HENRY v. WAL-MART STORES, INC. et al

Filing 16

OPINION & ORDER granting 15 Motion to Dismiss for Lack of Prosecution ***CIVIL CASE TERMINATED. Signed by Chief Judge Jose L. Linares on 6/20/2018. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No.: 17-3633 (JLL)
HAWAH HENRY,
OPINION & ORDER

Plaintiff,
v.
WALMART STORES, INC.,
Defendant.

IT APPEARING THAT:
1. This matter comes before the Court by way of the motion by Defendant Walmart Stores,
Inc. to dismiss Plaintiff Hawah Henry’s Complaint for lack of prosecution, pursuant to
federal Rules of Civil Procedure 37 and 41. (ECf No. 15). Plaintiff failed to oppose or
otherwise respond to Defendant’s Motion within the time allotted by the federal Rules of
Civil Procedure and the Local Civil Rules.
2. In or around April 2017, Plaintiff filed a complaint against Defendant in the Superior Court
of New Jersey, Law Division, Essex County, alleging a single cause of action for personal
injury that occurred on Defendant’s premises.

(ECf No. 1-2).

On May 22, 2017,

Defendant removed the case to this Court. (ECF No. 1).
3. On August 14, 2017, a scheduling conference was held before the Honorable Joseph A.
Dickson, U.S.M.J. (ECf No. 6). On August 15, 2017, Judge Dickson issued a Scheduling
Order, which required, inter a/ia, all written discovery to be completed by September 30,
2017. (ECF No. 7).

4. Pursuant to the Scheduling Order, Defendant served Plaintiff on August 16, 2017 with a
Demand for form A IntelTogatories, Supplemental Interrogatories, and a first Notice to
Produce. (ECF No. 15-5). Plaintiff did not respond, and Defendant sent Plaintiff a letter
on October 27, 2017 requesting a response. (ECF No. 15-6).

On January 30, 2018,

Defendant sent a letter to Judge Dickson, informing the Court that Plaintiff has yet to
respond, and requesting that the Court extend fact discovery and order Plaintiff to respond
to all outstanding discovery requests. (ECF No. 9). Accordingly, Judge Dickson ordered
that Plaintiff respond to Defendant’s letter by February 7, 2018. (ECF No. 10).
5. On february 6, 2018, Plaintiffs counsel sent a letter to Judge Dickson, informing the Court
that their office was having a difficult time locating Plaintiff and recently learned that
Plaintiff had moved to Liberia. (ECf No. 11). The letter further stated that Plaintiffs
counsel needed additional time to locate a valid address in Liberia in order to forward
interrogatory answers and HIPPA authorization forms for Plaintiffs review and signature.
(Id.).
6. On March 30, 2018, Plaintiffs counsel sent a follow-up letter to Judge Dickson, informing
the Court that their office found a valid address in Liberia and have been in communication
with Plaintiff. (ECF No. 12). According to Plaintiffs counsel, Plaintiff was advised on
the status of this litigation and indicated that she has no immediate plans to return to New
Jersey.

(Id.).

Plaintiffs counsel stated in their letter that, next time they speak with

Plaintiff, they will attempt to get a date certain for her to travel back to New Jersey and
advise her that the case may be dismissed “if she is unable to participate in the prosecution
of her personal injury claim.” (Id.).

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7. On May 9, 2018, Defendant sent an additional letter to Judge Dickson. (ECF No. 13). In
its letter, Defendant stated that it reached out to Plaintiffs counsel by email and telephone,
but has not heard a response. (Id.). Defendant fttrther stated that it has yet to receive any
response to its interrogatories or other discovery requests, which were “long overdue.”
(Id.). Defendant requested that Judge Dickson order Plaintiff to respond to all outstanding
discovery or be subject to dismissal. (Id.).
8. In a Text Order issued on May 10, 2018, Judge Dickson granted Defendant “permission to
file a formal motion seeking the relief requested in its May 9, 2018 letter.” (ECF No. 14).
Accordingly, Defendant filed this Motion on May 25, 2018, pursuant to Federal Rules of
Civil Procedure 37 and 41. (ECF No. 15).
9. Under Federal Rule of Civil Procedure 37(d), the Court may sanction a party for failing to
comply with discovery requests, which includes the faiLure to serve answers to
intelTogatories. One possible sanction is for the Court to dismiss the action. See Fed. R.
Civ. P. 37(d)(3); Fed. R. Civ. P. 37(b)(2)(A)(v). Additionally, under federal Rule of Civil
Procedure 41(b), “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules
of Civil Procedure] or a court order, a defendant may move to dismiss the action or any
claim against it.”
10. Here, Plaintiff never responded to Defendant’s August 15, 2017 demand for interrogatories
and production of documents. despite Defendant’s multiple good faith attempts to contact
Plaintiff and Judge Dickson’s repeated intervention. Plaintiffs failure to prosecute this
case is further evidenced by the fact that she never filed any response to Defendant’s
Motion to Dismiss. For these reasons,

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of June, 2018,

IT IS THEREFORE, on this

ORDERED that Defendant’s Motion to Dismiss Plaintiffs Complaint for lack of

prosecution, (ECF No. 15), is hereby GRANTED; and it is further
ORDERED that Plaintiffs Complaint is hereby DISMISSED; and it is further
ORDERED that the Clerk of the Court shall mark this case CLOSED.
SO ORDERED.

Chief Judge, United States District Court

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