MISSIRIS v. CHUN et al
REPORT AND RECOMMENDATIONS re 1 Complaint filed by JAMES MISSIRIS Objections, if any, to R&R due by 2/25/2015. Signed by Magistrate Judge James B. Clark on 2/11/2015. (nr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THOMAS Y. CHUN, M.C., et al.,
Civil Action No. 13-7029 (MCA)
REPORT & RECOMMENDATION
CLARK, United States Magistrate Judge
THIS MATTER having been opened by the Court sua sponte based on Plaintiff’s failure
to prosecute his case and comply with Court Orders. For the reasons that follow, it is respectfully
recommended that the case be dismissed without prejudice.
On November 19, 2013, Plaintiff James Missiris (“Plaintiff”) filed a Complaint against
Defendants Thomas Y. Chun, M.D., Englewood Hospital & Medical Center, and John or Jane
Does 1-10 (collectively “Defendants”). [Dkt. No. 1]. On March 12, 2014, the Court conducted
an initial conference with counsel and entered a scheduling order. [Dkt. No. 16]. On December
10, 2014, Plaintiff’s attorney filed a Motion to Withdraw. [Dkt. No. 25]. On December 11,
2014, the Court entered an Order granting Plaintiff until December 31, 2014 to oppose Plaintiff’s
Counsel’s Motion to Withdraw, obtain new counsel, or indicate whether Plaintiff intended to
proceed pro se, or to voluntarily dismiss his action. [Dkt. No. 26]. Plaintiff failed to respond to
this Court’s Order. On January 8, 2015, counsel for all parties participated in a telephone
conference with the Court to address Plaintiff’s Counsel’s Motion to Withdraw and Plaintiff’s non1
participation in the matter.
The Court advised Plaintiff’s Counsel to submit an Affidavit
confirming that Plaintiff was served with the Court’s December 11, 2014 Order and detailing any
other efforts to keep Plaintiff aware of the case. On January 8, 2015, Plaintiff’s Counsel filed an
Affidavit with proof that Plaintiff was served with a copy of the Court’s Order on December 15,
2014 via First Class Mail and Certified Mail, Return Receipt Requested. [Dkt. No. 28, Ex. 5].
On January 9, 2015, as a result of Plaintiff’s failure to respond to this Court’s Order and
prosecute this action, the Court entered an Order to Show Cause. [Dkt. No. 29]. The Order
required Plaintiff to appear in person before the Court on February 10, 2015 at 2:00 PM to show
cause why this action should not be dismissed for failure to prosecute and to submit a position
paper by February 2, 2015 outlining why his case should not be dismissed. [Id.]. Counsel for
Defendants were ordered to serve a copy of the Order to Show Cause by regular mail and certified
mail, return receipt requested to Plaintiff at 5 Regina Court, Blauvelt, New York 10913. [Id.].
The Court also granted Plaintiff’s Counsel’s Motion to Withdraw. [Id.].
Plaintiff failed to submit a position paper to this Court and also failed to make the requisite
appearance at the Court’s February 10, 2015 hearing. During the hearing, counsel for both
Defendants represented to the Court that they served Plaintiff at 5 Regina Court, Blauvelt, New
York 10913 with the Order to Show Cause by regular mail and certified mail, return receipt
requested, which went unclaimed. Defendants also testified that they received no response from
The Federal Rules of Civil Procedure authorize courts to impose sanctions for failure to
respond to court orders and for failure to prosecute a case. See FED. R. CIV. P. 37(b)(2), 41(b).
In both instances, dismissal may be an appropriate penalty. Id.
In Poulis v. State Farm Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit identified
six factors for courts to balance when deciding whether to impose an involuntary order of
dismissal. The Poulis factors are:
(1) The extent of the party’s personal responsibility; (2) the
prejudice to the adversary caused by the plaintiff’s conduct; (3) the
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.
Id. at 868. No single Poulis factor is determinative and dismissal may be appropriate even if some
of the factors are not met. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992); Hicks v.
Feeney, 850 F.2d 152, 156 (3d Cir. 1988). If a court finds dismissal appropriate under Poulis, it
may dismiss an action sua sponte, pursuant to its inherent powers and Fed. R. Civ. P 41(b). See
Iseley v. Bitner, 216 F. App’x 252, 254-55 (3d Cir. 2007) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 630-31 (1962)). Each factor will be discussed in turn.
1. The Extent of the Party’s Personal Responsibility
In this case it appears that Plaintiff is solely responsible for his failure to comply with Court
Orders and to prosecute his case. Plaintiff has failed to meet Court imposed deadlines and/or
submit paperwork and has likewise failed to appear at the Order to Show Cause hearing. By
failing to comply with Court Orders, Plaintiff has demonstrated its unwillingness to prosecute this
action which warrants dismissal.
2. Prejudice to Defendants
Plaintiff’s refusal to participate in advancing his case and to comply with Court Orders has
caused manifest injustice to Defendants. Plaintiff initiated this action and has failed to participate
since the end of 2014.
Plaintiff’s actions, or lack thereof, supports dismissal.
Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984).
3. History of Dilatoriness
Plaintiff has a history of dilatoriness. For example, Plaintiff failed to respond to this
Court’s December 11, 2014 Order. Furthermore, Plaintiff failed to submit a position paper and
to appear for the Order to Show Cause hearing as required by this Court’s January 9, 2015 Order
is especially telling because the Order specifically required Plaintiff to identify reasons why his
case should not be dismissed for failure to prosecute. Plaintiff’s inaction in this regard further
supports dismissal of his claim.
4. Willfulness or Bad Faith
The Court will not conclude that Plaintiff has proceeded in bad faith. However, Plaintiff’s
conduct has been willful. Plaintiff has been willfully unresponsive to Court proceedings and to
Court Orders. These circumstances, when taken as a whole, suggest that Plaintiff has abandoned
his case and further support dismissal as the appropriate remedy.
5. Effectiveness of Alternative Sanctions
The record of unresponsiveness suggests that alternative sanctions would be futile.
Despite numerous chances, and despite this Court’s warning of the consequences of Plaintiff’s
continued inaction, Plaintiff has failed to participate in and prosecute his case. On these facts, no
alternative sanction would be effective. See Joyce v. Cont’l Airlines, Inc., No. 09-2460, 2011 WL
2610098 (D.N.J. June 15, 2011).
6. Meritoriousness of the Claims.
At this juncture, the Court is unable to determine the meritoriousness of Plaintiff’s claim.
In sum, Plaintiff has ignored a Court Order to make an appearance to show cause why his case
should not be dismissed, which further demonstrates a pattern of non-compliance and dilatoriness.
This establishes Plaintiff’s failure to adequately prosecute this matter which he initiated against
The Court having considered this matter pursuant to Fed. R. Civ. P. 78 and having given
consideration of the Poulis factors;
IT IS on this 11th day of February, 2015,
PREJUDICE pursuant to Fed. R. Civ. P. 41(b). Parties are advised that they may file an
objection within fourteen (14) days of the date of this Order in accordance with 28 U.S.C. § 636
and L. Civ. R. 72.1.
Counsel for Defendants are ORDERED to serve a copy of this Report and
Recommendation forthwith by regular mail and certified mail, return receipt requested to Plaintiff
at 5 Regina Court, Blauvelt, New York 10913.
The Clerk’s Office is ORDERED to serve a copy of this Report and Recommendation to
Plaintiff at Plaintiff at 5 Regina Court, Blauvelt, New York 10913.
s/James B. Clark, III
HONORABLE JAMES B. CLARK, III
UNITED STATES MAGISTRATE JUDGE
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