Opinion
Civil No. 01-2461 (JBS).
Filed: January 7, 2003
Jason I. Farrow, Newark, New Jersey, Plaintiff pro se.
A. Michael Barker, Esquire, BARKER, DOUGLASS SCOTT, P.C., Linwood, New Jersey, Attorney for Defendants Township of Middle Township, James Alexis, Sharon Coco, and Charles M. Leusner.
OPINION
This matter is before the Court on the motion of defendants, Township of Middle Township, James Alexis, Sharon Coco, and Charles M. Leusner, to dismiss the complaint of plaintiffs Jason Farrow and Dollar Cab Company for failure to comply with court orders and discovery requests. This Court finds that the consistent failure of Jason Farrow and Dollar Cab Company to prosecute their case, provide necessary discovery, and comply with court orders warrants a dismissal of their claims with prejudice as to defendants Township of Middle Township, James Alexis, Sharon Coco, and Charles M. Leusner.
I. BACKGROUND
On June 11, 2001, plaintiffs, Jason I. Farrow, Charles A. Farrow, Sr., and Dollar Cab Company, filed a complaint in this Court, alleging that defendants, Township of Middle Township, Bruce M. Gorman, Esquire, James Alexis, Sharon Coco, Charles M. Leusner, Officer Osmanson, John Does 1-10, and John Does 11-20, violated 42 U.S.C. § 1983 by discriminating against them on the basis of race by refusing to provide them with a license to operate a taxi cab business. (Complaint at 3-6.) Plaintiffs were represented by Jeffrey Puff, Esquire.
On August 11, 2001, counsel for four of the defendants, Township of Middle Township, James Alexis, Sharon Coco, and Charles M. Leusner, ("Middle Township defendants"), sent plaintiffs interrogatories and a notice to produce. (Defs.' Br., Ex. B.) The Middle Township defendants contacted plaintiffs' counsel on September 13, 2001 and on October 4, 2001 asking for the responses. (Id., Ex. C.)
On November 29, 2001, plaintiff Charles A. Farrow, Sr. filed a stipulation of dismissal with the Court, agreeing to dismiss the complaint against each named defendant. [Docket Item 11-1.] Meanwhile, Mr. Puff requested that he be granted permission to withdraw as counsel for the two remaining plaintiffs, Jason Farrow and Dollar Cab Company, because he believed that Jason Farrow had concealed facts which affected the case. (Id., Ex. F.) On December 21, 2001, the Court granted Mr. Puff's request and allowed plaintiff Jason Farrow to proceed pro se. However, because a corporation must be represented by counsel when appearing in court pursuant to Simbraw v. United States, 367 F.2d 373 (3d Cir. 1966), the Court ordered plaintiff Dollar Cab Company to "provide proof that it has retained new counsel no later than February 22, 2002, or face potential dismissal of the corporation as a defendant." (Id., Ex. D at 3-4, Ex. H.) To date, no attorney has made an appearance on behalf of the corporate plaintiff and no papers have been filed on its behalf.
On December 28, 2001, the Court ordered the Cape May County Sheriff to produce Jason Farrow from the Cape May County Correctional Center for a January 22, 2002 deposition. (Id., Ex. G.) Counsel for defendants took the deposition on January 22nd during which Jason Farrow testified that he had a videotape and a diary that directly related to the allegations in his complaint. (Id., Ex. I, J.) Plaintiff agreed to supply the information to the Middle Township defendants; when asked for the diaries, the video and "everything you have on your case," he responded, "[y]ou can have that this week." (Id., Ex. K at 72:14-21.)
Plaintiff did not provide the information. Instead, on February 7, 2002, he sent defendants' counsel a postcard in which he stated that "I have been doing some thinking about my case. I will not turn over [no] paper work or diary to you to help make your case stronger. Remember you are not for me you are for Middle Twp. . . . I will see you in court." (Id., Ex. L.)
On August 12, 2002, the Middle Township defendants sent Jason Farrow a copy of a motion to dismiss the complaint for failure to prosecute pursuant to Fed.R.Civ.P. 41(b), for failure to comply with discovery orders pursuant to Fed.R.Civ.P. 37(b)(2), and for failure to provide requested discovery pursuant to Fed.R.Civ.P. 37(d). (Id., Ex. N.) Frank Pedalino, Executive Assistant and the Northern State Prison in Newark, New Jersey signed an affidavit indicating that the motion and its accompanying papers were received by the mailroom on August 13th and that Jason Farrow received the package on August 16th. (Id.) Mr. Farrow did not file a response to the motion.
On October 4, 2002, the Honorable Joel Rosen denied defendants motion to dismiss, ordered plaintiff Jason Farrow to provide answers to interrogatories, to respond to the notice to produce, to provide copies of the videotape and diary by November 3, 2002 and ordered plaintiff Dollar Cab Company to provide proof of counsel. (10/4/02 Order at 3-4.) Judge Rosen further ordered that "if the plaintiffs fail to provide all the requests sought by the defendants in this application on or before November 3, 2002, then the defendants may re-apply to this court for dismissal of the complaint with prejudice." (Id. at 4.)
Before the October 4th Order was entered on the docket, the undersigned also considered the motion to dismiss and drafted an order dated October 8, 2002. (Defs.' Br., Ex. P.) When the Order was stamped for filing, the Clerk of Court recognized that an error had been made and notified the undersigned that the order had previously been decided by Judge Rosen. The October 8, 2002 Order was destroyed and was never docketed; the October 4, 2002 Order remains binding. Since then, defendants counsel have obtained a copy of the October 8, 2002 Opinion and Order and attached it as Exhibit P to their brief. This Court recognizes that its October 8, 2002 Order is a nullity and will not consider it in making its determination on the current motion. The only order entered on the docket was Judge Rosen's October 4, 2002 Order.
Plaintiffs did not provide the responses ordered by November 3, 2002. Therefore, defendants filed the present motion to dismiss for failure to comply with discovery requests and court orders on December 3, 2002. Plaintiffs have not filed a response to this motion.
II. DISCUSSION
Defendants argue that this Court should dismiss the claims of plaintiffs Dollar Cab Company and Jason Farrow with prejudice because they have not complied with discovery requests or with the court orders dated January 4, 2002 and October 4, 2002. This Court agrees and will dismiss the complaint in its entirety.
A. Plaintiff Dollar Cab Company
The claims brought by plaintiff Dollar Cab Company will be dismissed as to the Middle Township defendants for failure to prosecute and failure to comply with court orders pursuant to Fed.R.Civ.P. 41(b) and L. Civ. R. 41.1.(a).
Fed.R.Civ.P. 41(b) provides, in part:
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant . . .
L. Civ. R. 41.1(a) provides, in pertinent part:
Civil cases, other than bankruptcy matters, which have been pending in the Court for more than 120 days without any proceeding having been taken therein must be dismissed for lack of prosecution . . .
Plaintiff Dollar Cab Company has not complied with two orders of this Court and has not corresponded in any way with this Court. The first order, entered December 21, 2001, specifically ordered that Dollar Cab Company provide "proof that it has retained new counsel no later than February 22, 2002, or face potential dismissal of the corporation. " (Defs.' Br., Ex. D at 4.) (emphasis in original.) The second order, entered October 4, 2002 also ordered Dollar Cab Company to provide proof of retained counsel on or before November 3, 2002 or face dismissal of the complaint with prejudice. (Id., Ex. O at 4.)
Dollar Cab Company has not provided proof of counsel and has not communicated in any way with this Court since either order was entered. As a result, while this Court recognizes that a dismissal with prejudice is a "drastic sanction," this Court also finds that it is warranted here where Dollar Cab Company's silence has lasted over one year in spite of specific court orders. The Court can only conclude that Dollar Cab Company has abandoned its claims. Therefore, this Court will dismiss Dollar Cab Company's complaint as to the Middle Township defendants for failure to prosecute.
B. Plaintiff Jason Farrow
The claims brought by plaintiff Jason Farrow against the Middle Township defendants will be dismissed for failure to comply with discovery requests and court orders pursuant to Fed.R.Civ.P. 37(b).
Fed.R.Civ.P. 37(b)(2)(C) provides, in part:
If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . . an order . . . dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party . . .
Dismissal of a claim with prejudice under Fed.R.Civ.P. 37(b) is "extreme" and is to be reserved for "extreme cases." Poulis v. State Farm Fire Cas. Co., 747 F.2d 863, 867-68 (3d Cir. 1984) (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)). Before granting such a motion, the Court must consider six factors set forth inPoulis: (1) the extent of the party's personal responsibility for the actions at issue; (2) the prejudice to the adversary caused by the party's actions; (3) whether there is a history of dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) the availability and effectiveness of alternative sanctions; (6) the meritoriousness of the underlying claim. Poulis, 747 F.2d at 867-68. All six factors do not need to be present for a dismissal to be appropriate. Hoxworth v. Blinder, Robinson Co., 980 F.2d 912, 919 (3d Cir. 1992).
Here, the Poulis factors lead this Court to the conclusion that Jason Farrow's complaint must be dismissed as to the Middle Township defendants. First, Farrow has personally refused to comply with discovery requests and court orders in spite of the Court's clear directions to comply. Second, the Middle Township defendants have been prejudiced as they have been required to filed multiple motions before this Court in an effort to obtain the evidence that they need from Farrow to competently defend their case. Third, Farrow's dilatoriness is clear. He needed to provide all relevant evidence by the February 28, 2002 discovery deadline, (10/11/02 and 11/30/02 Scheduling Orders), but has yet to do so, even when the deadline was extended by Judge Rosen's October 4, 2002 Court Order which ordered him to produce all evidence by November 3, 2002. Fourth, while it is unclear whether plaintiff has refused to comply with the orders in bad faith, it is clear that he has consistently refused to offer anything to substantiate his allegations as he specifically stated that he would not "turn over [no] paper work or diary to you to make your case stronger." (Defs.' Br., Ex. L.) Fifth, this Court finds that alternative sanctions would not be effective here because this Court has attempted the alternate sanction of compelling disclosure and Jason Farrow has still not provided the disclosure. Sixth, plaintiff has withheld the necessary documents to determine the meritoriousness of his underlying claim of racial discrimination.
Therefore, because Jason Farrow has consistently refused to cooperate with his adversaries and with this Court, has intentionally withheld the documents which are pertinent to his claims, and has received ample warning from this Court that he needed to comply or face a dismissal of his claims with prejudice, this Court will dismiss with prejudice plaintiff Jason Farrow's claims against the Middle Township defendants.
III. CONCLUSION
For the foregoing reasons, this Court will dismiss the claims in the Complaint of plaintiffs Dollar Cab Company and Jason Farrow with prejudice for failure to comply with discovery requests and court orders.
The accompanying order is entered.
ORDER
This matter having come before the Court upon the motion of defendants Township of Middle Township, James Alexis, Sharon Coco, and Charles M. Leusner, to dismiss the claims of plaintiffs Jason Farrow and Dollar Cab Company, [Docket Item 36-1]; and the Court having considered the submissions of the defendants; and for the reasons expressed in the Opinion of today's date;IT IS this 7th day of January, 2003 hereby
ORDERED that the motion to dismiss the claims of plaintiffs Jason Farrow and Dollar Cab Company by defendants, Township of Middle Township, James Alexis, Sharon Coco, and Charles M. Leusner, [Docket Item 36-1] be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that the claims of plaintiffs Jason I. Farrow and Dollar Cab Company be, and hereby are, DISMISSED WITH PREJUDICE as to defendants Township of Middle Township, James Alexis, Sharon Coco, and Charles M. Leusner.