GRANADO et al v. BRYAL EXPRESS LLC

Filing 25

ORDER ADOPTING 23 REPORT AND RECOMMENDATIONS; This action is DISMISSED without Prejudice (n/m). Signed by Judge Katharine S. Hayden on 11/18/2021. (ams, )

Case 2:20-cv-08884-KSH-CLW Document 25 Filed 11/18/21 Page 1 of 4 PageID: 47

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ARTHUR GRANADO and VICTORIA
GRANADO,
Plaintiffs,

Civil Action No. 20-8884 (KSH) (CLW)

v.
BRYAL EXPRESS LLC,

ORDER OF DISMISSAL

Defendant.

In this action, plaintiffs sought damages for a motor vehicle accident that occurred in 2017.
The action was removed here from state court on July 14, 2020. (D.E. 1.) On August 9, 2021, after
months of plaintiffs’ counsel failing to attend conferences scheduled by the Court and failing to
comply with orders, Magistrate Judge Waldor issued a report and recommendation recommending
that the Court dismiss the action for failure to prosecute pursuant to L. Civ. R. 41.1. (D.E. 23.) No
party filed objections to the report and recommendation. This Court issued an order on October 13,
2021, alerting plaintiffs of its intent to adopt the report and recommendation and to dismiss the case
pursuant to L. Civ. R. 41.1(a), Fed. R. Civ. P. 41(b), and Poulis v. State Farm Fire & Cas. Co., 747
F.2d 863 (3d Cir. 1984), directing the mailing of notice directly to plaintiffs of the intended action,
and affording plaintiffs an opportunity to show cause by November 3, 2021 why the case should not
be dismissed. No response was forthcoming.

In this circuit, the Poulis factors govern whether a case should be dismissed under Rule
41(b). They examine “(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
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Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Here, those factors point to one conclusion:
dismissal is appropriate.
The first factor favors dismissal. Although plaintiffs had counsel, and counsel’s conduct
at least in part gave rise to the report and recommendation,1 they were personally noticed of the
Court’s intent to dismiss this case for the failures to comply with court orders, among other
conduct. Even after the deadline to object to the report and recommendation had long passed,
the Court afforded plaintiffs themselves an additional three weeks to explain why dismissal
would not be appropriate and received no response.
The second and third factors strongly favor dismissal. This matter has been pending in
this Court for well over fifteen months with no substantive progress. Despite the entry of a
scheduling order, there has been no discernable development of the case, including compliance
with discovery deadlines. The defendant cannot prepare its defense without access to
information and without any insight into how, or whether, plaintiffs intend to litigate. See
Hildebrand v. Allegheny Cnty., 923 F.3d 128, 134 (3d Cir. 2019) (prejudice factor examines such
considerations as the loss of evidence, fading witness memories, and whether the adversary has
been hampered in preparing “‘a full and complete trial strategy’” (citation omitted)); Adams v.
Tr’ees of the N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994)

1

As set forth in this Court’s October 13, 2021 order, counsel’s inconsistent participation in this
action included “(i) failing to update his address in this Court’s records, contrary to L. Civ. R.
10.1(a), resulting in mailed copies of docket entries issued by the Court being returned as
undeliverable; (ii) failing to comply with an order that he update his contact information to
reflect an e-mail address until approximately six months after that order was issued; the lack of
e-mail address being the reason that the Clerk’s Office was required to mail paper copies in the
first place; (iii) failing to attend scheduled teleconferences before Magistrate Judge Waldor on at
least three occasions; and (iv) failing to respond to two orders to show cause issued by
Magistrate Judge Waldor requiring an explanation for the failure to comply with multiple court
orders and to participate in this litigation generally, which also warned of the risk of dismissal
for noncompliance.” (D.E. 24 (internal citations omitted).)
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(prejudice includes deprivation resulting from non-cooperation with discovery). Moreover, the
docket is marked by dilatoriness; even a ministerial order directing plaintiffs’ counsel to provide
an email address so he could receive notices went unheeded for approximately six months.
The fourth factor favors dismissal; although the record does not indicate bad faith, the
silence in response to numerous orders and failure to attend multiple conferences despite having
notice of them is indicative of willful or intentional conduct. As to alternative sanctions, there is
no basis for the Court to conclude that sanctions short of dismissal would be feasible or effective.
Missed conferences were rescheduled multiple times, without compliance. Judge Waldor’s July
21, 2021 order (D.E. 22) requiring an explanation by August 5, 2021 for plaintiffs’ dilatory
conduct and noncompliance, which warned that a recommendation of dismissal would be made
absent compliance with the order, also went ignored. There is no indication that costs could be
shifted, for example, or that an adverse evidentiary instruction could be employed where there is
no indication of how, or even that, plaintiffs intend to pursue their claim.
Finally, the sixth factor is directed to the meritoriousness of the claims using the
pleadings standard. Spanning all of two pages, the complaint allegations are that on June 19,
2017, an unidentified driver for defendant Bryal Express was driving on Route 95N to Route 295
East in Hudson County, as was plaintiff Arthur Granado, with plaintiff Victoria Granado as his
passenger, and that due to some unidentified negligence of the Bryal driver, plaintiffs were
injured. (D.E. 1-1, Compl. ¶¶ 1-3.) This is the epitome of pleading “unadorned, the defendantunlawfully-harmed-me accusations” and “threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” which is insufficient to withstand dismissal under
Fed. R. Civ. P. 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
NOW, THEREFORE, IT IS, on this 18th day of November, 2021,
ORDERED that the report and recommendation (D.E. 23) is ADOPTED; and it is further

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ORDERED that this action is DISMISSED without prejudice and without costs; and it is
further
ORDERED that the Clerk of the Court shall serve a copy of this order upon the following
persons by regular mail:
Arthur Granado
303 3rd Street
Elizabeth, NJ 07206

Victoria Granado
303 3rd Street
Elizabeth, NJ 07206

Josue Jean Baptiste, Esq.
Jean Baptiste & Associates, LLC
892 Broad Street, Second Floor
Newark, NJ 07102

Josue Jean Baptiste, Esq.
Jean Baptiste & Associates, LLC
408 Clifton Avenue, Ground Floor
Clifton, NJ 07011

The Clerk of the Court is directed to close this case.
/s/ Katharine S. Hayden
Katharine S. Hayden, U.S.D.J

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