FERNANDEZ v. THE BROWNSTONE HOUSE INC. et al
Filing
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MEMORANDUM OPINION & ORDER granting deft's 48 Motion to Dismiss for Lack of Prosecution; dismissing pltf. Michael Antonio's claims in their entirety and closing case. Signed by Judge Esther Salas on 2/4/2014. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SANDY FERNANDEZ, YORDANO
BULA, ANGEL COTTY, ERICK
BULA, and MICHAEL ANTONIO,
Plaintiffs,
v.
THE BROWNSTONE HOUSE INC.,
ALBERT MANZO, and THOMAS
MANZO,
Defendants.
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Civil Action No.: 11-3129 (ES)
MEMORANDUM OPINION & ORDER
SALAS, DISTRICT JUDGE
This matter comes before the Court on the motion of defendants Brownstone House Inc.,
Albert Manzo, and Thomas Manzo (collectively, “Defendants”) to dismiss plaintiff Michael
Antonio’s complaint, (D.E. No. 48), and the Court having considered Defendants’ submissions
and the record in this action, and it appearing that:
1. Plaintiffs Sandy Fernandez (“Fernandez”), Yordana Bula, Angel Cotty (“Cotty”), Erick
Bula, and Michael Antonio (“Antonio”) (collectively, “Plaintiffs”) initially alleged that
Defendants violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (D.E. No. 31).
But Fernandez, Yordana Bula, Cotty, and Erick Bula subsequently withdrew their claims
against Defendants with prejudice. (D.E. No. 51). Thus, only Antonio’s claims remain
against Defendants.
2. Antonio became a pro se litigant during the course of this action and failed to appear at a
Court-ordered hearing.
(D.E. Nos. 44 & 46).
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Specifically, Antonio stopped
communicating with his attorney in August 2012, prompting the Court to relieve the
attorney from serving as Antonio’s counsel. (D.E. Nos. 36 & 46). Antonio has also
failed to produce discovery. (D.E. No. 48-2 ¶ 5).
3. Defendants argue that Antonio’s claims should be dismissed under Federal Rule of Civil
Procedure 37(d) as a sanction for failing to serve answers to interrogatories and for
failing to prosecute this action.
Defendants’ motion.
(D.E. No. 48-1 at 1).
Antonio has not opposed
Generally, the Court must consider the following six factors,
commonly referred to as the Poulis factors, before dismissing an action under these
circumstances:
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 v. Nicholson, 153 F. App’x 69, 72 (3d Cir. 2005) (citing Poulis v. State Farm Fire
and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)); see also James Indus., Inc. v. Lexar
Corp., 60 F. App’x 385, 388 (3d Cir. 2003) (applying Poulis factors when affirming
dismissal of claims under Federal Rule of Civil Procedure 37). But “not all of the Poulis
factors need to be satisfied in order to dismiss a complaint.” James Indus., 60 F. App’x
at 388 (quotations omitted).
4. Here, analysis of the Poulis factors supports dismissal of Antonio’s claims. Antonio is
responsible for failing to provide discovery. To be sure, his former attorney indicated
that Antonio received Defendants’ interrogatories. (D.E. No. 36 at 4-5). Yet, Antonio
has not provided responses thereto. (D.E. No. 48-2 ¶ 5). And Antonio’s failure to
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cooperate with his attorney ultimately led to his attorney withdrawing representation.
(D.E. No. 46). Although required to do so, Antonio has also failed to appear before the
Court for a hearing relating to his prosecution of this action. (See id.). There seems to be
no indication from Antonio that he intends to exchange discovery or prosecute this
action. In fact, Antonio has not opposed Defendants’ motion to dismiss even though it
was properly served upon him. (D.E. No. 48-4). Without discovery, Defendants are
unable to adequately defend this matter, and Defendants have already reached settlements
with every other former plaintiff in this matter. (D.E. No. 51; D.E. No. 48-1 at 2). The
Court finds that, under the facts of this case, no alternative sanction but dismissal is
appropriate. James Indus., 60 F. App’x at 388-89 (affirming dismissal under Federal
Rule of Civil Procedure 37 and explaining that, “[g]iven [the party’s] repeated failures to
comply with discovery deadlines, obey court orders, or cooperate with counsel, we
decline to conclude that the District Court erred by not specifically evaluating the merits
of [the party’s claims], particularly given that it considered the other five factors”).
Accordingly, the time for filing opposition having expired, and having considered
Defendants’ submissions and the record in this action, and pursuant to Federal Rule of Civil
Procedure 78,
IT IS on this 4th day of February 2014, hereby
ORDERED that Defendants’ motion, (D.E. No. 48), is GRANTED; and it is further
ORDERED that Plaintiff Michael Antonio’s claims are DISMISSED in their entirety; and it
is further
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ORDERED that the Clerk of Court shall CLOSE this case.
/s/ Esther Salas
Esther Salas, U.S.D.J.
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