GILCHRIST v. VERIZON et al
OPINION. Signed by Judge John Michael Vazquez on 4/5/17. (DD, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-3014
VERIZON, ET AL.,
John Michael Vazguez, U.S.D.J.
The present matter comes before the Court on Defendants Verizon New Jersey Inc., Lolita
S. Jones, and Amy Serrano’s (collectively “Defendants”) motion to dismiss the complaint for
failure to comply with Court Orders and failure to prosecute pursuant to Federal Rules of Civil
Procedure 37 and 41(b). Plaintiffs counsel wrote a letter “not consenting [to] and not opposing”
this motion.1 This motion was decided without oral argument pursuant to Federal Rule of Civil
Procedure 78 and Local Civil Rule 78.1. The Court has considered the parties’ submissions and
grants Defendants’ motion.
BACKGROUND & PROCEDURAL HISTORY
Plaintiff Rhelda Gilchrist (“Plaintiff’) initiated this action on March 12, 2015 in New
Jersey Superior Court. D.E. 1. Plaintiffs complaint asserts various claims, including: violation
of public policy, violations of “Federal and State of New Jersey Constitutional precepts,”
Defendants’ brief in support of its motion to dismiss the complaint will be referred to hereinafter
as “Def. Br.” (D.E. 26).
violations of the “Federal Civil Rights Act (Title VII)” and the “New Jersey Law Against
Discrimination (LAD).” Id. Defendants subsequently removed the action to this Court. Id. On
June 3, 2015, Defendants answered Plaintiffs complaint. D.E. 6. Defendants now move to
dismiss for Plaintiffs failure to comply with Federal Rules of Civil Procedure 37 and 41.
Defendants allege that “Plaintiff has failed to fully comply with her discovery obligations.”
Def. Br. at 6.
Specifically, Defendants contend that (1) Plaintiff refused to show up for her
deposition on September 1, 2016; (2) Plaintiff failed to appear for a settlement conference on
November 4, 2016, in violation of the Court’s Order; (3) Plaintiff failed to appear on November
17, 2016, as ordered by the Court’s November 4, 2016 Order to Show Cause; and (4) Plaintiffs
counsel has confirmed that Plaintiff has not communicated with him during the foregoing dates.
Defendants allege that they issued a Notice of Deposition on August 8, 2016, scheduling
Plaintiffs deposition for September 1, 2016. See Certification of John T. McDonald (“McDonald
Plaintiffs counsel notified Defendants that Plaintiff was “going to be out of town on
9/1/2016 and demanded that her deposition be rescheduled.” Id., Ex. A. Additionally, Plaintiffs
counsel informed Defendants’ counsel that Plaintiff was not being cooperative and refused to
attend the deposition. Id.
On August 30, 2016, the Court held a telephone status conference where the parties’
counsel informed the Court of these issues. McDonald Cert.
participate in a settlement conference.
Both parties’ counsel agreed to
Magistrate Judge Waldor ordered an in-person
settlement conference to be held on October 27, 2016, which was subsequently rescheduled to
November 4, 2016. D.E. 20, 22. Plaintiff failed to appear for this conference, despite numerous
letters and telephone calls from Plaintiffs counsel informing Plaintiff of the conference. D.E. 23
(noting Plaintiffs failure to appear for her deposition or for the Court-ordered conference). At
this time, Plaintiffs counsel indicated the difficulties he had in reaching Plaintiff, and Plaintiffs
refusal to cooperate with him or listen to his advice. Def. Br. at 3.
Judge Waldor then issued an Order to Show Cause, requiring Plaintiff to appear on
November 17, 2016, to explain why this suit should not be dismissed for failure to prosecute. D.E.
23. Plaintiffs counsel contacted Plaintiff, advising her that she has “not prosecuted [her] case,”
and informing her of Judge’s Waldor’s Order to Show Cause. D.E. 24. This letter was sent to
Plaintiff via certified mail. Id. Again, Plaintiff did not appear in response to Judge Waldor’s Order
to Show Cause, or to Plaintiffs counsel’s letter. D.E. 25. Thus, the Court granted Defendants
leave to move to dismiss for failure to prosecute. Id.
On Noven-iber 21, 2016, Defendants’ moved to dismiss for failure to prosecute and comply
with the Court’s Orders. Plaintiffs counsel filed a letter on the docket, which indicated that he
“ha[s] not been in contact with [his] client for several months.” D.E. 28. Thus, Plaintiffs counsel
stated that he wanted the record to reflect that “[he is] not consenting [to] and not opposing
[Defendants’ motion].” Id.
The Federal Rules of Civil Procedure authorize courts to impose sanctions for failure to
provide discovery, obey court orders, or prosecute a case. See Fed. R. Civ. P. 37(b)(2), 41(b).2 In
Federal Rule 37 provides in relevant part:
fails to obey an order to provide or pen-nit
If a party
discovery, including an order under Rule 26(f), 35, or 37(a),
the court where the action is pending may issue further just
orders. They may include the following:
(v) dismissing the action or proceeding in whole or in part.
such instances, dismissal may be an appropriate penalty. Id. Generally, in determining whether
to impose an involuntary dismissal, a court considers the factors set forth in Foitlis
fire and Casttahy Co., 747 F.2d $63, $68 (3d Cir. 1984). These factors include:
(1) The extent ofthe party’s personal responsibility; (2) the prejudice
to the adversary caused by the plaintiffs 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. No single Foulis factor is determinative and dismissal may be appropriate even if some of
the factors are not met. See Mindek e. Rigatti, 964 F. 2d 1369, 1373 (3d Cir. 1992). An analysis
of the Foulis factors shows that dismissal is appropriate here.
1. Plaintiffs Personal Responsibility
The Court finds that Plaintiff is personally responsible for her failure to comply with Court
Orders and discovery obligations.
Plaintiffs counsel has made numerous attempts to reach
Plaintiff, and sent each of the Court’s Orders to Plaintiff via certified mail. D.E. 24, 27, 28.
Therefore, it is Plaintiff, and not her counsel, who is responsible for her failure to prosecute this
matter and comply with the Court’s Orders.
2. Prejudice to Defendants
“Under the second Poitlis factor, the Court examines the prejudice to other parties caused
by the delay, including considering whether the party’s conduct has resulted in extra costs, repeated
delays, and the need to file additional motions in response to the abusive behavior of the
responsible party.” Chiarutti v. Taylor, No. 02-4400, 2010 WL 1371944, at *3 (D.N.J. Mar. 31,
Fed. R. Civ. P. 37(b)(2)(A)(v). Federal Rule 41 provides for involuntary dismissal when “[a]
plaintiff fails to prosecute or to comply with these rules or a court order.” Fed. R. Civ. P. 41(b).
In such cases, “a defendant may move to dismiss the action or any claim against it.” Id.
2010) (internal quotation marks omitted). Moreover, “the burden imposed by impeding a party’s
ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Ware v.
Rodate Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003).
Defendants have been prejudiced by Plaintiffs failure to appear for her deposition and
otherwise participate in the discovery process. Defendants have been unable to effectively defend
the case and resolve it in a timely manner. See Chiarulli, 2010 WL 1371944, at *3 (“Defendants
are prejudiced by Plaintiffs failure to appear at any of the Scheduling Conferences or otherwise
pursue this case beyond the pleadings stage because they are unable to defend the case and resolve
it in a timely manner.”). Therefore, this factor favors dismissal.
3. History of Dilatoriness
The third factor also favors Defendants. “Failure to appear for court conferences and
 creates a history of dilatoriness.”
Naik v. Boston Consulting Grp., No. 14-03 097,
2017 WL 424902, at *5 (D.N.J. Jan. 12, 2017); see also Hoffman v. Palace Entm ‘t, 621 Fed. Appx.
112, 115 (3d Cir. 2015) (affirming a finding of history of dilatoriness where plaintiff “turned over
little to no discovery.
failed to appear for her deposition, and failed to be present telephonically
for a pretrial hearing” and “offered often-inconsistent excuses for her behavior”).
As noted, Plaintiff has not appeared for Court-ordered conferences and refused to attend
her deposition. Indeed, Plaintiff has failed to communicate with, or respond to, her own counsel.
Thus, Plaintiffs conduct constitutes a “history of dilatoriness” for which she has failed to provide
4. Willfulness or Bad Faith
If, in determining the fourth Poitlis factor, “the record is unclear as to whether a party acted
in bad faith,” then “a consistent failure to obey orders of the court, ‘at the very least, renders [a
party’s] actions willful for the purposes of [this] factor.” Hunt—Rtthle v. Lord, Worrett & Richter,
Inc., No. 10-4520, 2012 WL 234041$, at *5 (D.N.J. June 19, 2012) (quoting Martino v. Solaris
Health Sys. Corp., No. 04—6324, 2007 WL 1959226, at *5 (D.N.J. June 29, 2007)).
Here, Plaintiff consistently failed to comply with Court Orders. Plaintiff refused to be
deposed and did not appear at Court-ordered conferences on November 4, 2016 and on November
17, 2016. furthermore, Plaintiff has not provided any explanation, much less a credible one, for
her failure to comply.
Thus, the Court finds Plaintiffs non-compliance to be willful and
intentional. See Hayes v. Nestor, No. 09-6092, 2013 WL 5176703, at *5 (D.N.J. Sept. 12, 2013)
(finding plaintiffs failure to comply with court orders, coupled with a lack of justification to
constitute “willful and intentional [non-compliance]”). Factor four, therefore, favors dismissal.
5. Effectiveness of Alternative Sanctions
“The Third Circuit has identified a number of alternative sanctions available to a court,
including ‘a warning, a formal reprimand, placing the case at the bottom of the calendar, a fine,
the imposition of costs or attorney fees
[or] the preclusion of claims or defenses.” Smith cx
rel FlAil v. Aitegra Credit Co., No. 02-8221, 2004 WL 2399773, at *7 (E.D. Pa. Sept. 22, 2004)
(quoting Titus v. Mercedes—Benz of N. Am., 695 f.2d 746, 759 n.6 (3d Cir. 1982)). However,
whereas here, Plaintiff herself has repeatedly ignored the Court’s warnings and continues to not
appear, alternative sanctions are considered ineffective. See Id.
Since Plaintiff has not replied to her counsel or this Court’s attempt to contact her, the
Court does not find that alternative sanctions would be effective. Therefore, this factor weighs in
favor of dismissal.
6. Meritoriousness of the Claims
Under factor six, Defendants argue that Plaintiffs abandonment of her claims “speak
volumes regarding their lack of merit.” Def. Br. at 7. Additionally, Defendants state that “this
Court need not even consider the issue of meritoriousness because the satisfaction of all six Poulis
factors is not required when dismissing a case for failure to prosecute under Rule 41 or failing to
meet discovery obligations under Rule 37.” Id. at 7-8.
The Court finds that it is too early to evaluate the merit of Plaintiffs claims. However, as
Defendants note, the Court need not find that all six Pottlis factors are present in order to grant
dismissal. See Solomon v. Atl. City Hilton Casino & Resort, No. 10-5701, 2013 WL 3070884, at
*6 (D.N.J. Apr. 8, 2013). Thus, the Court finds factor six to be neutral in its analysis but this
finding does not change the Court’s ultimate conclusion.
The Court grants Defendants’ motion and dismisses Plaintiffs complaint with prejudice.
See Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962) (stating that federal courts have authority
to dismiss a plaintiffs action for failure to prosecute with prejudice) (emphasis added).
In sum, the Court GRANTS Defendants’ motion. Plaintiffs complaint is dismissed with
prejudice. An appropriate Order accompanies this Opinion.
Date: April 5, 2017
UNITED STATES DI’fRI’T JUDGE
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