HERNANDEZ et al v. KAPLAN et al

Filing 26

LETTER OPINION filed. Signed by Judge Joel A. Pisano on 1/13/2014. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF

Clarkson S. Fisher Building & U.S. Courthouse
402 East State Street
Trenton, NJ 08608
[phone]

JOEL A. PISANO
JUDGE

January 13, 2014
LETTER OPINION
Re: Hernandez, et al. v. Kaplan, et al.
Civil Action No. 13-cv-1556 (JAP)
Dear parties:
Presently before the Court is: (1) Defendant, the New Brunswick Police Department’s
motion to dismiss the Complaint filed on behalf of Plaintiffs Oswaldo Hernandez and Jorge
Lopez-Nieves [docket #22]; (2) Defendants’, Patrolman Kevin Conway, Patrolman Brandt
Gregus, Detective Kenneth Abode, Detective Martinez and Patrolman Rodriguez, cross-motion
to dismiss the Complaint filed on behalf of Plaintiffs Oswaldo Hernandez and Jorge LopezNieves [docket #23]; and (3) Defendant, Lieutenant Bobadilla’s cross-motion to dismiss the
Complaint filed on behalf of Plaintiffs Oswaldo Hernandez and Jorge Lopez-Nieves [docket
#24]. Plaintiffs Hernandez and Lopez-Nieves have not opposed these motions.
For the reasons stated below, Defendants’ motions to dismiss the claims filed on behalf
of Plaintiffs Oswaldo Hernandez and Jorge Lopez-Nieves [docket #22, #23, and #24] are hereby
GRANTED.
A. Brief Factual Background
On May 14, 2013, all counsel appeared before the Honorable Douglas E. Arpert,
U.S.M.J. for an initial scheduling conference, which resulted in a Pretrial Scheduling Order
being filed on May 16, 2013 [docket #15]. The Pretrial Scheduling Order set forth the dates by
which the parties were to comply in demanding and producing discovery as well as Rule 26
disclosures.
On July 15, 2013, the parties participated in a telephone conference with Judge Arpert.
After being advised that Plaintiffs had not provided Rule 26 disclosures or responses to
discovery demands in accordance with the Court’s Pretrial Scheduling Order, Judge Arpert gave
Plaintiffs an extension. Subsequently, Plaintiffs served Rule 26 disclosures; however, responses
to written discovery by Plaintiffs Hernandez and Lopez-Nieves were never served. Thus, the
parties participated in a second telephone conference on September 4, 2013, where Plaintiffs’
counsel advised Judge Arpert that he has been unable to locate Plaintiff Hernandez and has lost
all contact with Plaintiff Lopez-Nieves. Accordingly, Defendants were given permission to file
the instant motions.

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B. Standard
Federal Rule of Civil Procedure 16(f)(1)(c) provides that “[o]n motion or on its own, the
court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a
party . . . fails to obey a scheduling or other pretrial order.”
Rule 37(b)(2)(A)(ii)-(vii) provides that “[i]f a party . . . fails to obey an order to provide
or permit discovery . . . the court where the action is pending may issue further just orders. They
may include the following[] . . . (ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing designated matters in evidence; (iii)
striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment
against the disobedient party; or (vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.”
Moreover, in determining whether dismissal is an appropriate sanction, the Third Circuit
has identified six (6) factors that a Court should consider:
(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.
Knoll v. City of Allentown, 707 F.3d 406, 409 (3d Cir. 2013)(citing Poulis v. State Farm Fire and
Casualty Co., 747 F.2d 863, 867-88 (3d. Cir. 1984)).
C.

Analysis

It is clear to the Court that Plaintiffs Hernandez and Lopez-Nieves have failed to obey the
Pretrial Scheduling Order in violation of Rule 16(f)(1)(c). Thus, the only analysis which this
Court must engage in is to determine whether the sanction sought by Defendants – namely,
dismissal of Plaintiffs’ Hernandez and Lopez-Nieves claims – is warranted.
Given the facts of this case, it appears to the Court that dismissal of these Plaintiffs’
claims may be the only relevant sanction available that will not result in an undue delay of the
matter. Staying the proceedings or holding Plaintiffs in contempt as provided for by Rule
37(b)(2)(A)(iv) and (vii) will result in prejudice to the remaining Plaintiff and Defendants who
have complied with the Court’s Pretrial Scheduling Order and have an interest in moving the
case towards resolution. The Court is not convinced that Plaintiffs Hernandez and Lopez-Nieves
will ever comply with the Order, regardless of a stay or being held in contempt, as they do not
even respond to their own attorney and their whereabouts are unknown at this point.

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Similarly, Rule 37(b)(2)(A)(ii), which permits the Court to prohibit Plaintiffs Hernandez
and Lopez-Nieves from supporting their claims or introducing designated matters into evidence,
does little to cure the present issue. It is axiomatic that Plaintiffs are not attempting to support
their claims to begin with; therefore, prohibiting Plaintiffs’ from doing so will not change the
fact that Defendants are endeavoring to defend a case without having received any discovery.
Further, the Court is unable to strike Plaintiffs complaint in accordance with Rule
37(b)(2)(A)(iii) because there is a third Plaintiff named in the complaint, Jose Joya-Granados,
who has complied with the Court’s Pretrial Scheduling Order and is not the subject of
Defendants motions. Last, rendering a default judgment as permitted by Rule 37(b)(2)(A)(vii) is
also inappropriate because Defendants have not asserted any counterclaims against Plaintiffs
Hernandez and Lopez-Nieves.
Consequently, while dismissal of an action is a severe sanction, and should only be
ordered as a last resort, see Nat’l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S.
639, 643, reh’g denied sub nom., 427 U.S. 874 (1976), it appears to be the only sanction
available that will adequately address Plaintiffs’ failure to comply with the Court’s Pretrial
Scheduling Order.
Additionally, in reviewing the factors set forth by the Third Circuit in Knoll, the Court is
convinced that dismissal is warranted. First, Plaintiffs Hernandez and Lopez-Nieves are wholly
responsible for the failure to comply with the Court’s Order as they have not responded to their
attorneys attempt(s) to communicate and prepare discovery responses, and such failure appears
to be willful. Second, Defendants are being prejudiced by Plaintiffs’ violation of the Court’s
Order because discovery responses were due six (6) months ago and Defendants’ still have yet to
receive any. Third, there is a history of dilatoriness. The parties participated in two telephone
conferences with Judge Arpert and, despite being given an extension, still failed to respond to
Defendants’ discovery demands. Last, as discussed above, the Rule 37(b)(2)(A) sanctions other
than dismissal would be ineffective in this case.
Accordingly, the Court finds that Plaintiffs Hernandez and Lopez-Nieves have failed to
obey a Court Order in violation of Rule 16(f)(1)(c), thereby warranting dismissal of these
Plaintiffs’ claims in accordance with Rule 37(b)(2)(A)(v). As such, Defendants’ motions to
dismiss [docket #22, #23, and #24] must be GRANTED.

/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge

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