Opinion
Civil action NO. 01-1583.
October 31, 2001
REPORT AND RECOMMENDATION
INTRODUCTION
On October 11, 2001, I issued an Order directing plaintiff John T. Whiting to show cause why sanctions should not be imposed him pursuant to Rule 16(f) of the Federal Rules of Civil Procedure. There was no response from plaintiff. There was no oral argument. Rule 78.
DISCUSSION
This civil action was removed from the Superior Court of New Jersey, Law Division, Middlesex County, on April 2, 2001. On April 23, 2001, I issued a Scheduling Order. Among other things, I directed that discovery be completed not later than August 23, 2001, and that plaintiff make his pretrial submissions not later than September 6, 2001. Plaintiff did not do so.
In Poulis v. State Farm Fire Casualty Co., 747 F.2d 963 (3d Cir. 1984), the Third Circuit Court of Appeals set forth six factors which must be considered to determine whether the extreme sanction of dismissal is appropriate under Rule 37. 747 F.2d at 868; see Scarborough v. Eubanks, 747 F.2d 871, 874 (3d Cir. 1984).
Turning to the Poulis factors, I find as follows:
1. Plaintiff is proceeding pro se. Accordingly, he is personally responsible for having failed to make his pretrial submissions.
2. There is no history of non-compliance here.
3. Plaintiff has given no explanation for his failure to make his pretrial submissions or for his failure to respond to this Order to Show Cause. Based on his failure to do so, I am satisfied that plaintiff has made a willful decision not to make his pretrial submissions or to respond.
4. I cannot say from my review of the Complaint that it is without merit.
5. Plaintiffs failure to make his pretrial submissions makes it impossible to enter a Final Pretrial Order or to set this matter down for trial. Moreover, it should be noted that the passage of time before trial cannot help but contribute to the inevitable dimming of the memory of any witness. See Scarborough v. Eubanks, supra., 747 F.2d at 876. I am satisfied that defendant have been prejudiced by plaintiffs failure to comply.
6. Alternative sanctions would not be appropriate. Plaintiff has failed to comply with an order. This persuades me that anything in the nature of a further order or admonition would be meaningless. I am satisfied that nothing less than the most extreme sanction would be appropriate.
CONCLUSION
Four of the six Poulis factors weigh in favor of Dismissal. "Poulis did not provide a magic formula whereby the decision to dismiss or not to dismiss a plaintiffs complaint becomes a mechanical calculation ***. Not all of the Poulis factors need be satisfied in order to dismiss a complaint." Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). Plaintiff has failed to make his pretrial submissions. Plaintiff has failed to respond to the pending Order to Show Cause. The Final Pretrial Order cannot be entered. A trial date cannot be set. An extreme sanction is warranted.
For the reasons set forth above, I recommend that the Complaint be dismissed with prejudice and without costs.
Pursuant to Local Civil Rule 72.1(c)(2), the parties have ten (10) days from service of this Report and Recommendation to file and serve objections.