a pattern of dilatoriness. Here, there
is

no

history

of

dilatoriness.

Contrary,

prior

to

his

incarceration, Mr. Dorcant vigorously pursued his claims. While
he

was

incarcerated,

the

Court
8

stayed

this

action

and

Mr.

Dorcant was not required to proceed with his claims.
months

ago,

Mr.

Dorcant

was

released

and

as

it

A few

appears

was

deported to Haiti. Mr. Dorcant’s failure to update his address
is the only evidence in support of dilatoriness. Because it has
been only a few months, this Court finds that Mr. Dorcant did
not

have

an

diligence.

opportunity

Accordingly,

to
this

show

either

Court

dilatoriness

cannot

find

a

or

pattern

due
of

dilatoriness and this factor does not weigh in favor or against
dismissal.
Under the third Poulis factor, the Court must determine
whether Plaintiff’s

conduct was willful or in bad faith.

In

Adams, the Court held that “willfulness involves intentional and
self-serving behavior.” Adams v. Trustees, N.J. Brewery Trust
Fund, 29 F.3d 863, 875 (3d
behavior’

or

‘failure

to

Cir. 1994).

move

…

with

However, “‘negligent
dispatch’

–

even

if

‘inexcusable’ – will not suffice to establish willfulness or bad
faith.” Chairulli, 2010 WL 1371944, at *3 (quoting Adams, 29
F.3d

at

875).

Mr.

Dorcant’s

failure

to

update

his

address

constitutes negligent behavior. However, because this Court has
not heard from Mr. Dorcant, it does not know whether Mr. Dorcant
has a reasonable excuse. But even if Mr. Dorcant does not have
an

excuse,

behavior

is

under

the

reasoning

insufficient

to

in

Chairulli,

“establish
9

his

willfulness

negligent
or

bad

faith.” Accordingly, this factor does not weigh in either favor
or against dismissal.
The fifth Poulis factor that the court must analyze is the
effectiveness

of

alternative

sanctions.

In

the

instant

case,

alternative sanctions are unlikely to be effective. This court
notes

that

“‘dismissal

is

a

drastic

sanction

and

should

be

reserved for those cases where there is a clear record of delay
or contumacious conduct by the plaintiff.’” Poulis, 747 F.2d at
866 (quoting Donnelly v. Johns-Manville Sales Corp., 677 F.2d
339, 342 (3d Cir. 1982)). An ultimate decision to dismiss with
prejudice is discretionary and it “must be made in the context
of the district court’s extended contact with the litigant.”
Miller v. Advocare, LLC, No. 12-1069, 2013 WL 2242646, at *2
(D.N.J. May 21, 2013) (quoting Mindek v. Rigatti, 964 F.2d 1369,
1373 (3d Cir. 1992)). Here, lesser sanctions will be ineffective
simply because the court does not have Mr. Dorcant’s current
address and thus, he will never receive the order. Accordingly,
the only appropriate sanction is dismissal.
As to the sixth Poulis factor, the Court is required to
determine meritoriousness of Plaintiff’s claim. The standard for
meritoriousness is whether “the allegations of the pleadings, if
established at trial, would support recovery by the plaintiff.”
Poulis, 747 F.2d at 869-70. Further, the District Court is not
10

required to “have a mini-trial” at this stage of proceedings and
“unless the pleading asserted a dispositive [] claim, the issue
of

meritoriousness

would

be

neutral.”

Hoxworth

v.

Blinder

Robinson & Co., Inc., 980 D.2d 912, 922 (3d Cir. 1992). Here,
this Court cannot conclude that Plaintiff’s claims are with or
without merit. Accordingly, this factor is not against or in
favor of dismissal.
Although

District

Courts

are

required

“to

make

explicit

factual findings” pertaining to each Poulis factor, in order to
dismiss a case, the Courts are not required to conclude that all
factors point toward dismissal. See Hoxworth v. Blinder Robinson
& Co., Inc., 980 D.2d 912 (3d Cir. 1992). The Poulis test is a
balancing test and no one factor is decisive. Ware v. Rodale
Press, Inc., 322 F.3d 218, 221-222 (3d Cir. 2003) (citing Hicks
v. Feeney, 850 F.3d 152, 156 (3d Cir. 1988)). Here, three out of
six

factors

weigh

in

favor

of

dismissal.

Mr.

Dorcant

is

personally responsible for his failure to update his address and
prosecute

his

claims,

the

defendants

are

prejudiced

by

Mr.

Dorcant’s conduct and an alternative sanction is unlikely to be
effective.

IV.

Accordingly, dismissal is warranted.

CONCLUSION

For

the

reasons

articulated
11

herein,

the

undersigned

recommends that Plaintiff’s Complaint be dismissed for failure
to prosecute and update his address.
The parties have fourteen days to file and serve objections
to this Report and Recommendation pursuant to 28 U.S.C. § 636
and L. Civ. R. 71.1(c)(2).

7/30/2013 1:30:17 PM

Date: July 30, 2013

12