SYNC LABS LLC et al v. FUSION-MANUFACTURING et al

Filing 129

OPINION fld. Signed by Judge William H. Walls on 6/11/14. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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SYNC LABS LLC AND CODRUT RADU
RADULESCU,
Plaintiffs,
v.

FUSION MANUFACTURING and
MICHAEL FERCHAK,
Defendants.

OPINION
No. 2:11-cv-3671 (WHW)

Walls, Senior District Judge
Defendants move for dismissal of the corporate Plaintiff, Sync Labs, under Federal Rule
of Civil Procedure 41. Plaintiff Radulescu opposes and moves for default judgment under Rules
16 and 37. The motion has been decided from the written submissions of the parties under Rule
78. Defendants’ motion is granted. Plaintiff’s motion is denied.
FACTUAL AND PROCEDURAL HISTORY
On January 27, 2012, Plaintiffs’ lawyer, Edward Zohn, moved to withdraw as counsel,
citing plaintiffs’ “failure to abide by the terms of the retainer agreement.” Mot. to Withdraw ¶ 4
(ECF No. 21-1). On February 9, 2012, Magistrate Judge Arleo granted Mr. Zohn’s motion and
ordered Sync Labs to retain counsel. Letter Order (ECF No. 22). She warned that if Sync Labs
did not retain counsel by February 28, 2012, she would recommend dismissal of the complaint.
Id. On that date, Plaintiff Radulescu informed the Court that he would himself appear as counsel
for Sync Labs. Notice of Appearance (ECF No. 26).

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On March 30, 2012, Defendants moved to disqualify Radulescu as counsel for Sync
Labs. Defs.’ Mot. to Disqualify (ECF No. 30). They argued that Radulescu, though he is an
attorney in good standing, was barred from serving as counsel for the corporate plaintiff by New
Jersey Rule of Professional Conduct 3.7, which prohibits a lawyer from serving as counsel in a
matter where he is also a necessary witness; by Rule 1.7(a)(2), which prohibits a lawyer from
representing a client where a conflict of interest exists; and by Rule 1.8(i), which prohibits a
lawyer from acquiring a proprietary interest in the subject matter of the litigation. Id. On June 7,
2012, after hearing the parties, Judge Arleo ruled from the bench that a conflict existed and
disqualified Radulescu from representing Sync Labs. Hr’g Tr. 23:25-24:3, 25:5-13, June 7, 2012
(ECF No. 38); see also Order Granting Defs.’ Mot. to Disqualify (ECF No. 37).
On June 25, 2012, Radulescu moved to reconsider, ECF No. 39, but Judge Arleo denied
the motion for reconsideration and, once again, ordered Sync Labs to retain counsel, ECF No.
49. On October 16, 2012, Radulescu appealed Judge Arleo’s order to this Court, ECF No. 51,
and this Court affirmed Judge Arleo’s order, ECF Nos. 60-61. On or about January 2, 2013,
Radulescu moved for reconsideration of that order. ECF Nos. 62, 68. While awaiting a response
on that motion, Radulescu also moved, on February 22, 2013, for judgment on the pleadings.
ECF No. 74.
On March 19, 2013, this court denied reconsideration of its affirmation of Judge Arleo’s
opinion and struck the motion for judgment on the pleadings because filed on behalf of both
plaintiffs. ECF Nos. 82-83. On April 12, 2013, Radulescu refiled his motion for judgment on the
pleadings on behalf of himself only. ECF No. 84. The motion and Defendants’ opposition were
accompanied by various exhibits, so the Court converted the motion to one for summary
judgment and gave the parties an opportunity to supplement their submissions. Order Converting

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to Summ. J., July 16, 2013 (ECF No. 96). Radulescu submitted various additional exhibits. ECF
No. 98.
On September 4, 2013, this Court partially granted summary judgment in favor of
Radulescu on his breach of contract claim and against Defendants on several of their
counterclaims, but denied summary judgment as to Defendants’ securities fraud counterclaim.
ECF Nos. 102-03. Two weeks later, Radulescu moved for reconsideration, arguing that this
Court should have dismissed the securities fraud counterclaim, too. ECF No. 104. Defendants
opposed and cross-moved to dismiss Sync Labs from the action for failure to retain counsel as
ordered by the Court. ECF No. 107. On January 6, 2014, this Court denied Radulescu’s motion
for reconsideration, finding that Radulescu had failed to cite an intervening change in law,
present any genuinely “new evidence” or identify a clear error of law, as required on a motion
for reconsideration. ECF Nos. 115-16. It denied Defendants’ cross-motion because it did not
relate to the underlying motion for reconsideration. Id.
On March 4, 2014, Defendants re-filed their cross motion as a motion to dismiss under
Rule 41. ECF No. 120. Radulescu opposes and also cross moves for default judgment under
Rules 16 and 37. ECF No. 122.
DISCUSSION
I.

Defendants’ Motion to Dismiss
Defendants ask the Court to dismiss the corporate plaintiff, Sync Labs, for its failure to
retain counsel for over two years. Defs.’ Mot. at 1.
a) Standard
The Federal Rules of Civil Procedure provide that, “[i]f the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move to dismiss the action or any

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claim against it.” Fed. R. Civ. P. 41(b). Though it is “a harsh remedy and should be resorted to
only in extreme cases . . . the authority to dismiss for lack of prosecution, both on defendants’
motion and sua sponte, is an inherent ‘. . . control necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious disposition of cases.’” Marshall v.
Sielaff, 492 F.2d 917, 918 (3d Cir. 1974) (quoting Link v. Wabash Railroad Co., 370 U.S. 626,
630-31 (1962)).
In determining whether dismissal is an appropriate sanction, courts in this district look to
the six factors outlined by the Third Circuit in Poulis v. State Farm Fire & Casualty Co.: (1)
“[t]he extent of the party’s personal responsibility”; (2) the “[p]rejudice to the adversary” caused
by the party’s action or inaction; (3) a “history of dilatoriness”; (4) whether the “conduct was
willful or in bad faith”; (5) the effectiveness of “alternative sanctions” short of dismissal; and (6)
the “[m]eritoriousness of the claim” or defense. 747 F.2d 863, 866 (3d Cir. 1984). The court
should balance the factors, but not all of them need point to dismissal in order for dismissal to be
the right outcome: “the decision must be made in the context of the district court’s extended
contact with the litigant.” Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).
b) Application
Defendants say dismissal of Sync Labs is warranted under the six factors outlined by the
Third Circuit in Poulis. Defs.’ Mot. at 6-8. Radulescu’s response is a bit difficult to follow, but
he essentially argues that the Poulis factors weigh against dismissal. His assertion that he
“contacted several attorneys but could not secure representation” appears to be a claim that the
failure to obtain counsel for Sync Labs was beyond its control and not its responsibility (Poulis
factor 1), or at least was not willful or in bad faith (Poulis factor 4). Pl.’s Opp’n at 8 (ECF No.
122) (citing a list of attorneys Radulescu allegedly contacted, which appears in the record as an
exhibit to an earlier submission, Radulescu Cert. Ex. 10 at 45, May 2, 2012 (ECF No. 31-1)). He
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also suggests that there has been no prejudice to Defendants (Poulis factor 2) because, though
Sync Labs has been sidelined by its lack of counsel, Radulescu himself has continued to advance
the case. Id. at 7 (“Here even if Sync Labs remained passive, Pro Se Radulescu continued
litigation as all company claims are common with Radulescu claims.”). This echoes a previous
argument Radulescu made to the Court, namely that it is not necessary to dismiss the corporate
plaintiff from the case because it can remain as a “passive” party. See Radulescu’s Reply Brief in
Opp’n to Defs.’ Cross Mot. to Dismiss, 12-15, Nov. 18, 2013 (ECF No. 111). Radulescu also
argues that Defendants are equitably estopped from dismissing Sync Labs because, as part
owners of Sync Labs, Defendants have a responsibility to help pay for the company’s
representation. Because that part ownership was the basis for disqualifying Radulescu from
providing that representation himself, the argument goes, it would be inequitable to dismiss Sync
Labs for lack of representation. Pl.’s Opp’n at 9 (ECF No. 122).
c) Defendants’ Motion to Dismiss Plaintiff Sync Labs is Granted
The question before the Court is not whether Sync Labs must retain independent counsel.
That issue is settled. Judge Arleo disqualified Radulescu as counsel for Sync Labs on June 7,
2012, ECF No. 37, and that decision has been affirmed three times, ECF Nos. 49, 60, 82. Sync
Labs has been under an order of the Court to retain counsel for two years. The question before
the Court is only whether this disobedience of a court order is severe enough to warrant dismissal
under Poulis.
The Third Circuit has made clear that a failure to comply with court orders, including an
order to retain counsel, can justify dismissal under the Poulis factors. Hoxworth v. Blinder,
Robinson & Co., Inc., 980 F.2d 912, 918 (3d Cir. 1992). See also First Franklin Fin. Corp. v.
Rainbow Mortgage Corp., Inc., No. 07-cv-5440 (JBS)(AMD), 2010 WL 4923341, at *7 (D.N.J.

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Oct. 19, 2010), report and recommendation adopted, No. 07-cv-5440 (JBS)(AMD), 2010 WL
4923326 (D.N.J. Nov. 23, 2010) (striking corporate defendant’s answer for failure to retain
counsel and other failures); Opta Sys., LLC v. Daewoo Electronics Am., 483 F. Supp. 2d 400,
406 (D.N.J. 2007) (adopting magistrate judge’s recommendation to dismiss complaint of
corporate plaintiff).
In fact, it is not uncommon for a court to summarily dismiss a corporate party for failure
to retain counsel—that is, without a full Poulis analysis. See Days Inns Worldwide, Inc. v.
Platinum Hospitality Grp., LLC, No. 10-cv-6454 (WJM) (MF), 2011 WL 4790765, at *1 n.1
(D.N.J. Sept. 20, 2011), report and recommendation adopted, No. 10-cv-6454 (WJM) (MF),
2011 WL 4753427 (D.N.J. Oct. 6, 2011) (striking corporate defendant’s answer for failure to
retain counsel and applying Poulis to pro se individual defendants only); Kim v. Sharon Hanna
Preschool & Acad., No. 11-cv-5797 (SDW)(MCA), 2012 WL 6839914, at *2 (D.N.J. Nov. 29,
2012), report and recommendation adopted sub nom. Young Chul Kim v. Sharon Hanna
Preschool & Acad., No. 11-cv-5797 (SDW)(MCA), 2013 WL 140094 (D.N.J. Jan. 9, 2013)
(same); Freeman v. McDowell, No. 10-cv-1541 (ES)(CLW), 2012 WL 3240848, at *2 (D.N.J.
Jan. 24, 2012), report and recommendation adopted, No. 10-cv-1541 (ES)(CLW), 2012 WL
3238841 (D.N.J. Aug. 7, 2012) (same).
That said, the Court has considered the motion under Poulis.
Poulis Factor 1: Extent of the Party’s Responsibility
Where a party has instituted a suit through counsel, is on notice that its counsel has
withdrawn and has been afforded an opportunity to retain new counsel, it is responsible for its
failure to do so. Opta Systems, LLC, 483 F. Supp. 2d at 404. See also Hayes v. Nestor, No. 09-

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cv-6092 (NLH) (AMD), 2013 WL 5176703, at *4 (D.N.J. Sept. 12, 2013) (“[N]o one but
Plaintiff is responsible for her failure to . . . comply with court orders.”).
Here, Radulescu’s primary argument that Sync Labs is not responsible for its failure to
secure counsel is that it cannot afford to pay and no lawyer will accept its case. Unfortunately,
the Court has not found any case recognizing that as an adequate excuse. Even a decision cited
by Plaintiff found a corporation’s claim of “lack of resources” insufficient to justify its failure to
retain counsel. See Pl.’s Opp’n at 15 (citing Flynn v. Thibodeaux Masonry, Inc., 311 F. Supp. 2d
30, 37 (D.D.C. 2004)). Only a natural person may proceed in forma pauperis and “a corporation
may appear in the federal courts only through licensed counsel.” Rowland v. California Men’s
Colony, 506 U.S. 194, 201-02 (1993).
This factor also appears to be the right place to consider Radulescu’s argument that
Defendants should foot the bill for the corporate Plaintiff’s attorney fees. Radulescu has cited no
law to support that argument or shed light on the percentage of the costs for which Defendants
may be responsible. This Poulis factor weighs in favor of dismissal.
Poulis Factor 2: Prejudice to the Adversary
A party suffers prejudice if an adversary’s shortcomings are “impeding [its] ability to
prepare effectively a full and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218,
223 (3d Cir. 2003). See also Bull v. United Parcel Serv., Inc., 665 F.3d 68, 80 (3d Cir. 2012).
The Third Circuit has also “construed prejudice to include the burden that a party must bear
when forced to file motions in response to the strategic discovery tactics of an adversary.” Ware,
322 F.3d at 223 (citation omitted).
Here, Radulescu’s constant filing of meritless motions for reconsideration have imposed
unfair costs on Defendants. Though the fact that Radulescu has continued to move the case

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forward while Sync Labs is on the sidelines mitigates the prejudice to Defendants, this factor still
weighs in favor of dismissal.
Poulis Factor 3: History of Dilatoriness
Courts ordinarily find a history of dilatoriness upon a showing of “lengthy, ongoing,
extensive, and continuous examples of a plaintiff’s multiple, repeated failures to comply with
court orders, appear for hearings, or engage in discovery.” Baker v. Accounts Receivables Mgmt.,
Inc., 292 F.R.D. 171, 178 (D.N.J. 2013).
Here, Sync Labs’s only shortcoming is its failure to retain counsel, but that one
shortcoming has now gone on for two years in the face of multiple court orders. This
disobedience weighs in favor of dismissal.
Poulis Factor 4: Whether the Conduct was Willful or in Bad Faith
“Courts find willfulness and bad faith where no reasonable excuse for the conduct in
question exists.” Freeman v. McDowell, 2012 WL 3240848, at *5 (citing Ware, 322 F.3d at 224).
Here, it is clear from the submissions that Radulescu made a good faith effort to secure counsel
for Sync Labs. But this was more than two years ago—Radulescu’s citation for his efforts is a
list of firms which he submitted to the Court on May 2, 2012. Pl.’s Opp’n at 8 (citing Radulescu
Cert. Ex. 10 at 45). Inability to pay is not a reasonable excuse and so, as a legal matter, Plaintiff’s
conduct is “willful.” This factor weighs in favor of dismissal.
Poulis Factor 5: Effectiveness of Sanctions Other than Dismissal
The Court is mindful of directives from the Third Circuit and Supreme Court that
dismissal with prejudice is a “harsh remedy” and that other sanctions are available. See Marshall,
492 F.2d at 918. The Poulis decision teaches that, under the Federal Rules, “the district court is

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specifically authorized to impose on an attorney those expenses, including attorneys’ fees,
caused by unjustified failure to comply with discovery orders or pretrial orders.” 747 F.2d at 869.
Sync Labs has remained in this case without counsel for two years. Radulescu has fought
tooth and nail to serve as counsel for the corporation, including filing multiple motions for
reconsideration to try to bring about that outcome. At this point, no sanction short of dismissal
with prejudice will put this issue to rest. This factor weighs in favor of dismissal.
Poulis Factor 6: Meritoriousness of the Claim
The standard for meritoriousness is less stringent than that for summary judgment.
Poulis, 747 F.2d at 869-70. Plaintiffs’ claims clearly have merit—this Court granted summary
judgment to Radulescu on several counts on January 6, 2014, including the Amended
Complaint’s count for breach of contract. ECF No. 115-16. Without drawing any legal
conclusions regarding the merit of the claims by the corporate as opposed to the individual
Plaintiff, this factor weighs against dismissal.
Rule 41 Dismissal as to a Single Party
Radulescu also argues that a Rule 41 dismissal is only appropriate if there has been no
activity in the case as a whole—that it is inappropriate to dismiss one plaintiff when another
plaintiff has been moving the case along. Pl.’s Opp’n at 5-6 (ECF No. 122-1). There is no merit
to this argument.
Rule 41 provides that dismissal may be appropriate “[i]f the plaintiff fails to prosecute or
to comply with these rules or a court order.” Fed. R. Civ. P. 41(b). Radulescu is simply mistaken
that total inactivity is required to justify a Rule 41 dismissal; failure to abide by a court order is
an independent and sufficient rationale. Moreover, on the specific point raised by Radulescu,
Third Circuit law is clear that the court can and should dismiss a corporate party for failure to
retain counsel as ordered by the court, even while allowing the individual parties to remain in the
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case pro se. GLeS, Inc. v. MK Real Estate Developer & Trade Co., 511 Fed Appx. 189, 190 n.1
(3d Cir. 2013); S.E.C. v. Lazare Industries, Inc., 294 Fed. Appx. 711, 713 n.1 (3d Cir. 2008);
Super 8 Motels, Inc. v. Sai Krupa, Inc., No. 06-cv-4972 (JAG)(MCA), 2007 WL 3231891, at *1
(D.N.J. Oct. 30 2007).
d) Conclusion
Plaintiff Sync Labs has failed to retain counsel in violation of orders of this Court for two
years. That is an exceptionally long time. Though Sync Labs’s claims may have merit, Sync
Labs alone is responsible for the delay, it has caused prejudice to defendant, the extended delay
amounts to a history of dilatoriness, there is no reasonable excuse for it and no other sanction is
likely to be adequate. Having considered the factors outlined by the Third Circuit in Poulis, the
Court dismisses Sync Labs from this action with prejudice.
Plaintiff’s Cross Motion

II.

Radulescu cross-moves for default judgment or to strike Defendants’ Answer. Pl.’s
Opp’n at 35. He essentially makes three allegations: that Defendants failed to attend a scheduled
pre-trial conference, Pl.’s Opp’n at 14; refused to cooperate with discovery, including by failing
to respond or specifically object to interrogatories, id. at 31-33; and fabricated evidence that
prejudiced Plaintiff, id. at 3, 30.1
Defendants respond that Rule 16 does not provide for default judgment and that the
cross-motion must be dismissed because it is not related to the motion to dismiss, as required by
Local Civil Rule 7.1(h). Defs.’ Reply and Opp’n to Pl.’s Cross Motion at 8 (ECF No. 127).

The third allegation has no merit, as all of the alleged “fabrications” involve genuine disputes
about material facts, such as whether Radulescu told Ferchak his investment would be
refundable. Id. at 3.
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a) Rule 16 Does Provide for Default Judgment
Federal Rule of Civil Procedure 37 gives the court power to sanction a party for failing to
comply with discovery requests, including failure to serve answers to interrogatories. See Fed. R.
Civ. P. 37(d)(1)(A)(ii). Rule 37(b) lists the sanctions which the court may order, including
striking a pleading, dismissing the action in whole or in part and rendering a default judgment.
Fed. R. Civ. P. 37(b)(2)(A)(iii), (v), (vi). Federal Rule of Civil Procedure 16(f), “Sanctions,”
gives the court power to sanction a party for missing a conference or failing to obey a pretrial
order. Fed. R. Civ. P. 16(f)(1). That rule incorporates the sanctions listed in Rule 37(b). Fed. R.
Civ. P. 16(f) (“On motion or on its own, the court may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)-(vii) . . .”); see also In re Orthopedic “Bone Screw” Products
Liab. Litig., 132 F.3d 152, 154 n.2 (3d Cir. 1997) (“Rule 16(f), which provides sanctions for
failure to comply with pretrial and scheduling orders of the court, incorporates the sanctions
under Rule 37 by reference, including the Rule 37(b)(2)[(A)(v)] provision for dismissal for
failure to comply with discovery orders.”)
It is not the case that Rule 16 does not provide for default judgment. See, e.g., Halvajian
v. Hillman, No. 03-cv-5880 (HAA), 2006 WL 827853, at *4 (D.N.J. Mar. 30, 2006) (“This Court
may enter a default judgment against Defendant either pursuant to Rule 55 or Rule 16(f).”).
Defendants’ argument that a Plaintiff must proceed pursuant to the procedure under Rule 55 is
incorrect. Rules 16 and 55 provide distinct bases for dismissal or default.
As with a dismissal under Rule 41, dismissal under Rule 37 requires consideration of the
Poulis factors. Knoll v. City of Allentown, 707 F.3d 406, 409 (3d Cir. 2013); see also Mansaray
v. Pumphrey, No. 12-cv-6262 (JBS), 2013 WL 4008805 at *2 (D.N.J. Aug. 5, 2013) (extending
Knoll to Rule 16). But a court looks to Poulis only if a district court is granting dismissal; when a

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party “will still have [its] day in court . . . a ‘Poulis balance’ is not required.” Hagans v. Henry
Weber Aircraft Distributors, Inc., 852 F.2d 60, 66 (3d Cir. 1988).
b) The Cross Motion is Related to the Underlying Motion
A cross-motion must be “related to the subject matter of the original motion.” L. Civ. R.
7.1(h). If no relation is clear, the court has discretion to deny it. See Travelodge Hotels, Inc. v.
BO-ED Inc., No. 04-cv-4310 (HAA), 2007 WL 8053668, at *4 (D.N.J. Mar. 19, 2007) (finding
cross-motion to compel unrelated to motion for summary judgment). But “to the extent that the
Cross-Motion suffers from any technical deficiencies or strays from the Local Rules in a minimal
way, it is within this Court’s discretion to allow the Cross–Motion to proceed.” Davis v. Twp. of
Paulsboro, 371 F. Supp. 2d 611, 617 (D.N.J. 2005) (citation omitted).
Defendants move to dismiss Sync Labs for its failure to retain counsel. Plaintiff moves
for default judgment for discovery violations. Because both motions are about the parties’
compliance with court orders for non-substantive matters, they are sufficiently related for
purposes of Local Civil Rule 7.1(h).
c) Defendants’ Failure to Respond to Interrogatories Is Not Cause for Sanctions
On October 28, 2011, Magistrate Judge Arleo issued an Arbitration Scheduling Order
which, among other things, made interrogatories due November 18, 2011, with responses due
within 30 days of receipt. ECF No. 12. At some point presumably before this deadline,
Radulescu submitted to Defendants a list of interrogatories which “numbered 25,” in compliance
with the numerical limit found in Federal Rule of Civil Procedure 33(a), but Defendants objected
because, including the numerous subparts, the number was in fact much higher. Letter from C.
Hager, Dec. 13, 2011 (ECF No. 13); id., Ex. A, Pls.’ Interrogs. (ECF No. 13-1). Plaintiffs, who
were still represented by counsel at the time, complained that Defendants had failed to object

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specifically, as required by the Federal Rules. Letter from E. Zohn, Dec. 13, 2011 (ECF No. 14).
The parties met and conferred, and Plaintiffs agreed to submit interrogatories compliant with the
Federal Rules. Letter of C. Hager, Jan. 9, 2012 (ECF No. 17). But two weeks later, Plaintiffs’
counsel moved to withdraw from the case. ECF No. 21. As far as the Court is aware, Plaintiffs
never submitted conforming interrogatories.
It is true that “[t]he grounds for objecting to an interrogatory must be stated with
specificity.” Fed. R. Civ. P. 33(b)(4). It is also true, however, that an interrogatory may be
improper simply by virtue of exceeding the numerical limit in Rule 33(a). See Bowers v. Nat’l
Collegiate Athletic Ass’n, No. 97-cv-2600 (SMO)(RBK), 1998 WL 35180779, at *2 (D.N.J.
Sept. 17, 1998) (after defendant refused to respond to excessive interrogatories, denying
plaintiff’s request to serve additional interrogatories and ordering it to serve amended
interrogatories); Katiroll Co., Inc. v. Kati Roll & Platters Inc., Nos. 10-cv-3620 (MAS)(TJB),
11-cv-4781 (MAS)(TJB), 2013 WL 3897598, at *2 (D.N.J. July 29, 2013) (approving report and
recommendation denying motion to compel response to interrogatories which exceeded the
numerical limit).
Plaintiff submitted more than 25 interrogatories without permission of the Court. This
made them improper and Defendant was not required to respond to them.2
d) Defendants’ Failure to Attend the Conference is Not Cause for Sanctions
Three days before the parties were due to appear for a January 9, 2014 conference before
Magistrate Judge Waldor, defense counsel wrote to the court requesting an adjournment, but
Judge Waldor denied it. ECF Nos. 114, 118. After receiving this notice of denial, defense
counsel appealed to Judge Waldor via phone, and her chambers made a verbal representation to

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Because the Court decides against dismissal or other sanction, a Poulis balance is not required.
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Defendants that it would remove the conference from the calendar. At 7:11 a.m. on the morning
of the conference, defense counsel wrote an e-mail to Radulescu, claiming that “Magistrate
Judge Waldor has adjourned today’s conference because I am on trial elsewhere.” Pl.’s Opp’n,
Radulescu Cert. Attachment 5, Pl.’s Exhibit 191, at 1 (ECF No. 122-7). Radulescu agreed to pick
a new date and on January 9, defense counsel wrote to the court a second time:
“As per the request made to me yesterday about my request to
adjourn today’s conference because I am on my feet elsewhere, I
contacted Plaintiff Radulescu about his availability for the
conference to occur in February. Because my trial is expected to
last until mid-February, the parties in this case respectfully request
a conference date with Your Honor later in February.”
ECF No. 119. Radulescu now contests Defendants’ representation—which appears both in that
January 9 e-mail (ECF No. 122-7 at 1) and Defendants’ Opposition to Radulescu’s Cross-Motion
for sanctions (ECF No. 127 at 2)—that Judge Waldor adjourned the January 9 conference. Letter
of Plaintiff Radulescu, May 5, 2014 (ECF No. 128).
The dispute over the January 9, 2014 conference appears to spring from a
misunderstanding. According to the docket, Judge Waldor denied Defendants’ request to adjourn
the conference. ECF No. 118. But Judge Waldor’s chambers has confirmed with the Court that it
spoke with defense counsel the evening before the conference and agreed to remove it from the
calendar. This appears to be what defense counsel’s letter refers to when it says, “As per the
request made to me yesterday . . . .” ECF No. 119.
The Court declines to dismiss Defendants or otherwise sanction them under Rule 16
because it is not clear from the record that this is part of a dilatory strategy.3 But delay has been
the effect if not the intent: five months have passed since the date of the January 9, 2014

3

Again, because the Court decides against dismissal or other sanction, a Poulis balance is not
required.
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scheduling conference, and neither party has made an effort to reschedule it. Discovery and other
pre-trial matters have dragged on for far too long. The Court refers the case to Judge Waldor to
schedule a Rule 16 conference as soon as is practicable to put in place a new scheduling order
providing for expedited discovery which will get this case back on track.
CONCLUSION
Defendants’ motion to dismiss is granted. Plaintiff Sync Labs is dismissed with prejudice.
Plaintiff’s cross motion for default judgment against Defendants is denied.

June 11, 2014
/s/ William H. Walls
United States Senior District Judge

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