CAFFREY v. SCOTT et al
Filing
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OPINION filed. Signed by Judge Freda L. Wolfson on 9/28/2011. (mmh)
NOT FOR PUBLICATION [25,26, 27, 28, 29, 30, 31]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________
:
BRIAN MICHAEL CAFFREY,
:
:
Plaintiff
:
:
v.
:
:
:
FREEHOLDER MILDRED S. SCOTT, :
IVAN SCOTT, BRUCE KAPLAN,
:
ANDREA CRAPAROTTA,
:
MIDDLESEX COUNT, MIDDLESEX :
COUNTY BOARD FREEHOLDERS, :
MIDDLESEX COUNTY
:
PROSECUTOR’S OFFICE, ROBERT :
TRAVISANO, et al.,
:
:
Defendants.
:
:
_______________________________ :
Civil Action No. 10-5055
OPINION
WOLFSON, United States District Judge:
Presently before the Court are individual motions to Dismiss by Defendants Bruce
Kaplan, Middlesex County, Middlesex County Board of Freeholders, Middlesex County
Prosecutor’s Office, Mark (Marc) Levy, Robert Travisano, Mildred Scott and Andrea Craparotta
(collectively “Defendants”). This matter arises out of an Amended Complaint filed by Plaintiff
relating to alleged mistreatment he suffered while employed as an investigator with the
Middlesex County Prosecutor’s office. No opposition to the motions has been submitted by
Plaintiff. For the reasons set forth below, the Court will administratively terminate the pending
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motions and will dismiss Plaintiff’s Complaint without prejudice. Further, Plaintiff has sixty
days within which to retain new counsel, or enter an appearance, pro se, and to proceed
accordingly with the timely prosecution of this case.
I. BACKGROUND
On November 24, 2010, Plaintiff filed an Amended Complaint relating to alleged
mistreatment he suffered while employed as an investigator with the Middlesex County
Prosecutor’s office. Between January 12, 2011, and January 26, 2011, Defendants filed
individual Motions to Dismiss in response to the Complaint. As a result, Plaintiff’s opposition
was due, at the latest, on February 7, 2011, and the motion was returnable on February 22, 2011.
However, on February 3, 2011, counsel for Plaintiff wrote to the Court to request that the Motion
date be extended until March 7, 2011. The Court granted Plaintiff’s request for an extension and
reset the motions for March 7, 2011.
Thereafter, on March 4, 2011, without having filed any opposition, counsel for Plaintiff
wrote another letter to the Court in which he requested a further extension of time to respond to
Defendants’ motions. Specifically, in the March 4, 2011 letter, counsel for Plaintiff advised the
Court that he was experiencing health difficulties and that he intended to file a Motion to Amend
the Complaint by March 7, 2011. Plaintiff did not file a Motion to Amend or an Amended
Complaint. On March 9, 2011, this Court held a telephone conference with the parties.
Subsequently, on March 25, 2011, ths Court dismissed the First Amended Complaint against
each of the Defendants and granted Plaintiff until April 9, 2011 to re-open the matter by filing a
Second Amended Complaint on or before April 9, 2011.
On April 9, 2011, Plaintiff filed a Second Amended Complaint. Thereafter, between July
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13, 2011 and July 28, 2011, Defendants filed individual Motions to Dismiss. As a result,
Plaintiff’s opposition was due, at the latest, on August 22, 2011, and the motion was returnable
on September 6, 2011. However, more than two weeks after his opposition was due and without
having filed any opposition or a further request for an extension, on September 7, 2011, counsel
for Plaintiff wrote another letter to this Court requesting that the Motions be re-set once again,
this time until October 3, 2011. In his letter, counsel for Plaintiff again advised the Court that he
was suffering from health issues and further advised the Court that if his symptoms did not
improve by September 12, 2011, he would hire separate counsel to prepare a response to the
motions. In addition, counsel for Plaintiff advised the Court that he had “already begun [sic] the
process of finding someone.” In response to the letter from Plaintiff’s counsel, on September 9,
2011, counsel for Defendants wrote to the Court to advise that while they understood that
Plaintiff’s counsel was experiencing health difficulties, several defense counsel involved in the
above-captioned matter had other cases with Plaintiff’s counsel in which he was actively
participating. As a result of the submissions by counsel, as well as the numerous and continued
delays, on September 14, 2011, the Court entered a Letter Order requiring counsel for Plaintiff to
immediately serve upon Plaintiff all “letters submitted to the Court by counsel in this matter,
both Plaintiff’s counsel and Defense counsel, as well as all responses by this Court.” In addition,
the Court directed Plaintiff to submit, within five days of the date of the Order, a Certification
demonstrating that such service had been made on Plaintiff. Thus, counsel’s Certification was
due, at the latest, on September 21, 2011. However, as of September 26, 2011, counsel for
Plaintiff had not filed the required Certification and has otherwise neglected to contact the Court.
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II. LEGAL STANDARD
Federal Rule of Civil Procedure 16(f) provides that a court may issue any just orders if a
party or its attorney, “fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f). In
addition, Federal Rule of Civil Procedure 41(b) allows a party to move for dismissal for lack of
prosecution. Fed. R. Civ. P. 41(b). Similarly, a court may dismiss a case under its inherent
power to “manage [its] own affairs so as to achieve the orderly and expeditious disposition of
cases.” Spain v. Gallegos, 26 F.3d 439, 454 (3d Cir. 1994)(citations omitted).
In deciding whether dismissal is appropriate, courts must consider the following six
factors set forth in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984):
(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. Id. Importantly, “not all of the Poulis factors need to be
satisfied in order to dismiss a complaint.” Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.
1992). Indeed, as the Third Circuit recognized in Mindek, “District court judges, confronted
with litigants who flagrantly violate or ignore court orders, often have no appropriate or
efficacious recourse other than dismissal of the complaint with prejudice.” Id. However,
dismissal with prejudice is a harsh remedy and should be reserved for only the most extreme
cases as “the policy of the law is to favor the hearing of a litigant’s claim on the merits.” Spain,
26 F.3d at 454.
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III. LEGAL ANALYSIS
Initially, the first Poulis factor requires the Court to consider the extent of Plaintiff’s
responsibility for the failures. Poulis, 747 F.2d at 868. In the instant matter, the continued delays
and failures to comply with Court-imposed deadlines and Orders rest squarely on the shoulders
of Plaintiff’s counsel. Indeed, the Court does not know if Plaintiff is aware of the ongoing delays
in this matter, let alone whether Plaintiff himself bears any responsibility for the continued
failures to meet Court-imposed deadlines and orders. In that regard, the Court finds the Third
Circuit’s application and balancing of the Poulis factors in three noteworthy cases to be
instructive.
First, in Poulis, the Third Circuit affirmed a district court’s dismissal of a complaint with
prejudice despite the fact that the plaintiffs themselves were not personally responsible for the
failures. Poulis, 747 F.2d at 869-70. There, the Third Circuit affirmed the dismissal with
prejudice even though the court explained that it would have imposed alternative sanctions
instead. Id.
In Scarbourugh v. Eubanks, 747 F.2d 871, 875 (3d Cir. 1984), the Third Circuit vacated
and remanded a district court’s dismissal with prejudice because it was based solely on plaintiff’s
attorney’s failure to amend an unclear pretrial statement. Id. There, plaintiff’s attorney had
complied with all the other court’s orders, rules of civil procedure, and discovery requests, and
there was no evidence of the party’s personal responsibility. Id.
Finally, in Dunbar v. Triangle, 816 F.2d 126, 129 (3d Cir. 1987), the Third Circuit
vacated a 41(b) dismissal with prejudice because there was no evidence that plaintiff knew “of
her counsel’s defaults or otherwise bore some personal responsibility for his professional
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irresponsibility.” There, the Third Circuit instructed that courts must make litigants aware of
pending 41(b) motions and put litigants “on notice of possible jeopardy to his or her legal
interests by counsel’s conduct at a time when the client can take appropriate action and when the
Poulis balance has not been irretrievably struck in favor of the moving party.” Id. at 129.
In the instant matter, as discussed above, Plaintiff is represented by counsel and, as such,
Plaintiff’s counsel has been responsible for complying with all orders and deadlines imposed by
the Court. However, as set forth above, despite the fact that counsel for Plaintiff requested and
has been granted numerous extensions in this matter, Plaintiff’s counsel failed to meet deadlines
and to comply with Court orders. On several occasions, counsel for Plaintiff advised the Court
that he had started to seek the aid of other attorneys in this representation to ensure that he could
meet deadlines and adequately prosecute this case. Despite this representations, however, no
additional counsel has entered an appearance for Plaintiff in this matter. And, indeed, deadlines
and orders imposed by this Court have continued to go unmet.
Moreover, in an effort to ensure that Plaintiff himself was apprised of counsel’s inaction,
on September 14, 2011, the Court ordered counsel for Plaintiff to immediately serve on Plaintiff
all correspondence between this Court and counsel and file a certification within five days stating
that such service had been made on Plaintiff. Counsel for Plaintiff failed to do this. Thus, at this
juncture, the Court is not aware whether Plaintiff has been advised of counsel’s ongoing failures
in this matter, and, therefore, the Court does not know whether Plaintiff himself bears any
responsibility for the ongoing failures.
The next factor evaluates whether there is prejudice to the adversary caused by the party’s
actions or inactions. Poulis, 747 F.2d at 868. Here, Defendants continue to timely respond to the
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Complaints filed by Plaintiff and continue to be harmed by the ongoing requests for extensions
and Plaintiff’s counsel’s continued failure to meet deadlines. These ongoing failures have caused
a delay of this action of almost a year. Thus, the Court finds that Defendants have been
prejudiced by Plaintiff’s counsel’s inaction.
The third and fourth factors require the Court to assess whether there is a history of
dilatoriness and whether Plaintiff’s counsel’s conduct was willful or in bad faith. Poulis, 747
F.2d at 868. In assessing dilatory conduct, the court may consider a party’s conduct over the
course of the entire litigation. Adams v. Trustees of the New Jersey Brewery Employees’
Pension Trust Fund, 29 F.3d 863, 875 (3d Cir. 1994). Here, Plaintiff’s counsel’s continued
failure to oppose Defendants’ motions to dismiss and counsel’s failure to comply with this
Court’s September 14, 2011 Order demonstrates a pattern of dilatory conduct. Defendants have
filed two rounds of Motions to Dismiss in response to the Complaints filed by Plaintiff and
Plaintiff has failed to respond each time, despite numerous extensions of motion dates and filing
deadlines. In addition, Plaintiff’s counsel has failed to comply with this Court’s Order requiring
him to serve upon Plaintiff the correspondence between counsel and the Court in this matter.
Thus, the Court finds that there is a pattern of dilatory conduct and, additionally, that Plaintiff’s
counsel’s continued failure to respond casts doubt on his good faith prosecution of this matter.
The next factor evaluates the effectiveness of sanctions other than dismissal. Poulis, 747
F.2d at 868. In Titus v. Mercedes Benz of North America, 695 F.2d 746, 750 n.6 (3d Cir. 1982),
the Third Circuit explained that other possible sanctions may include “a warning, a formal
reprimand, placing the case at the bottom of the calendar, a fine, the imposition of costs or
attorney fees, the temporary suspension of the culpable counsel from practice before the court,
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and dismissal of the suit unless new counsel is secured.” In the instant matter, the ongoing
delays caused by Plaintiff’s counsel have already delayed the adjudication of this matter by
almost a year. Moreover, despite being given the opportunity to ensure that his client is aware of
the ongoing issues arising in this action, counsel for Plaintiff has failed to advise the Court
whether his client is aware of the nature of his representation and continues to flout deadlines
imposed by this Court as well as Court orders. That said, while the Court finds that a sanction is
appropriate in this case, in light of the Third Circuit’s jurisprudence in Poulis, Scarborough and
Dunbar, I find that dismissal with prejudice would be an extreme sanction. Instead, I find that a
lesser sanction of dismissal without prejudice as well as an Order providing Plaintiff 60 days
within which to retain new counsel, or enter an appearance pro se, to be appropriate.1
IV. CONCLUSION
For the reasons set forth above, the Complaint is DISMISSED WITHOUT PREJUDICE.
Further, Plaintiff has 60 days within which to retain new counsel, or enter an appearance pro se,
and to timely prosecute this matter. In addition, for ease of administration, Defendants’ motions
to dismiss are ADMINISTRATIVELY TERMINATED.
Dated: September 28, 2011
/s/ Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.
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Finally, in considering the sixth Poulis factor, the Court, at this stage of the proceedings
does not have sufficient grounds to evaluate the meritoriousness of Plaintiff's claims. Thus, this
factor is largely neutral and does not change the Court’s conclusion that the balance of the Poulis
factors support dismissal of the action.
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