GONZALEZ v. FEDERAL NATIONAL MORTGAGE ASSOCIATION AS TRUSTEE FOR FANNIE MAE GUARANTEED REMIC PASS-THROUGH CERTIFICATES FANNIE MAE REMIC TRUST 2007-16 et al

Filing 17

OPINION. Signed by Judge Esther Salas on 8/11/2016. (seb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAVID GONZALEZ,
Plaintiff,
v.

Civil Action No. 15-207 (ES) (JAD)
OPINION

FEDERAL NATIONAL MORTGAGE
ASSOCIATION AS TRUSTEE FOR
FANNIE MAE GUARANTEED REMIC
PASS-THROUGH CERTIFICATES
FANNIE MAE REMIC TRUST 2007-16, et.
al,
Defendants.
SALAS, DISTRICT JUDGE
This matter comes before the Court on Defendants’ motion to dismiss the Complaint for
failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (D.E. No. 16). The Court
has considered Defendants’ submission in support of the instant motion and decides the motion
without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth
below, the Court grants Defendants’ motion and dismisses the Complaint without prejudice.
I. Factual and Procedural Background
On January 9, 2015, Plaintiff David Gonzalez instituted this action by filing the Complaint.
(D.E. No. 1). On February 27, 2015, Defendants filed an Answer to the Complaint. (D.E. No. 3).
On May 5, 2015, a Scheduling Conference was held before Magistrate Judge Joseph A. Dickson.
(D.E. No. 4). Both parties attended the Scheduling Conference. Also on May 5, 2015, Judge
Dickson issued a Pretrial Scheduling Order, in which he ordered the parties to attend a Status

Conference on July 20, 2015. (D.E. No. 12). Plaintiff failed to attend the conference. (D.E. No.
14). As a result, Judge Dickson ordered the parties to attend a rescheduled Status Conference to
September 23, 2015. (Id.). On or about September 23, 2015, Plaintiff contacted Judge Dickson
and requested that the September 23, 2015 Status Conference be adjourned. (D.E. No. 15). Judge
Dickson granted Plaintiff’s request and rescheduled the Status Conference for October 1, 2015.
(Id.). The Court has been advised that Plaintiff yet again failed to attend.
On December 11, 2015, Defendants filed the instant motion to dismiss for failure to
prosecute. (D.E. No. 16). As of this date, Plaintiff has failed to oppose or otherwise respond to
the motion. Indeed, the Court has no indication that Plaintiff has participated in this case in any
meaningful way since requesting the adjournment of the status conference on September 23, 2015.
II.

Discussion
Defendants argue that the Complaint should be dismissed pursuant to Federal Rule of Civil

Procedure 41(b) due to Plaintiff’s failure to participate in the litigation. (See D.E. No. 16-2,
Memorandum of Law in Support of Defendants’ Motion to Dismiss Action with Prejudice for
Failure to Prosecute (“Def. Mov. Br.”) at 3-7).
To determine whether to dismiss a plaintiff’s action pursuant to Rule 41(b), the Third
Circuit has set forth six factors that must be considered. Poulis v. State Farm Fire & Cas. Co.,
747 F.2d 863, 868 (3d Cir. 1984) (setting forth “Poulis factors”). Defendants contend that, on
balance, a consideration of the six Poulis factors weighs in favor of dismissal. (Def. Mov. Br. at
5-7). Based on the following analysis of each Poulis factor, the Court agrees with Defendants.
A. The extent of the party’s personal responsibility
Since attending the initial Scheduling Conference on May 5, 2015, Plaintiff has failed to
attend two Status Conferences. Plaintiff has provided no excuse for his absences, despite being

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notified that his attendance was required on each occasion. (See D.E. Nos. 12, 15). The Court
notes that Plaintiff was clearly aware of these dates, as one Status Conference was in fact
rescheduled at Plaintiff’s explicit request. (See D.E. No. 14).
Furthermore, because Plaintiff is proceeding pro se, he alone is responsible for his failure
to follow Judge Dickson’s order to attend the conferences. See Briscoe v. Klaus, 538 F.3d 252,
258 (3d Cir. 2008) (“[A] pro se plaintiff is responsible for his failure to attend a pretrial conference
or otherwise comply with a court’s orders”). As such, the Court finds that the first Poulis factor
weighs in favor of dismissal.1
B. Prejudice to the adversary
Plaintiff’s failure to explain his continued absence from these Court-ordered conferences
suggests that he is no longer diligently pursuing this action. Indeed, Defendants argue that
Plaintiff’s inaction has led to delays in the discovery process and needlessly increased attorneys’
fees. (Def. Mov. Br. at 5). This uncertainty in the litigation is compounded by the fact that Plaintiff
has provided no indication as to when, or whether, he may resume his participation in this case.
As such, the Court finds that the second Poulis factor weighs in favor of dismissal.
C. A history of dilatoriness
Plaintiff’s conduct reflects a history of non-compliance with court orders in this case.
Plaintiff has indicated general awareness of the proceedings by attending the initial Scheduling
Conference, (D. E. Dated 5/5/2015), as well as requesting one adjournment of a Status Conference,

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The Court is mindful that pro se plaintiffs sometimes lack knowledge of procedural rules or may be
unaware of the proper methods of communication with courts in this District. However, to the extent that
Plaintiff may have a valid reason for his inability or unwillingness to attend either conference, his
communication with Judge Dickson regarding the adjournment of the September 23, 2015 Status
Conference indicates that Plaintiff was, at the very least, aware of an available avenue to explain his conduct
to the Court. Because Plaintiff nevertheless failed to provide such an explanation, it is clear that a lack of
legal training or sophistication alone cannot excuse Plaintiff’s conduct in this case.

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(D.E. No. 15). However, his unexplained failures to attend subsequent conferences on July 20,
2015 and October 1, 2015 suggest a pattern of non-compliance with court orders in this case. As
such, the Court finds that the third Poulis factor weighs in favor of dismissal.
D. Whether the attorney’s conduct was willful or in bad faith
As noted above, Plaintiff is proceeding pro se. Plaintiff’s willful disregard for Judge
Dickson’s orders is suggested by his failure to explain his second absence from a court-ordered
status conference, despite the fact that it was rescheduled at his personal request. (See D.E. No.
15). The fact that Plaintiff waited until immediately prior to the conference itself to request the
adjournment further suggests bad faith. The Court finds that the fourth Poulis factor thus weighs
in favor of dismissal.
E. Alternative sanctions
Plaintiff has seemingly had no contact with either the Court or opposing Counsel since the
September 23, 2015 adjournment request—nearly a year ago. As noted above, Plaintiff’s absence
since that date has led to, inter alia, non-compliance with Judge Dickson’s order to attend a
conference on October 1, 2015, (D.E. No. 15), and failure to oppose to the present motion to
dismiss, (D.E. No. 16). The Court has no reason to believe that any sanctions short of dismissal
would be of any avail—indeed, Plaintiff’s continued absence has effectively nullified the Court’s
ability to impose any alternative sanction in the first place. The Court thus finds that the fifth
Poulis factor weighs in favor of dismissal.
F. Meritoriousness of the claim
Defendants argue that the Complaint “is replete with conclusory, vague and often
incomprehensible allegations.” (Def. Mov. Br. at 6). However, neither side has yet presented
substantive argument on the merits of Plantiff’s allegations. Furthermore, as Defendants note,

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Plaintiff’s prolonged absence from the litigation has prevented Defendants from developing a more
complete understanding of the allegations against them. As such, the Court is not prepared to
make a determination as to the meritoriousness of Plaintiff’s allegations at this stage. The Court
thus finds that the sixth factor does not weigh in favor of dismissal.
III.

Conclusion
On balance, the Court concludes that the Poulis factors weigh in favor of dismissing this

action. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) (“[N]ot all of the Poulis factors
need be satisfied in order to dismiss a complaint. Instead, the decision must be made in the context
of the district court’s extended contact with the litigant. Ultimately, the decision to dismiss
constitutes an exercise of the district court judge’s discretion . . . .” (citation omitted)).2
Accordingly, the Court finds that the sanction of dismissal is warranted, and exercises its
discretion to dismiss the Complaint without prejudice. Griffin v. U.S. Postal Serv., 480 F. App’x
168, 170 (3d Cir. 2012) (upholding district court’s dismissal of pro se plaintiff’s complaint without
prejudice due to failure to prosecute and failure to follow court orders).
An appropriate Order accompanies this Opinion.

s/Esther Salas
Esther Salas, U.S.D.J.

2
Although the Court has conducted a Poulis analysis in this case, such analysis is rendered unnecessary
“when a litigant’s conduct makes adjudication of the case impossible.” Shipman v. Delaware, 381 F. App’x
162, 164 (3d Cir. 2010). Here, Plaintiff’s absence from the litigation has indeed made adjudication on the
merits impossible, seemingly obviating the need for a Poulis analysis. Nevertheless, in an abundance of
caution and in light of Plaintiff’s pro se status, the Court conducted the above Poulis analysis and found
that it weighs in favor of dismissal.
Furthermore, the Court notes that Defendants allege numerous discovery violations and
deficiencies as further justification for dismissal of the action pursuant to Rule 41(b). (See Def. Mov. Br.
at 2-3, 6). However, Defendants have not indicated any attempt to raise their discovery-related grievances
to Judge Dickson prior to filing the present dispositive motion. As such, while Plaintiff’s alleged discovery
violations may provide further grounds for sanctions under Rule 41(b), the Court did not considered them
in support of dismissal of this action.

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