Opinion
Civil No. 08-1210 (RMB/AMD)
05-20-2011
PAUL C. WILLIAMS, Plaintiff, v. THOMAS P. SULLIVAN, et al., Defendants.
[Doc. Nos. 56, 63] REPORT AND RECOMMENDATION
This matter comes before the Court by way of motion [Doc. No. 56] of Plaintiff Pro Se, Paul C. Williams, seeking an extension of time to serve answers and objections to Defendants' interrogatories and requests for production of documents and an extension of time to complete pretrial factual discovery. Also before the Court is the cross-motion of Paula T. Dow, Attorney General of New Jersey, by Jennifer S. Hsia, Deputy Attorney General, on behalf of Defendants Anthony Lamanna, Eugene Maggioncalda, Jimmie Gonzales, Robert Flem, James Dowd, and Eric Bland seeking an Order dismissing Plaintiff's complaint for refusal to cooperate with discovery and failure to comply with the Court's Orders, and opposing Plaintiff's request to extend the deadline for pretrial factual discovery. (Letter Br. in Supp. of Defs.' Cross-Mot. to Dismiss Pl.'s Compl. for Refusal to Cooperate with Disc. & Opp'n to Pl.'s Mot. to Extend Disc. [Doc. No. 63-1] (hereinafter, "Defs.' Cross-Mot. to Dismiss"), 2.) Plaintiff did not file opposition to Defendants' cross-motion to dismiss. The Court has considered the parties' submissions, and submits this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) because of the dispositive nature of the proposed order. For the reasons set forth below, the Court respectfully recommends denial of Plaintiff's motion to extend time and dismissal of the complaint pursuant to Federal Rules Civil Procedure 16(f) and 37(b)(2)(A).
In this motion, Plaintiff originally sought a preliminary injunction and two additional extensions of time relating to filing a motion for reconsideration and extending the deadline for pretrial factual discovery. (Pl.'s Mot. to Extend the Deadline to Complete Pretrial Factual Disc. [Doc. No. 56] 1.) By Memorandum Order dated January 6, 2011, the District Court denied Plaintiff's requests for a preliminary injunction and for an extension of time to file a motion for reconsideration. (Mem. Order [Doc. No. 57] 4, Jan. 6, 2011.) The District Court thereby referred Plaintiff's requests for extensions of time to complete pretrial factual discovery and to serve and file answers and objections to Defendants' discovery request to this Court for disposition. (Id. at 1, 4.)
As noted in the Court's prior Order, "[t]he background of this case is set forth in the District Court's Opinion dated June 30, 2008, and only those facts relevant to the present motion are recounted herein." (Order [Doc. No. 53] 1-2, Dec. 3, 2010) (citing Op. [Doc. No. 5] 2-4, June 30, 2008.) The Court originally set the deadline for the completion of pretrial factual discovery in this case for August 31, 2009. (Scheduling Order [Doc. No. 23] ¶ 1, June 24, 2009.) Since that time, the Court has extended the deadline on six separate occasions. (See Am. Scheduling Order [Doc. No. 25] ¶ 1, Oct. 7, 2009; Am. Scheduling Order [Doc. No. 27] ¶ 1, Jan. 27, 2010; Am. Scheduling Order [Doc. No. 31] ¶ 1, Apr. 12, 2010; Am. Scheduling Order [Doc. No. 35] ¶ 1, July 20, 2010; Am. Scheduling Order & Order on Informal Appl. [Doc. No. 41] ¶ 2, Aug. 17, 2010; Am. Scheduling Order & Order on Informal Appl. [Doc. No. 47] ¶ 1, Sept. 20, 2010.) The first two extensions of the discovery deadline were made at the request of Defendants, and Plaintiff did not oppose these requests. (See Am. Scheduling Order [Doc. No. 25] 1, Oct. 7, 2009; Am. Scheduling Order [Doc. No. 27] 1, Jan. 27, 2010.) The third extension was in response to a motion brought by Defendants as a result of Plaintiff's failure to cooperate in discovery. (Order [Doc. No. 30] 5-7, Apr. 12, 2010; Am. Scheduling Order [Doc. No. 31] ¶ 1, Apr. 12, 2010.) The fourth, fifth, and sixth extensions were granted in response to a motion and two informal requests made by Plaintiff. (See Am. Scheduling Order [Doc. No. 35] 1, July 20, 2010; Am. Scheduling Order & Order on Informal Appl. [Doc. No. 41] 1, Aug. 17, 2010; Am. Scheduling Order & Order on Informal Appl. [Doc. No. 47] 1, Sept. 20, 2010.) The Court's most recent Amended Scheduling Order and Order on Informal Application, extended the deadline for the completion of pretrial factual discovery to October 15, 2010. (Am. Scheduling Order & Order on Informal Appl. [Doc. No. 47] ¶ 1, Sept. 20, 2010.)
As Defendants set forth in the cross-motion to dismiss the complaint for refusal to cooperate with discovery, Defendants represent that "Interrogatories and Request for Production of Documents were propounded on Plaintiff" on May 13, 2009. (Defs.' Cross-Mot. to Dismiss 2; see also Decl. of Jennifer S. Hsia [Doc. No. 51-2] ¶ 5.) Defendants assert that after they failed to receive a response from Plaintiff, their prior counsel sent Plaintiff "a good faith letter" on October 13, 2009 "reminding [Plaintiff] that his discovery responses were overdue and that he respond to the ... requests no later than October 30, 2009." (Defs.' Cross-Mot. to Dismiss 2-3; see also Decl. of Jennifer S. Hsia [Doc. No. 51-2] ¶ 7, Ex. C.) Defendants note that they sent a letter to the Court and Plaintiff on January 21, 2010 advising the Court that Plaintiff "was not compliant with Defendants' discovery demands." (Defs.' Cross-Mot. to Dismiss 3; see also Decl. of Jennifer S. Hsia [Doc. No. 51-2] ¶ 8, Ex. D.) Plaintiff's failure to respond to Defendants' discovery led to Defendants' February 25, 2010 motion to dismiss Plaintiff's complaint for failure to provide discovery or, alternatively, to compel Plaintiff to produce answers to interrogatories and responses to Defendants' requests for production of documents. (See Defs.' Mot. to Compel Cooperation with Disc., & Alternatively, to Dismiss the Compl. for Pl.'s Failure to Provide Disc. [Doc. No. 28].) By Order dated April 12, 2010, the Court dismissed without prejudice Defendants' request to dismiss Plaintiff's complaint, but granted Defendants' motion to compel and directed Plaintiff to serve answers and any objections to Defendants' interrogatories and requests for production of documents within thirty days. (Order [Doc. No. 30] 6-7, Apr. 12, 2010.) The Court Order states that failure to comply with the Court's Order could result in the imposition of sanctions, including dismissal of Plaintiff's complaint. (Id. at 7.)
Subsequent to the April 12, 2010 Order which resulted in the third extension of the discovery deadline, the Court granted a formal motion [Doc. No. 33] and two subsequent letter requests [Doc. Nos. 36 & 44] by Plaintiff seeking three additional extensions of time to respond to discovery. (See Order [Doc. No. 34] 4, July 20, 2010; Am. Scheduling Order & Order on Informal Appl. [Doc. No. 41] 1, Aug. 17, 2010; Am. Scheduling Order & Order on Informal Appl. [Doc. No. 47] 1, Sept. 20, 2010.) The Court again set forth in the Orders that failure to comply could result in sanctions. (See Order [Doc. No. 34] 4, July 20, 2010; Am. Scheduling Order & Order on Informal Appl. [Doc. No. 41] 2, Aug. 17, 2010; Am. Scheduling Order & Order on Informal Appl. [Doc. No. 47] 2, Sept. 20, 2010.) Specifically, the July 20, 2010 Order again noted that a failure to comply with the Court's order to serve answers and objections to Defendants' interrogatories and request for production of documents within thirty days could result in the imposition of sanctions, including dismissal of the complaint. (Order [Doc. No. 34] 4, July 20, 2010.) After receiving no response to their discovery requests, Defendants filed a second motion to dismiss Plaintiff's complaint on November 10, 2010 again alleging that Plaintiff was not cooperating in discovery because of his continued failure to respond to the interrogatories and document requests served on him on May 13, 2009, even after the Court granted Defendants' motion to compel such responses. (Letter Br. in Supp. of Mot. to Dismiss Pl.'s Compl. for Refusal to Cooperate with Disc. [Doc. No. 51-1] 2-5.) By Order dated December 3, 2010, the Court found that dismissal of Plaintiff's complaint for failure to comply with discovery was not warranted at that time "in light of the dispute as to whether discovery responses ha[d] been served[.]" (Order [Doc. No. 53] 5, Dec. 3, 2010.) However, the Court further directed Plaintiff "to serve (or re-[]serve) answers and any objections to the interrogatories and documents requests on Defendants' counsel with a copy of the same to the Court within twenty days of the entry of th[e] Order." (Id. at 5-6.) The December 3, 2010 Order again set forth that failure to comply with the Order could result in the imposition of sanctions, including the dismissal of Plaintiff's complaint. (Id. at 6.) Despite the Order to provide discovery responses to Defendants with a copy to the Court within twenty days, Plaintiff filed the instant motion seeking another extension on January 6, 2011, over one month after the December 3, 2010 Order was entered and approximately two weeks after his discovery responses were due under that Order.
In the instant motion, Plaintiff seeks a seventh extension of time to complete pretrial factual discovery beyond the October 15, 2010 deadline. (Pl.'s Mot. to Extend the Deadline to Complete Pretrial Factual Disc. 1.) Plaintiff asserts that he was unable to comply with the Court's October 15, 2010 deadline to complete discovery because "he has not been able to have and maintain adequate, effective, and meaningful access to all of the various means that are needed to [conduct discovery]; including, but not limited to, legal supplies, photocopy machine/service, and all of the documents that Defendants and their colleagues have repeatedly and unnecessarily confiscated/withheld from his possession/control." (Id. at 4.) Plaintiff's current motion also seeks an "extension of time ... relating to the Court's December 3, 2010 Order ... that [ordered] Plaintiff [to] serve and file answers and objections to Defendant[s'] interrogatories and request for production of documents no later than December 23, 2010[.]" (Id. at 1.) In seeking this extension of time to serve answers and objections, Plaintiff alleges that he was not "reasonably able to timely comply because [] Defendants['] colleagues unnecessarily confiscated/withheld from his possession/control his word processor which is the only means for him to retrieve/print his only copy of his answers and objections[.]" (Id. at 4.) Plaintiff further argues that even "assuming that the Court intended to burden Plaintiff with the obligation to prepare, for a third time now, his answers and objections, he does not have adequate, effective, and meaningful access to the various means that are needed to do so." (Id.) (emphasis omitted).
Defendants oppose Plaintiff's requests for additional time to complete discovery and serve responses and objections to Defendants' interrogatories and request for production of documents, and cross move to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(v) for failing to cooperate with discovery in this case. (Defs.' Cross-Mot. to Dismiss 1.) Defendants' cross-motion constitutes Defendants' third motion to dismiss Plaintiff's complaint for failing to comply with discovery. Defendants assert that "[m]ore than twenty days ha[ve] passed since the Court's December 3, 2010 Order" and Defendants have still not received Plaintiff's responses. (Id. at 6, 8.) Defendants argue that an application of the factors set forth in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), warrants dismissal of Plaintiff's complaint. (Id. at 7.) Specifically, Defendants argue that Plaintiff has failed to comply with multiple orders directing him to serve discovery responses for nearly a year, and that Plaintiff's failure to comply "for almost one year demonstrates his history of dilatoriness and ... that Plaintiff is acting in bad faith as he has made no effort to engage in discovery." (Id. at 8.) Defendants contend that because "this is Plaintiff's case, Plaintiff bears the sole responsibility for prosecuting this matter fully, which involves participating in discovery and complying with court orders[.]" (Id.) Defendants also assert that Plaintiff's failure to comply with discovery is prejudicial to them because they are unable to properly defend themselves in this action. (Id.) Defendants represent that as of January 24, 2011 they still had not received any discovery from Plaintiff. (Id.; see also Decl. of Jennifer S. Hsia [Doc. No. 63-2] ¶ 13.) Defendants also refute Plaintiff's claims that he has had limited access to the law library and that his word processor was confiscated. (Defs.' Cross-Mot. to Dismiss 9.) Defendants contend that over the past several months Plaintiff has "borrowed law books, received copies of cases, and cop[i]es of 2011 Lawyers Diary pages on multiple occasions[,]" and "has had access to legal materials, most notably, six times in September and November [of 2010] respectively." (Id. at 9; see also Decl. of Jennifer S. Hsia [Doc. No. 63-2] ¶ 14, Ex. A). Thus, Defendants argue that "Plaintiff's representation to the Court that he has had little or no access to legal material is false or at the very least, misleading." (Defs.' Cross-Mot. to Dismiss 9.) Defendants also refute Plaintiff's claims that his word processor was illegally confiscated from him. (Id. at 10.) Defendants represent that Plaintiff's word processor was confiscated from him on December 17, 2009, as a result of a disciplinary charge for possession of an electronic device related to Plaintiff's attempt to hide a cellular telephone inside of the word processor. (Id.; see also Decl. of Jennifer S. Hsia [Doc. No. 63-2] ¶ 15, Ex. B, 1-2.) Defendants also note that Plaintiff's word processor was later picked up at Northern State Prison by Plaintiff's wife. (Defs.' Cross-Mot. to Dismiss 10; see also Decl. of Jennifer S. Hsia [Doc. No. 63-2] ¶ 15, Ex. B, 1-2.) Accordingly, Defendants argue that "Plaintiff cannot claim that he cannot provide discovery to Defendants because the discovery material is on his word processor because Plaintiff stated that he allegedly served Defendants a second time with discovery in August of 2010, well after his word processor was confiscated." (Defs.' Cross-Mot. to Dismiss 10.) Defendants further argue that "[i]n any event, Plaintiff cannot claim that he needs his word processor to participate in civil litigation because he has been able to file multiple motions and letters to the court after" his word processor was confiscated in December 17, 2009. (Id.)
The Court has discretion to manage the schedule of litigation under Federal Rule of Civil Procedure 16. See generally FED. R. CIV. P. 16; see also Newton v. A.C. & S., Inc., 918 F.2d 1121, 1126 (3d Cir. 1990) ("The intent and spirit of Rule 16 is to allow courts to actively manage the timetable of case preparation[.]"); see also U.S. Sec. & Exch. Comm'n v. Infinity Grp. Co., 212 F.3d 180, 197 (3d. Cir. 2000) (stating that "[m]atters of docket control and scheduling are within the sound discretion of the district court."). Rule 16 provides that the Court may modify a scheduling order "only for good cause and with the judge's consent." FED. R. CIV. P. 16(b)(4). To establish good cause in this context, the party seeking the extension must show that the deadlines set forth in the scheduling order "cannot reasonably be met despite the diligence of the party seeking the extension." FED. R. CIV. P. 16(b) Advisory Committee Notes to 1983 Amendments; see also Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 469 (D.N.J. 1990); McElyea v. Navistar Int'l Transp. Corp., 788 F. Supp. 1366, 1371 (E.D. Pa. 1991), aff'd without opinion, 950 F.2d 723 (3d Cir. 1991). Good cause may also be satisfied if the movant shows that the inability to comply with a scheduling order is "'due to any mistake, excusable neglect or any other factor which might understandably account for failure of counsel to undertake to comply with the Scheduling Order.'" Newton v. Dana Corp., Parish Div., Civ. No. 94-4958, 1995 U.S. Dist. LEXIS 8473, at *3 (E.D. Pa. 1995) (quoting Gestetner Corp. v. Case Equipment Co., 108 F.R.D. 138, 141 (D. Me. 1985)). "In the absence of proof of good cause, 'the scheduling order shall control.'" Id. at *2 (quoting 6A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1522.1 (2d ed. 1997)). Furthermore, Federal Rule of Civil Procedure 6(b)(1) provides that when an act must be performed within a specified time the Court may extend time upon a showing of "good cause" before the original time expires or where the party "failed to act because of excusable neglect." FED. R. CIV. P. 6(b)(1)(A) & (B). In determining whether a party has failed to act because of "excusable neglect," courts consider a number of relevant factors including: "(1) the danger of the prejudice to the non-movant, (2) the length of the delay, (3) the reason for the delay, (4) whether the movant acted in good faith, and (5) whether the inadvertence was a result of ignorance of the rules of procedure." Sokoloff v. General Nutrition Companies, Inc., No. 00-641, 2001 WL 536072, at *4 (D.N.J. May 21, 2001)(citing Schering Corp. v. Amgen, Inc., 198 F.R.D. 422, 426 (D. Del. 2001)).
In his motion, Plaintiff requests two separate extensions of time. First, Plaintiff requests an extension of time to complete pretrial factual discovery beyond the October 15, 2010 deadline set forth in the Court's September 20, 2010 Scheduling Order. (Pl.'s Mot. to Extend the Deadline to Complete Pretrial Factual Disc. 1.) Plaintiff contends that he was not able to conduct discovery and comply with the October 15, 2010 deadline because he lacks adequate, effective, and meaningful access to the means necessary to do so. (Id. at 4.) Despite these assertions by Plaintiff, the Court finds that there is no sufficent basis to grant another extension of time to complete discovery in this case. As set forth supra, the Court previously granted multiple extensions of time in this case, and Plaintiff's present motion fails to demonstrate good cause under Rule 16 to warrant the requested extension of the discovery deadline. Plaintiff has not demonstrated that he has acted diligently in pursuing discovery in this case. Plaintiff also seeks an extension of time to file and serve answers and objections to Defendants' discovery requests pursuant to the Court's December 3, 2010 Order. (Id.) The Court's December 3, 2010 Order required Plaintiff to serve answers to Defendants' discovery requests within twenty days of the date of that Order - December 23, 2010. (Order [Doc. No. 53] 6, Dec. 3, 2010.) Plaintiff asserts that he needs additional time beyond that deadline because his word processor, which was his only means to retrieve and print his responses, was unnecessarily confiscated from his possession. (Pl.'s Mot. to Extend the Deadline to Complete Pretrial Factual Disc. 4.) However, Plaintiff has not established good cause to warrant an extension of time to serve his responses. Specifically, as set forth more fully infra, Plaintiff's proffered reasons for seeking this extension contradict other representations Plaintiff has made to the Court. In light of Plaintiff's failure to demonstrate good cause for either extension, the Court recommends that Plaintiff's motion be denied. Having found that further extensions of time are not warranted in this case, the Court will now address the merits of Defendant's cross-motion to dismiss Plaintiff's complaint for failure to cooperate with discovery.
Federal Rule of Civil Procedure 33(b)(2) requires a party responding to interrogatories to serve its answers and any objections within thirty (30) days after being served with the interrogatories, unless the parties stipulate to a longer time or the Court orders additional time to respond. FED. R. CIV. P. 33(b)(2). As to Defendants' request for production of documents, Federal Rule 34(b)(2)(A) states that a written response to a request for documents must be provided within thirty (30) days after being served with such a discovery request, unless the parties stipulate to a longer time or the Court orders additional time to respond. FED. R. CIV. P. 34(b)(2)(A).
The Federal Rules of Civil Procedure provide for sanctions for non-compliance with discovery orders. As this Court recognized in Chiarulli v. Taylor, No. 08-4400, 2010 WL 1371944, at *2, (D.N.J. Mar. 31, 2010), both
Rules 16 and 37 of the Federal Rules of Civil Procedure authorize a court to sanction a party that fails to comply with a court order. Pursuant to FED. R. CIV. P. 16(f)(1), the court may "issue any just orders, including those authorized by Rule 37(b)(2)(A) (ii)-(vii), if a party or its attorney ... fails to obey a scheduling or other pretrial order." FED. R. CIV. P. 16(f)(1)(C). FED. R. CIV. P. 37(b)(2)(A) provides that the Court may sanction a party by "dismissing the action or proceeding in whole or in part[.]" FED. R. CIV. P. 37(b)(2)(A)(v). In addition, under FED. R. CIV. P. 41(b), the Court may enter an order dismissing an action with prejudice for a plaintiff's failure to prosecute the case. See
FED. R. CIV. P. 41(b).Accordingly, "[i]n deciding whether sanctions that 'deprive a party of the right to proceed with or defend against a claim' are appropriate, the Court considers the following factors set forth by the Third Circuit in Poulis v. State Farm Fire & Cas. Co." Chiarulli, 2010 WL 1371944, at *2. The Poulis factors include an examination of:
(i) the extent of the party's personal responsibility;
(ii) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery;
(iii) a history of dilatoriness;
(iv) whether the conduct of the party or the attorney was willful or in bad faith;
(v) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; andChiarulli, 2010 WL 1371944, at *2 (citing Poulis, 747 F.2d at 868). As this Court previously recognized in Chiarulli, the Poulis factors are applicable whenever the court considers sanctions that deprive a party of the right to proceed with or defend against a claim. 2010 WL 1371944, at *2 (citing Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912, 919 (3d Cir. 1992)). Moreover, "[d]ismissals with prejudice or defaults are drastic sanctions, termed 'extreme' by the Supreme Court, ... and are to be reserved for [such] cases." Chiarulli, 2010 WL 1371944, at *2 (citing Poulis, 747 F.2d at 867-68 (citing Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976))).
(vi) the meritoriousness of the claim or defense.
Rule 37(b)(2)(A) provides in pertinent part that:
[i]f a party ... fails to obey an order to provide or permit discovery, including an order made under Rule 26(f), 35, or 37(a), the court in which the action is pending may issue further just orders. They may include the following:
...
(iii) striking pleadings in whole or in part;
...
(v) dismissing the action or proceeding in whole or in part[.]
FED. R. CIV. P. 37(b)(2)(A)(iii), (v).
As the granting of Defendants' cross-motion would deprive Plaintiff of the right to proceed in this matter, the Court must examine the Poulis factors as set forth above. As to factor one, the Court finds that Plaintiff is personally responsible for his failure to comply with discovery in this case and the Court's Orders of April 12, 2010, July 20, 2010, and December 3, 2010. Because Plaintiff is proceeding pro se in this action rather than through counsel, he is directly responsible for his conduct in this litigation, particularly his failure to comply with the rules of discovery and the Court's prior Orders. See, e.g., Balla v. Vortex, No. 10-104, 2011 WL 1749928, at *2 (D.N.J. May 6, 2011) ("Plaintiff chose to proceed pro se and, therefore, bears sole responsibility for the prosecution of his claims and compliance with the rules of discovery and this Court's orders."); Chiarulli, 2010 WL 1371944, at *2 (finding pro se plaintiff responsible for his conduct in the litigation) (citing Wade v. Wooten, No. 90-2373, 1993 WL 298715, at *3 (E.D. Pa. July 30, 1993) ("In this case plaintiff has proceeded pro se. Thus, he is directly responsible for his own actions, or lack thereof.")). See also Coley v. Bucks County Children & Youth Services Agency, 173 F. App'x 961, 963 (3d Cir. 2006) (finding that under the first Poulis factor, a pro se litigant "is wholly responsible for his failure" to comply with an order of the court). Accordingly, the Court finds that the first Poulis factor weighs in favor of dismissing Plaintiff's complaint.
As noted in Chiarulli, "[u]nder the second Poulis factor, the Court examines the prejudice to other parties caused by the delay, including considering whether the party's conduct has resulted in 'extra costs, repeated delays, and the need to file additional motions in response to the abusive behavior of the responsible party.'" 2010 WL 1371944, at *3 (citing Huertas v. City of Philadelphia, No. 02-7955, 2005 WL 226149, at *3 (E.D. Pa. Jan. 26, 2005), aff'd, 139 F. App'x 444 (3d Cir.), cert. denied, 546 U.S. 1076, 126 S. Ct. 829, 163 L. Ed. 2d 707 (2005).) As this Court has previously found, "[a] party may also be prejudiced if its 'ability to prepare effectively a full and complete trial strategy' is impeded." Chiarulli, 2010 WL 1371944, at *3 (citing Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir.2003)). Accordingly, "[a] finding of prejudice to the opposing party under Poulis 'weighs heavily in favor of dismissal.'" Chiarulli, 2010 WL 1371944, at *3 (citing Huertas, 2005 WL 226149, at *3). In the present case, Defendants assert that Plaintiff's failure to comply with discovery and various Court Orders has prejudiced Defendants because they are unable to properly defend themselves in this action. (Defs.' Cross-Mot. to Dismiss 8.) The Court also notes that as a result of Plaintiff's failure to provide responses to interrogatories and requests for production of documents, Defendants first had to file a motion to dismiss or alternatively to compel discovery [Doc. No. 28], and then had to file two subsequent motions to dismiss Plaintiff's complaint [Doc. Nos. 51 & 63] over the course of the approximately twenty-month period since discovery was first propounded upon Plaintiff. The Court further notes that multiple extensions of time were granted at Plaintiff's request to extend the deadline for discovery and to allow Plaintiff to comply with the Court's prior Orders for serving responses on Defendants. Here, Defendants sought discovery from Plaintiff in May of 2009, but Plaintiff has failed to respond despite multiple Orders compelling him to provide discovery, and as of January 24, 2011, Plaintiff still had not served any responses on Defendants. (Defs.' Cross-Mot. to Dismiss 8; see also Decl. of Jennifer S. Hsia [Doc. No. 63-2] ¶ 13.) Therefore, the Court concludes that Plaintiff's conduct has resulted in repeated delays in this case, has caused Defendants to file additional motions in response to that conduct, and finds that Defendants are prejudiced by Plaintiff's continued non-compliance because they are unable to obtain the information necessary to refute Plaintiff's allegations, making them "unable to defend the case and resolve it in a timely manner." See Chiarulli, 2010 WL 1371944, at *3. Accordingly, the Court finds that the second Poulis factor weighs in favor of dismissing Plaintiff's complaint.
"Under the third Poulis factor, the Court examines whether there is a pattern of dilatoriness. 'Extensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders.'" Chiarulli, 2010 WL 1371944, at *3 (citing Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994) (citing Poulis, 747 F.2d at 868)). A history of dilatoriness by Plaintiff exists in this case because Plaintiff has not responded to interrogatories and requests for the production of documents that were served on him nearly two years ago. See JPMorgan Chase Bank, N.A. v. Candor Const. Group, Inc., No. 08-3836, 2010 WL 1490830, at *3 (D.N.J. Apr. 13, 2010) (granting motion for default judgment and finding history of dilatoriness existed where defendants failed to respond to interrogatory requests for over a year and failed to adhere to the court's discovery schedule). Plaintiff's history of dilatoriness in this case is further demonstrated by his consistent failure to comply with this Court's Orders of April 12, 2010, July 20, 2010, and December 3, 2010. Martino v. Solaris Health Sys. Corp., No. 04-6324, 2007 WL 1959226, at *2, 5 (D.N.J. June 29, 2007) (adopting report and recommendation for dismissal of complaint where magistrate judge found that "Plaintiff's history of dilatoriness [was] apparent from the record as he [had] not responded to Defendants' letters requesting discovery and ha[d] not complied with th[e] Court's Orders.") In light of the delay in this case caused by Plaintiff's persistent lack of response to Defendants' discovery requests and this Court's Orders, the Court finds that the third Poulis factor weighs in favor of dismissal of Plaintiff's complaint.
"The fourth factor set forth in Poulis is whether Plaintiff's conduct is willful or in bad faith. In the context of discovery sanctions, willfulness and bad faith 'involve[] intentional or self-serving behavior.'" Chiarulli, 2010 WL 1371944, at *3 (citing Adams, 29 F.3d at 875). "By contrast, 'negligent behavior' or 'failure to move with ... dispatch' - even if 'inexcusable' - will not suffice to establish willfulness or bad faith." Chiarulli, 2010 WL 1371944, at *3 (citing Adams, 29 F.3d at 875-76). However, where the record is unclear as to whether a party acted in bad faith, a consistent failure to obey orders of the court, "at the very least, renders [a party's] actions willful for the purposes of the fourth Poulis factor." Martino, 2007 WL 1959226, at *5 (citing Gillian v. Cape May County Corr., No. 05-1177, 2006 WL 3454864, at *3 (D.N.J. Nov. 28, 2006)). Here, Plaintiff asserts that he was not able to timely comply with the Court's December 3, 2010 Order requiring him to serve or re-serve discovery responses on Defendants because his word processor, which constitutes his only means to retrieve and print his only copy of his responses, was unnecessarily confiscated. (Pl.'s Mot. to Extend the Deadline to Complete Pretrial Factual Disc. 4.) However, Plaintiff's assertion is belied by Defendants' demonstration that Plaintiff's word processor was confiscated in December of 2009 as a result of a disciplinary charge brought against Plaintiff regarding possession of an electronic device. (Defs.' Cross-Mot. to Dismiss 10; see also Decl. of Jennifer S. Hsia [Doc. No. 63-2] ¶ 15, Ex. B, 1-2.) As Defendants highlighted for the Court, Plaintiff's current assertion regarding the necessity of his word processor in order to respond to discovery is directly contradicted by Plaintiff's prior representations in response to Defendants' previous motion to dismiss. Specifically, Plaintiff previously represented that "on two separate occasions, he ... prepared his responses and submitted same to Defendant[s'] counsel. Those occasions were October 22, 2009 and August 11, 2010[.]" (See Pl.'s Response in Opp'n to Defs.' Mot. to Dismiss [Doc. No. 52] 1-2.) Thus, Plaintiff's representation that he previously served a copy of his responses on Defendants on August 11, 2010, nearly eight months after his word processor was confiscated in December of 2009, casts significant doubt on Plaintiff's proffered reason for failing to submit his discovery responses. If Plaintiff did serve a copy of his responses on August 11, 2010, then he did so without access to his word processor, and he should have been able to comply with the December 3, 2010 Order. On the other hand, if Plaintiff requires access to his word processor to submit responses, then Plaintiff's prior representation to the Court that he already served discovery responses on Defendants on August 11, 2010 is contradicted. Moreover, as set forth supra, Defendants have demonstrated that, despite Plaintiff's claims to the contrary, he has had access to the law library and legal materials. (Defs.' Cross-Mot. to Dismiss 9; see also Decl. of Jennifer S. Hsia [Doc. No. 63-2] ¶ 14, Ex. A). The Court notes that Plaintiff failed to file any opposition to Defendants' cross motion, and thus has not attempted to address Defendants' arguments. Furthermore, while the Court recognizes that Plaintiff is a pro se prisoner, the record clearly indicates that he was able to file multiple motions and letters with the Court, and the District Court has already found that the docket contradicts Plaintiff's assertion that he has been denied adequate and appropriate meaningful access to the Court. (Mem. Order [Doc. No. 57] 3, Jan 6, 2011.) Plaintiff's consistent failure to obey the Court's orders and his proffered reasons for failing to do so clearly demonstrate that his conduct is, at the very least, willful. See Martino, 2007 WL 1959226, at *5 (finding that a consistent failure to obey orders of the court, "at the very least, renders [a party's] actions willful for the purposes of the fourth Poulis factor[,]" even where the record is unclear as to whether the party acted in bad faith). Accordingly, the fourth Poulis factor also weighs in favor of dismissal of Plaintiff's complaint.
With respect to the fifth Poulis factor, Defendants have not articulated any reasons why dismissal of Plaintiff's complaint is the most appropriate sanction under the circumstances. However, Plaintiff has failed to comply with the Court's directives notwithstanding that the April 12, 2010, July 20, 2010, and December 3, 2010 Orders expressly provided that a failure to comply may result in the imposition of sanctions, including without limitation the dismissal of Plaintiff's complaint. The Court thus concludes that alternative sanctions would not prompt Plaintiff to comply with his discovery obligations given his refusal to comply thus far even after being placed on notice that sanctions may be imposed. See Genesis Eldercare Rehab. Servs., Inc. v. Beam Mgmt., LLC, No. 07-1843, 2008 WL 1376526, at *2 (E.D. Pa. Apr.9, 2008) (defendant "has demonstrated its complete neglect of its obligations as a litigant in this matter. Given [defendant's] willful non-compliance, we do not believe that a monetary sanction would be sufficient in this case."); Jackson Hewitt, Inc. v. Adams, No. 04-3610, 2006 WL 1457989, at *3 (D.N.J. May 22, 2006) ("Ultimately, the Court was forced to enter an order directing the parties to appear for a conference. Despite the clear language of this order, [defendant] nevertheless ignored it. Thus, it can be inferred that alternative sanctions such as monetary sanctions would not prompt an appropriate response from defendant."). Moreover, given Plaintiff's status as an indigent prisoner, the Court finds that monetary sanctions are inappropriate and insufficient in this case. Bernard v. Stanfield, No. 07-3394, 2009 WL 5205271, at *3 (D.N.J. Dec. 22, 2009) (noting the court's agreement with defendant's argument under fifth Poulis factor that "monetary sanctions would be inappropriate or insufficient given Plaintiff's status as an indigent prisoner").
Finally, in considering the sixth Poulis factor, the Court, at this stage of the proceedings does not have sufficient grounds to evaluate the meritoriousness of Plaintiff's claims. The Court notes that Plaintiff's claims were permitted to proceed past sua sponte dismissal. (Order [Doc. No. 6] 2, June 30, 2008.) Thus, the Court will assume for purposes of this analysis that Plaintiff's claims have merit.
As the Court has previously noted, "Poulis requires the District Court only to balance the six factors and does not set one factor forth as determinative." Chiarulli, 2010 WL 1371944, at *4 (citing Poulis, 747 F.2d at 868-70 (upholding dismissal even though only two of six factors weighed in favor of dismissal); Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) (finding that "not all of the Poulis factors need be satisfied in order to dismiss a complaint."). Thus, in this case, the Court finds that on balance the Poulis factors warrant dismissal of the action pursuant to FED. R. CIV. P. 16(f) and 37(b)(2)(A) for Plaintiff's failure to comply with the Court's Orders of April 12, 2010, July 20, 2010, and December 3, 2010. Plaintiff is personally responsible for his failure to comply with the Court's Orders and participate in discovery in this litigation, which has prejudiced Defendants. Plaintiff has a history of dilatoriness based on his willful failure to comply with court orders. The Court finds that no alternative sanctions will be effective. Consequently, the Court respectfully recommends that Defendants' cross-motion to dismiss be granted, and Plaintiff's complaint be dismissed with prejudice.
Any objections to this Report and Recommendation must be filed within fourteen (14) days of service pursuant to L. CIV. R. 72.1 (c)(2) and FED. R. CIV. P. 72(b).
s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE Dated: May 20, 2011 cc: Hon. Renée Marie Bumb ORDER
This matter having come before the Court by way of Plaintiff's motion seeking an extension of time to serve answers and objections to Defendants' discovery requests and an extension of time to complete pretrial factual discovery, and by way of Defendants' cross-motion to dismiss Plaintiff's complaint for the failure of Plaintiff to comply with the Court's Orders and to comply with his discovery obligations in this case; and the Court having considered the Report and Recommendation submitted by the Honorable Ann Marie Donio, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C); and the Court having made a de novo review; and for good cause shown;
IT IS on this ___ day of __________ 2011 hereby
ORDERED that the Report and Recommendation is ADOPTED ; and it is further
ORDERED that Plaintiff's motion [Doc. No. 56] is DENIED ; and it is further
ORDERED that Defendant's cross-motion to dismiss [Doc. No. 63] is GRANTED ; and it is further
ORDERED that Plaintiff's Complaint is hereby DISMISSED WITH PREJUDICE.
/s/_________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE