KELLY v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA
MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 2/11/2015. (mmh)
FEB 17· 2015
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILLIAM T. WALSH
Civil Action No. 14-135 (MAS) (DEA)
AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA,
SHIPP, District Judge
This matter comes before the Court following the Report and Recommendation of the
Honorable Douglas E. Arpert, U.S.M.J., recommending the dismissal of Plaintiffs Complaint with
prejudice for failure to comply with certain orders of the Court and for failure to expeditiously
prosecute the matter. (ECF No. 13.) Plaintiff filed correspondence, objecting to Judge Arpert's
recommendation, stating that the factors set forth in Poulis v. State Farm Fire and Casualty Co.,
747 F.2d 863 (3d Cir. 1984), militate against dismissal. (ECF No. 16.) The facts relevant to the
Court's decision, which are not contested by Plaintiff, are set forth in Judge Arpert's
recommendation and will not be repeated here unless necessary. For the reasons set forth below,
the Court adopts Judge Arpert's recommendation, and the case is dismissed with prejudice.
Plaintiff, after numerous opportunities and the passage of significant time, has failed to
comply with the most basic of discovery obligations and other Court orders. Plaintiffs Complaint
was fileq on January 8, 2014. (ECF No. 1.) On April 7, 2014, the Court entered the Hurricane
Sandy Case Management Order No. 1, which set forth deadlines for initial disclosures and fact
discovery (ECF No. 6), and on August 18, 2014, the Court entered a second scheduling order,
directing Plaintiff to serve any outstanding discovery by August 21, 2014 (ECF No. 8). On
November 20, 2014, Defendant notified the Court that Plaintiff had still not provided initial
disclosures or responses to Defendant's discovery requests and failed to attend a scheduled Rule
37(a)(1) discovery conference. 1 (See ECF No. 12.) In response, the Court ordered that "no later
than December 5, 2014, Plaintiff shall set forth, in writing, reasons why the Complaint should not
be dismissed for failure to provide discovery." (ld) Plaintiff did not respond. As attachments to
her objection to Judge Arpert's recommendation, Plaintiff has provided responses to Defendant's
discovery requests. 2 (ECF No. 16-1 to -3.)
The Court, having conducted a de novo review3 of Judge Arpert's analysis of the Poulis
factors, determines that the case should indeed be dismissed with prejudice. In determining the
appropriateness of dismissal as a sanction, courts look to the following factors:
(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 badfaith; (5) the effectiveness of sanctions other than dismissal, which
entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim
Rule 37(a)(l) of the Federal Rules of Civil Procedure provides that, prior to making a motion to
compel discovery, a movant must certify that it has "in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discovery in an effort to obtain it without
court action." Fed. R. Civ. P. 37(a)(l).
Plaintiff, however, has not attached her initial disclosures; accordingly, the Court cannot discern
whether those disclosures have ever been provided to Defendant.
Following a party's objection to a magistrate judge's report and recommendation, "[t]he district
judge must determine de novo any part of the magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P.
Poulis, 747 F.2d at 868 (emphasis in original). The Court has considered these factors, as well as
Plaintiffs objections to Judge Arpert's recommendation, and finds that dismissal is appropriate.
Defendant has undoubtedly been prejudiced by Plaintiffs failure to provide discovery responses;
Plaintiffs suit was filed in January 2014, and Defendant has since been unable to effectively
defend the suit as Plaintiff did not respond to the most basic of discovery obligations until January
2015. Moreover, Plaintiffs exhibited history of dilatoriness reveals a willful disregard of her
obligations under the Court's rules and orders. Considering the total failure of Plaintiff to respond
to the Court's Order and Plaintiffs offered objection, the Court doubts that any alternative sanction
would be effective.
Plaintiff primarily objects to Judge Arpert's recommendation of dismissal by claiming that
any "dilatoriness ·was due to ... counsel's excessive case load, staffing and scheduling conflicts,
and other time constraints that plague the discovery process in this case." (ECF No. 16.) The
Court, while cognizant that primary responsibility for the indifference to the Court's orders should
be placed on Plaintiffs counsel, is not moved. "[A] client cannot always avoid the consequences
of the act or omissions of its counsel."
747 F.2d at 868 (citing Link v. Wabash R.R., 370
U.S 626, 633 (1962)). Plaintiff disclaims in her objection "that in August 2014, she provided
documents and initial disclosures in connection with the claim." Whatever the validity of this
contention, it does not excuse the failure to respond to the Court's Order, directing Plaintiff to
show cause for the failure to provide fact discovery approximately four months after the initial
deadline. "[E]ach party is deemed bound by the acts of his lawyer-agent and is considered to have
notice of all facts, notice of which can be charged upon the attorney." Link, 370 U.S. at 633.
Accordingly, for the above reasons, the Court adopts the report and recommendation of
Judge Arpert. Plaintiffs Complaint is dismissed with prejudice. An order consistent with this
opinion will be entered.
UNITED STATES DISTRICT JUDGE
I ( , 20 15
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