KHAN v. THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA et al
OPINION. Signed by Judge John Michael Vazquez on 8/2/2017. (ld, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UMAIR A. KHAN,
Civil Action No. 16-253
THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA, JOHN DOES 1 TO
10, XYZ CORPORATIONS 1 TO 10,
John Michael Vazguez, U.S.D.J.
This matter comes before the Court on the unopposed motion to dismiss, for failure to file
an amended complaint, made by Defendant The Guardian Life Insurance Company of America
(“Guardian”). D.E. 16. The Court reviewed all submissions made in support and considered the
motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the
reasons that follow, Defendant’s motion is GRANTED.
FACTS AND PROCEDURAL HISTORY
This case concerns Defendant’s alleged failure to fully pay short-term disability benefits
to Plaintiff Umair Khan. Plaintiff filed this case in New Jersey state court asserting claims under
New Jersey state law. Defendant removed the matter to this Court on January 14, 2016. D.E. 1.
On April 19, 2016, this Court dismissed the complaint for failure to state a claim, holding that
Plaintiffs state law claims were preempted by Section 502(a) of ERISA. The dismissal was
without prejudice and the Court provided Plaintiff leave to file an amended complaint within thirty
days. D.E. 11. Judge Falk then granted two stipulations to extend the deadline to submit an
amended complaint.’ With the extensions, Plaintiffs new deadline by which to file an amended
complaint was November 3, 2016. D.E. 15. Plaintiff has not yet filed an amended complaint.
Due to Plaintiffs failure to file an amended complaint, Defendant filed this motion to
dismiss on December 20, 2016. Defendant moves to dismiss this case with prejudice for Plaintiffs
failure to file an amended complaint by the Court-imposed deadline. D.E. 16. Though Defendant
does not cite any legal grounds by which to dismiss this matter, the Court considers this motion as
one for dismissal for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
Furthermore, in its Certification supporting the motion, Defendant provides the Court with the
following information: (1) Plaintiffs claim for the disputed disability benefits was reversed
through administrative appeal and the benefits have been paid to Plaintiff in full; (2) Plaintiff
settled the case with Guardian without the assistance of counsel, and (3) Plaintiffs attorney has
been “relieved as counsel” for Plaintiff. ManiloffCert.
¶J 3-9, D.E. 16.
LAW AND ANALYSIS
The sanction of dismissal is an available tool within the district court’s discretion to
regulate its own docket. See Guver v. Beard, 907 F.2d 1424, 1429-30 (3d Cir. 1990). However,
dismissal with prejudice is drastic “sanction of last resort.” Id. at 1429. As such, dismissal is
warranted only in extreme cases. Pottlis v. State farm fire & Cas. Co., 747 F.2d 863, 867-68 (3d
Cir. 1984). Under Rule 41, a defendant may move to dismiss an action against it where the plaintiff
fails to prosecute its claim, or to comply with the Federal Rules or a court order. Fed. R. Civ. P.
Plaintiffs first stipulation was timely and extended the deadline from May 19, 2016 to August
5, 2016. D.E. 13. The second stipulation was requested four days afier the August 5 deadline, but
the deadline was nevertheless extended to November 3, 2016. D.E. 15.
41(b). When dismissing a case pursuant to Rule 41(b), a court must apply the six-factor Potttis
test to determine whether dismissal is warranted as a sanction against an offending party. Knoll v.
City ofAllentown, 707 F.3d 406, 409 (3d Cir. 2013). The Poidis factors are as follows: (1) the
extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the party’s
conduct; (3) whether the party has a history of dilatoriness; (4) whether the party’s conduct was
willful or in bad faith; (5) the effectiveness of other non-dismissal sanctions; and (6) the claim’s
merit. Hoffman v. Palace Entm
621 F. App’x 112, 114 (3d Cir. 2015) (citing Potilis, 747 F.2d
at 867-68). Not all factors must be satisfied in order to warrant dismissal, nor is any factor
singularly dispositive. James v. Riordan, No. 13-1667, 2016 WL 4544336, at *2 (D.N.J. Aug. 30,
2016) (quoting Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 200$)). In close cases, “doubts should
be resolved in favor of reaching a decision on the merits.” Adams v. Trs. ofN.J Brewety Emps.’
Pension Trust fund, 29 F.3d 863, $70 (3d Cir. 1994) (quoting Scarborough v. Ettbanks, 747 F.2d
871, $78 (3d Cir. 1984)).
Accordingly, the Court will address each Poulis factor in turn.
1. Extent of the Party’s Responsibility
In situations that are directly attributable to a party’s personal failure, this factor ofien
weighs strongly in favor of dismissal. See, e.g., GzftBoxCenter, LLC v. PetBox, Inc., No. 15-4390,
2017 WL 961883, at *2 (D.N.J. Jan. 17, 2017) (holding defendant personally responsible for
failure to retain new counsel and maintain contact with the Court); Hicks v. feeney, 850 F.2d 152,
156 (3d Cir. 1988) (holding that failure to attend scheduled depositions and comply with discovery
requests was personal responsibility of plaintiff); Hoffman, 621 F. App’x at 114 (weighing factor
in favor of dismissal where pro se plaintiff failed to respond to discovery requests and court
Here, Plaintiff failed to submit an amended complaint within either the original thirty days
or the extended deadline of six months. Defs Mot. to Dismiss
¶ 12. Furthermore, according to
Defendant, Plaintiff discharged his counsel in November 2016. Maniloff Cert.
¶ 9. Since that
time, Plaintiff has not filed an amended complaint, responded to this motion, or infonried the Court
that the matter has been resolved.
As such, Plaintiff has effectively abandoned this case.
Accordingly, this factor weighs in favor of dismissal.
2. Prejudice to Other Parties
This factor weighs in favor of dismissal where the offending party’s actions cause prejudice
to other litigants in some fashion. For example, in Emerson v. Thiel College, the Third Circuit
affirmed dismissal of the claim in part because undue delays caused by a plaintiffs failure to
prosecute and comply with court orders were “inherently prejudicial” to the defendant. 296 F.3d
184, 191 (3d Cir. 2002). In GtftBoxCenter, the Court concluded that manifest injustice would result
if the defendants’ counterclaim was not dismissed because the defendants discharged their legal
counsel and provided no indication that new counsel would resume their defense of the matter.
GfiBoxCenter, 2017 WL 961883, at *2.
In this instance, Plaintiffs failure to maintain
communication with both Defendant and the Court and move this matter forward unfairly
3. History of Dilatoriness
In considering a motion to dismiss for lack of prosecution under Fed. R. Civ. P. 4 1(b),
history of dilatoriness may be found where a party, through extensive or repeated actions or lack
thereof, delays or fails to comply with court orders or respond to discovery requests. Adams, 29
F.3d at 874. In considering such actions, the court should examine the party’s behavior throughout
the case; regular or frequent behavior that reflects a history of dilatoriness will weigh in favor of
dismissal for failure to prosecute. Id. at 875 (finding that failure to prosecute a claim for four and
one-half years is a “significant and inexcusable delay,” and “weighs toward, but does not mandate,
dismissal.”). Furthermore, “[i]f compliance [with a court order] is not feasible, a timely request
for an extension should be made to the court.” Pottlis, 747 F.2d at $68.
Plaintiff had no history of dilatoriness prior to the April 19, 2016 Court Order and his first
request for extension was punctual. However, Plaintiff belatedly applied for a second extension
and has not adhered to this new deadline. In addition, Plaintiff failed to provide any explanation
for his delay. Weighing the lack of dilatory history prior to the April 19 Court Order against
Plaintiffs failure to file an amended complaint more than eight months past the extended deadline,
this factor is neutral.
4. Willfulness & Bad Faith Conduct
When evaluating this factor, a court looks for “willful or contumacious behavior” that can
be characterized as “flagrant bad faith.” Adams, 29 F.3d at 875. “Willfulness involves intentional
or self-serving behavior.” Id. Courts have found willful behavior on facts similar to those present
here. For example, in GzftBoxCenter, defendants separated from their legal counsel and failed to
retain new counsel or maintain communications with the other litigants. Although the court
determined that this behavior was not evidence of bad faith, it concluded that defendants’
willfulness still weighed in favor of dismissal. GfiBoxCenter, 2017 WL 961883, at *3•
Here, it appears to the Court that Plaintiff has taken no steps to move this case forward
since his last request for an extension almost a year ago. Moreover, taking Defendant’s factual
allegations as true, Plaintiff no longer has legal representation in this matter and settled the case
without representation. Maniloff Cert.
While there does not seem to be any evidence of bad
faith or malicious intent in so doing, it is difficult to characterize Plaintiffs apparent abandonment
of the case as mere inexcusable neglect. As a result, this factor leans toward dismissal.
5. Alternative Sanctions
Dismissal with prejudice is “the most severe in the spectrum of sanctions,” though it
remains available to the district court as a necessary tool both to penalize the appropriate parties
for their punishable conduct and to deter others from acting similarly. Nat ‘1 Hockey League v.
Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). But “district courts should be reluctant to
deprive a plaintiff of the right to have his claim adjudicated on the merits.” Titus v. Mercedes
Benz, 695 f.2d 746, 749 (3d Cir. 1982).
A court should also consider whether alternative
measures, such as favorable evidentiary treatment and attorneys’ fees and costs related to the delay,
could “chasten [the plaintiff] effectively” without dismissing the case. Adams, 29 F.3d at 876.
Where monetary sanctions do not operate effectively, this weighs in favor of dismissal. See
Emerson, 296 F.3d at 191 (favoring dismissal where monetary sanctions would not be an effective
alternative against a plaintiff proceeding informa pattperis).
Here, the Court finds that Plaintiffs failure to prosecute the claim for over a year following
the April 19, 2016 order is indicative of a desire to abandon this case. Moreover, as represented
by Defendant, Plaintiff has already settled the matter privately with Defendant Guardian Life. See
¶ 3-9. This factor thus leans toward dismissal.
6. Merits of the Claim
In weighing the sixth Foulis factor, courts deem a claim meritorious “when the allegations
of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a
complete defense.” El-Hewie v. Paterson Pttblic Sch. Dist., No. 13-5820, 2015 WL 5306255, at
*5 (D.N.J. Sept. 10, 2015) (quoting Poulis, 747 F.2d at 869-870). Courts in this district treat this
standard analogously with the standard for a Rule 1 2(b)(6) motion to dismiss for failure to state a
claim. See Id. (considering adequacy of the claim using Rule 1 2(b)(6) standard); see also James,
2016 WL 4544336, at *3 (“[T]o determine whether a plaintiffs claim is meritorious for purposes
of [Foulis], courts use the standard for a Rule 12(b)(6) motion to dismiss.
. . .“).
In Hoffman, the
Third Circuit recognized that a plaintiffs meritorious claim will not on its own overcome a finding
that the other factors weigh in favor of dismissal. Hoffman, 621 F. App’x at 116.
In the instant case, the Court previously determined that Plaintiff failed to state a claim,
and Plaintiff has failed to file an amended complaint. Thus, Plaintiff does not demonstrate any
meritorious claims. As such, this factor weighs in favor of dismissal.
In sum, each of the Poulis factors weighs in favor of dismissal or is neutral. Thus, the
Court finds that the balance of factors weigh in favor of dismissal at this time.
For the foregoing reasons Defendant’s motion to dismiss (D.E. 16) is GRANTED.
However, because dismissal with prejudice is a drastic remedy the case is dismissed without
prejudice. Plaintiff shall have thirty days from the date of this Opinion, to show cause why the
matter should not be dismissed with prejudice. If Plaintiff fails to respond within that time, this
case will be dismissed with prejudice. An appropriate Order accompanies this Opinion.
Dated: August 2, 2017
John Michael Vazque1’.’S).J.
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