CALVARUSO et al v. JP MORGAN CHASE BANK, N.A.

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 26 Order, Report and Recommendations; ORDERED that pursuant to Federal Rule of Civil Procedure 41(b), the claims of the following Plaintiffs, (1) Leonard Calvaruso; (2) Linda Huffinan; (3) Luke Jacobs en, Sr.; (4) Marvin Kaplan; (5) Martin Leonard; (6) Jennifer Leonard; (7) Nicholas Maneino; (8) Walter Meshenberg; (9) Robert Miller; (10) Tracy Miller; (11) Lyn Miller-Oestereich; (12) Lawrence Ogbogu; (13) Lucy Cox; (14) Charlotte OBrien; (15) Andr ew OBrien; (16) Darryl Peck; (17) Wallingford Reid; and (18) Elizaveta Smolovik are dismissed without prejudice; ORDERED that because Plaintiffs (1) B. Calico-Hickey; (2) Anthony Wedo and/or (3) Carrie Wedo failed to timely provide letters to the Cou rt (a) confirming whether they wish to proceed with this litigation; and (b) providing their current mailing addresses, said Plaintiffs claims are dismissed, without prejudice, for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b), and as a sanction for their failure to comply with Local Civil Rule 10.1(a). Signed by Judge Jose L. Linares on 6/8/2015. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT
COURT
DISTRICT OF NEW JERSE
Y

LEONARD CALVARUSO, et
al.,

Civil Action No.: 14-45 15 (JL
L)

Plaintiffs,
V.

ORDER
JPMORGAN CHASE BANK
, N.A.,
Defendant.
THIS MATTER comes before
the Co

urt by way of United States Ma
gistrate Judge Joseph
A. Dickson’s May 4, 2015 Repor
t and Recommendation [Dock
et Entry No. 26), recommendi
ng
that the undersigned dismiss cer
tain Plaintiff’s claims without
prejudice for lack of prosecuti
on
pursuant to Federal Rule of Civ
il Procedure 41(b). Further, Jud
ge Dickson recommended tha
t to
the extent certain other Plaint
iffs fail to comply with the dir
ectives contained in his Repor
t and
Recommendation, those Plaint
iffs’ claims should likewise be
dismissed, without prejudice,
for
lack of prosecution. Magistra
te Judge Dickson filed his Repor
t and Recommendation pursua
nt to
28 U.S.C. § 636 (b)(l)(B). In
relevant part, Judge Dickson not
ed that the Court now finds itse
lf in
the unenviable position of hav
ing to manage the procedura
l fallout created by Plaintiffs’
former
counsel’s forced departure fro
m the mass-joinder action tha
t they created. The Court sch
eduled a
March 27, 2015 conference as
a means to bring the parties tog
ether to discuss the status of
the case
and necessary next steps, educat
e Plaintiffs regarding their res
ponsibilities as litigants, and
set a
schedule intended to move thi
s litigation forward at a reason
able pace. Judge Dickson not
ed that
given the large number of pro
se plaintiffs involved in this
case, effective case managem
ent is
difficult under even the best
of circumstances. Where, as
here, nearly two-thirds of the
named
Plaintiffs appear to have sim
ply ignored the Court’s direct
ives, case management becom
es nearly
impossible.
The Court contemporaneously
sent copies of its February 17,
2015 Letter Order to all
named Plaintiffs by both reg
ular and certified mail, using
the last-known addresses pro
vided by
their former counsel. (See
ECF Nos. 14, 15). Judge Dic
kson noted that the United Sta
tes Court of
Appeals for the Third Circuit
has recognized that “[o]rdina
ry mail that is properly sent is
presumed

to be received by the addressee.” Pat

il v. Attorney General ofthe United
States, 326 F. App’x 667,
669 (3d Cir. 2009) (internal citation
omitted). “[Am individual may reb
ut that presumption by
producing sufficient contrary evid
ence, such as a sworn affidavit
support by circumstantial
evidence corroborating the claim of
non-receipt.” Id. In this case, of all
of the copies that the Court
sent out by ordinary mail more than
two months ago, only a few were
returned. Specifically, the
Post Office returned the mailings
sent to Plaintiffs B. Calico-Hickey
, Anthony Wedo and Carrie
Wedo as “undeliverable.” Judge Dic
kson stated that the remaining Plainti
ffs are presumed to have
received the Court’s February 17,
2015 Order.
With regard to the Plaintiffs whose
copies of the February 17, 2015 Ord
er were returned
as undeliverable, Judge Dickson not
ed that the Court attempted to con
tact those parties using the
only addresses that those Plaintiffs’
former counsel had on file. (See
ECF Nos. 14, 15). Judge
Dickson further noted that Local
Civil Rule 10.1(a) actually “creates
an affirmative duty for
litigants to inform the court of any
change in their address within sev
en days of said change.”
Archie v, Dep’t of Corr., No. 12-246
6 (RBK), 2015 U.S. Dist. LEXIS
7783, *3 (D.N.J. Jan. 23,
2015); see also L. Civ. R. 10.1(a)
(“Counsel and/or unrepresented par
ties must advise the Court of
any change in their or their client’s
address within seven days of being
apprised of such change by
filing a notice of said change wit
h the Clerk.”). “Courts in this dist
rict have held that dismissing a
plaintiffs complaint is an approp
riate remedy for failing to comply
with the Rule.” Archie, 2015
U.S. Dist. LEXIS 7783 at *3..4 (co
llecting cases). The United States
Court of Appeals for the Third
Circuit has likewise found that dism
issal is an appropriate sanction
where a plaintiff has not
provided the Court with an accurate
mailing address. See McLaren v.
NJ.State Dept. ofEduc., 462
F. App’x 148, 149 (3d Cir. 2012)
(“[Although courts are normally
required to consider whether a
lesser sanction would be approp
riate, ‘[t]he district court could
not contact [the plaintiff] to
threaten [her] with some lesser san
ction. An order to show cause why
dismissal was not warranted
or an order imposing sanctions wou
ld only find itself taking a round
trip tour through the United
States mail.’ Therefore, we con
clude that the District Court
did not abuse its discretion in
dismissing the case as a sanctio
n for McLaren’s failure to pro
vide the Court with an accurate
mailing address.”) (internal citation
omitted).
Judge Dickson stated that the
Court will attempt to send copies
of this Order I Report and
Recommendation to the followi
ng Plaintiffs, at what appears (ba
sed on the Court’s best efforts) to
be their appropriate e-mail add
resses: (1) B. Calico-Hickey
([e-mail]); and (2 and

3) Anthony and Carrie Wedo (listed tog
ether at [e-mail]).
Judge Dickson then
recommended that, if those Plaintiffs
do not timely respond to this Report
and Recommendation
and provide (1) notice of whether they
intend to move forward with this law
suit; and (2) notice of
their current mailing address, those
Plaintiffs’ claims should be dismisse
d without prejudice, as
the Court will have truly exhausted
all avenues of attempting to secure thei
r participation in this
case.
For the balance of the Plaintiffs in
this matter (i.e., those Plaintiffs, oth
er than the three
expressly discussed above, who did
not attend the March 27, 2015 confere
nce or contact the Court
regarding their intentions in this mat
ter), this Court finds that the only
viable course of action
would be to dismiss their claims wit
hout prejudice pursuant to Federal
Rule of Civil Procedure
41(b). In short, Judge Dickson found
that those Plaintiffs’ failure to partici
pate in this action makes
adjudication of their claims imposs
ible and, in such circumstances, “[a]
District Court has the
authority to dismiss a suit sua sponte
for failure to prosecute by virtue of
its inherent powers and
pursuant to Federal Rule of Civil Pro
cedure 41(b).” See Shipman v Delawa
re, 381 F. App’x 162,
164 (3d Cir. 2010); Parks v. Ingersoll-R
and Co., 380 F. App’x 190, 195-96
(3d Cir. 2010) (noting
the United States Supreme Court
has held that Fed. R. Civ. P. 41(
b) allows for sua sponte
dismissals in the context of a failure
to prosecute).
To date, the Court has received no
objections with respect to Magistrate
Judge Dickson’s
May 4, 2015 Report and Recommen
dation, nor have Plaintiffs Calico
Hickey, Wedo, and Wedo
submitted letters to the Court by Ma
y 25’ 2015 as Ordered by Judge Dic
kson, and for good cause
shown,
IT IS on this

day of June, 2015

ORDERED that the Report and Rec
ommendation of Magistrate Judge
Dickson, filed on
April 13, 2015 [Docket Entry No. 21]
, is hereby ADOPTED as the finding
s of fact and conclusions
of law of this Court; and it is further
ORDERED that pursuant to Fed
eral Rule of Civil Procedure 41(
b), the claims of the
following Plaintiffs, who are pre
sumed to have received the Court’s
February 17, 2015 Letter
Order, but who neither attended
the March 27, 2015 conference
nor provided the Court with a
reasonable explanation for their
absence: (1) Leonard Calvaruso; (2)
Linda Huffinan; (3) Luke
Jacobsen, Sr.; (4) Marvin Kap
lan; (5) Martin Leonard; (6) Jen
nifer Leonard; (7) Nicholas
Maneino; (8) Walter Meshenbe
rg; (9) Robert Miller; (10) Tracy
Miller; (11) Lyn Miller-

Oestereich; (12) Lawrence Ogbogu
; (13) Lucy Cox; (14) Charlotte
O’Brien; (15) Andrew
O’Brien; (16) Darryl Peck; (17) Wallin
gford Reid; and (18) Elizaveta Sm
olovik are dismissed
without prejudice; and it is further
ORDERED that because Plaintiffs
(1) B. Calico-Hickey; (2) Anthony
Wedo and/or (3)
Carrie Wedo failed to timely pro
vide letters to the Court (a) confirm
ing whether they wish to
proceed with this litigation; and
(b) providing their current mailing
addresses, said Plaintiffs’
claims are dismissed, without prejud
ice, for failure to prosecute pursuant
to Federal Rule of Civil
Procedure 41(b), and as a sanction
for their failure to comply wjh Loc
al Civil Rule 10.1(a).
IT IS SO ORDERED.

United States District Judge