MATAY v. COMMISSIONER OF SOCIAL SECURITY
MEMORANDUM OPINION filed. Signed by Judge Brian R. Martinotti on 1/18/2017. (mps)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MICHAEL KENNETH MATAY, JR.,
COMMISSIONER OF SOCIAL
Civ. Action No.: 15-1709 (BRM)
Before this Court is the appeal by Plaintiff Michael Matay (“Plaintiff”) of the final decision
of the Commissioner of Social Security (the “Commissioner”) denying Plaintiff disability benefits
under Title II of the Social Security Act. Plaintiff has failed to timely file a brief in support of his
appeal, as required by L.Civ.R. 9.1(e)(1). Consequently, on January 6, 2017, this Court sua sponte
ordered Plaintiff to show cause by January 17, 2017 why his Complaint against the Commissioner
should not be dismissed for failure to prosecute. (ECF No. 20.) To date, Plaintiff has not responded
to the Court’s January 6, 2017 Order to Show Cause. Accordingly, for the reasons set forth below,
this case is DISMISSED WIHTOUT PREJUDICE for failure to prosecute.
On March 6, 2015, Plaintiff filed a Complaint with this Court appealing the final decision
of the Commissioner. (ECF No. 1.) On October 19, 2015, the Commissioner moved to dismiss the
Complaint as time-barred. (ECF No. 8.) On June 6, 2016, the Honorable Freda L. Wolfson,
U.S.D.J., denied the Commissioner’s Motion to Dismiss. (ECF No. 15.) On June 17, 2016, the
Commissioner filed an Answer to Plaintiff’s Complaint (ECF No. 16) and the administrative
record (ECF No. 17). On August 8, 2016, this case was reassigned to the undersigned. (ECF No.
Pursuant to L.Civ.R. 9.1(e)(1), a plaintiff in a social security matter must file a brief within
75 days of receipt of the Answer. L.Civ.R. 9.1(e)(1). It has been over six months since the filing
of the Commissioner’s Answer and Plaintiff has not filed his supporting brief. Accordingly, on
January 6, 2017, the Court ordered Plaintiff to show cause by January 17, 2017 why this matter
should not be dismissed for failure to prosecute. To date, Plaintiff has not responded to the January
6, 2017 Order to Show Cause.
Rule 41(b) of the Federal Rules of Civil Procedure provides in relevant part, “[i]f the
plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). This Rule has been interpreted to
permit a district court to dismiss an action sua sponte. See Link v. Wabash R.R., 370 U.S. 626, 63031 (1962); Kenney v. California Tanker Co., 381 F. 2d 775, 777 (3d Cir. 1967), cert. denied, 390
U.S. 904 (1968). Typically, when a court dismisses a case for failure to prosecute pursuant to Fed.
R. Civ. P. 41(b), the court employs the six-factor balancing test set forth in Poulis v. State Farm
Cas. Co., 747 F.2d 863 (3d Cir. 1984). Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008). These
factors include: (1) The extent of the party’s personal responsibility; (2) the prejudice to the
adversary caused by the plaintiff’s conduct; (3) the 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. Poulis, 747 F.2d at 868. No single Poulis factor is determinative and dismissal may be
appropriate even if some of the factors are not met. See Mindek v. Rigatti, 964 F.2d 1369, 1373
(3d Cir.1992); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988).
Here, the bulk of the Poulis factors weigh in favor of dismissing this case without prejudice.
In the absence of any evidence to the contrary, the Court finds Plaintiff’s conduct in delaying this
case to be willful and attributable to him personally. Plaintiff has had over six months to explain
to the Court the reasons for his failure to file his supporting brief and to request an extension of
his deadline, but he has not done so. Moreover, after the Court specifically ordered Plaintiff to
show cause why this case should not be dismissed for failure to prosecute, Plaintiff did not respond
or otherwise indicate to the Court that he intends to pursue this action. Both Plaintiff’s failure to
file his supporting brief and his failure to comply with the Court’s January 6, 2017 Order
demonstrate he has abandoned this case.
Because there have only been two incidents of dilatory conduct in this case thus far, for the
purposes of the Poulis balancing test, there is no history of dilatoriness in this case. See Briscoe,
538 F.3d at 261 (“conduct that occurs one or two times is insufficient to demonstrate a ‘history of
dilatoriness’”). Nonetheless, the Court finds Plaintiff’s extreme dilatoriness in filing his supporting
brief has caused prejudice to the Commissioner, who, pursuant to L.Civ.R. 9.1(e)(2), can file her
responsive brief only after receipt of Plaintiff’s supporting brief, and thus has been unable to
oppose Plaintiff’s appeal.
In considering the effectiveness of an alternative sanction, the Court finds that, based on
Plaintiff’s unresponsiveness to the January 6, 2017 Order and his apparent abandonment of the
case, alternative sanctions would be futile. Finally, in considering the sixth Poulis factor, the Court
does not have sufficient grounds at this stage of the proceedings to evaluate the meritoriousness of
Plaintiff’s claims, because Plaintiff has not filed his supporting brief explaining the basis for his
For these reasons, the Court finds that, on balance, the Poulis factors weigh in favor of
DISMISSING this case WITHOUT PREJUDICE. An appropriate Order will follow.
Date: January 18, 2017
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
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