D'ANGELO v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al
OPINION. Signed by Judge Stanley R. Chesler on 9/28/2017. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NEW JERSEY DEPARTMENT OF
CORRECTIONS, et al.,
Civil Action No. 14-5693 (SRC)
CHESLER, District Judge
This matter was initiated by Order To Show Cause, issued by Magistrate Judge Waldor
on July 24, 2017, directing pro se Plaintiff Thomas D’Angelo to show cause why the abovecaptioned lawsuit should not be dismissed for failure by Plaintiff to prosecute his action pursuant
to Federal Rule of Civil Procedure 41(b) [docket entry 54]. Judge Waldor’s Order To Show
Cause set a date, time and location for the show cause hearing and expressly warned that should
Plaintiff fail to appear at the hearing, as ordered, the Court would dismiss the case with
prejudice. Plaintiff failed to appear at the show cause hearing, failed to file any written
submission indicating why the action should not be dismissed or otherwise respond to the July
24, 2017 Order To Show Cause. Accordingly, the magistrate judge issued a Report and
Recommendation (“R&R”) on August 31, 2017 pursuant to Fed. R. Civ. P. 72(b), L. Civ. R.
72.1(a)(2), and 28 U.S.C. § 636(b)(1)(C) [docket entry 55]. In the R&R, Judge Waldor indicates
that, in addition to his failure to appear at the show cause hearing, Plaintiff has repeatedly failed
to appear for court conferences and has flagrantly ignored court orders. The magistrate judge
recommends that this Court dismiss Plaintiff’s Complaint with prejudice.
The time for filing objections to the R&R has expired. 28 U.S.C. § 636(b)(1)(C) (“Within
fourteen days after being served with a copy, any party may serve and file written objections to
such proposed findings and recommendations as provided by rules of court.”). No objections
have been filed. This Court has reviewed Judge Waldor’s R&R. It accepts and agrees with
Judge Waldor’s findings and recommendation in whole.
Federal Rule of Civil Procedure 37 permits the Court to “dismiss the action . . . or render
a judgment by default against the disobedient party.” Roadway Express v. Piper, 447 U.S. 752,
763 (1980) (citations omitted). When dismissing an action as a sanction, a court should weigh
the following factors:
(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). While the magistrate
judge did not explicitly weigh these Poulis factors, the considerations they embody are clearly
incorporated into her analysis. As the R&R indicated, Plaintiff has repeatedly flouted the court’s
orders. This behavior demonstrates deliberate and personal responsibility by Plaintiff for his
misconduct as well as a history of non-compliance. His failure to obey the Court’s orders causes
prejudice to Defendants, who are impeded in their efforts to develop their defenses and attempt
to resolve this matter. Moreover, Plaintiff has disregarded the magistrate judge’s Order To Show
Cause, giving the Court no reason as to why his action should not be dismissed, further
indicating that his conduct in disobeying the Court’s orders has been willful. Sanctions short of
dismissal will not be effective, as Plaintiff has demonstrated disregard for the Court’s authority
and no interest in pursuing his legal action. Without Plaintiff’s active participation in prosecuting
his claims and developing the case through discovery and motion practice, no meaningful
evaluation of the merits of his claims can be conducted. For these reasons and the reasons set
forth in Judge Waldor’s R&R, Plaintiff’s behavior warrants imposing the sanction of dismissal
pursuant to Rule 37.
Accordingly, this Court will adopt the R&R issued on August 31, 2017 [docket entry 55]
as the opinion of the Court and will dismiss Plaintiff’s Complaint with prejudice pursuant to
Federal Rule of Civil Procedure 37. An appropriate form of Order will be filed.
s/Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
DATED: September 28, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?