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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

NOT FOR PUBLICATION

ALEXANDER RIVERA,

 

 Plaintiff,

v.

63 ELM STREET REALTY, LLC 

d/b/a MONTCLAIR TOWERS, and 

MICHAEL KARIMI, 

individually,

 

 Defendants.

Civil Action No. 

2:11-CV-00841-SDW-SCM

ON MOTION TO DISMISS [D.E.43]

FOR FAILURE TO COMPLY WITH 

COURT ORDERS

AND FOR FAILURE TO PROSECUTE 

REPORT AND RECOMMENDATION

STEVEN C. MANNION, United States Magistrate Judge.

I. INTRODUCTION

Before the Court are defendants 63 Elm Street Realty, LLC’s

and Michael Karimi’s (hereinafter “Defendants”) Motion to 

Dismiss the Complaint of plaintiff Alexander Rivera. (ECF Docket 

Entry No. (“D.E.”) 43). Pursuant to Local Civil Rule 

72.1(a)(2), the Honorable Susan D. Wigenton, United States 

District Judge, has referred the instant matter to the 

undersigned for report and recommendation. (D.E. 44). For the 

reasons set forth herein, it is respectfully recommended that 

this action be dismissed without prejudice.

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II. BACKGROUND AND PROCEDURAL HISTORY

On February 15, 2011, plaintiff Alexander Rivera

(“Plaintiff’) filed his complaint against defendants 63 Elm 

Street Realty, LLC and Michael Karimi. (D.E. 1). Plaintiff 

asserted that, while working more than 40 hours per week as a 

building superintendent for the Defendants’ residential 

apartment building, the Defendants refused to pay him time and a 

half for working overtime. Id. Plaintiff alleged wage 

violations under the Fair Labor Standards Act of 1938 (“FLSA”), 

as well as under the New Jersey Wage Payment Law (“NJWPL”). Id.

Due to the fact that the matter was pending for more than 

four months without any proceeding, on April 2, 2013, Judge 

Wigenton dismissed the case without prejudice. (D.E. 13). 

However, at the request of Plaintiff’s counsel (D.E. 14), Judge 

Wigenton reopened the case and placed it back on the Court’s 

active docket on April 25, 2013. (D.E. 15). 

After numerous discovery issues and extensions, Plaintiff’s 

counsel filed a Motion to Withdraw as Attorney. (D.E. 33). The 

Motion hearing was held on December 16, 2014 before the 

Honorable Steven C. Mannion (D.E. 37), and was subsequently 

granted the following day. (D.E. 38). During this hearing, 

Plaintiff notified the Court that he would continue the matter 

pro se. Id. 

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Upon the Motion made by the Defendants for an Order 

compelling Plaintiff to produce the outstanding discovery 

responses (D.E. 39), on January 5, 2015, Judge Mannion directed 

the Plaintiff to answer the Defendants’ discovery demands by 

January 26, 2015. (D.E. 40). Plaintiff was also ordered to 

schedule a deposition with the Defendants, which was supposed to 

occur no later than February 9, 2015. Id. Plaintiff was 

notified that if he were to “fail to appear for depositions on 

the scheduled date, time and location agreed upon, upon 

application by Defendants’ counsel, Plaintiff’s complaint may be 

dismissed.” Id. Nevertheless, Plaintiff failed to abide by 

either of these orders as Plaintiff did not provide the 

Defendants with the requested discovery responses and did not 

make himself available for a deposition by February 9, 2015. 

(D.E. 43). 

By Text Order, Defendants were granted leave to move for 

discovery sanctions by March 9, 2015 for Plaintiff’s failure to 

appear for deposition. (D.E. 42). On March 9, 2015, Defendants

filed their Motion to Dismiss. (D.E. 43). 

A telephone conference was set for April 13, 2015 before 

Judge Mannion; however, Plaintiff failed to submit papers 

showing good cause why the case should not be dismissed, and 

failed to appear for the telephone conference. Counsel for 

Defendant did call in.

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III. LEGAL STANDARD AND ANALYSIS

Courts have the authority to dismiss a lawsuit for a 

party’s failure comply with the court's orders and for a party’s 

failure to prosecute. Fed.R.Civ.P. 16(f)(1)(C), 37(b)(2)(A)(v), 

41(b). This case should be dismissed for both reasons.

A. Rule 41, Failure to Prosecute

The Complaint in this matter may be dismissed by the 

District Court pursuant to Federal Rule of Civil Procedure 

41(b). Rule 41(b) allows a court to dismiss an action for 

failure to “prosecute or to comply with [the] rules or a court 

order.” Fed.R.Civ.P. 41(b). Ordinarily, to ensure “that a 

party still has [his or] her day in court,” Knoll v. City of 

Allentown, 707 F.3d 406, 410 (3d Cir. 2013), the court must 

consider the six factors adopted by the Third Circuit in Poulis 

v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)

before dismissal. However, the Poulis factors need not be 

considered where the dismissal is without prejudice. Choi v. 

Kim, 258 Fed.Appx. 413, 417 at n.5 (3d Cir. 2007).

Local Civil Rule 41.1 similarly provides that civil cases 

“which have been pending in the Court for more than 120 days 

without any proceedings having been taken therein must be 

dismissed for lack of prosecution . . . unless good cause is 

shown with the filing of an affidavit or other document 

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complying with 28 U.S.C. § 1746 from counsel of record or the 

unrepresented party.” 

Here, the docket shows Plaintiff’s last significant 

involvement in the case was on October 10, 2014. His former 

counsel appeared for a telephone conference with the Court. 

(D.E. 32). Thereafter, Plaintiff’s counsel moved to withdraw 

and the motion was not opposed. (D.E. 33).

Plaintiff and all counsel were ordered to appear for the 

motion hearing. (D.E. 36). Plaintiff was late, but did appear 

for less than one minute on December 16, 2014. He entered the 

Court room and was told that this was a hearing in which his 

then attorney was moving to be relieved as counsel. Plaintiff 

then excused himself under pretense of needing to use the 

restroom and never returned. (D.E. 37). 

Plaintiff has failed to prosecute his claims or to defend 

against motions seeking relief against him for well over 120

days. Good cause for his failure has thus far not been shown.

B. Rule 16(f), Failure to Comply With Court Orders

Federal Rules of Civil Procedure 16(a) through (e) 

prescribe standards governing pretrial conferences, scheduling 

orders, and case management. Rule 16(f) authorizes sanctions 

for violations of the standards. It provides, in relevant part,

that “[o]n motion or on its own, the court may issue any just 

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orders ... if a party or its attorney ... fails to obey a 

scheduling or other pretrial order.” Fed.R.Civ.P. 16(f)(1)(C). 

This provision expressly incorporates the menu of sanctions 

available in Rule 37(b)(2)(A)(v), among others, for dismissal 

following a failure to comply with a discovery order.

Here, Plaintiff, along with all counsel, was ordered to

appear for the December 16, 2014 motion hearing. (D.E. 36). 

Plaintiff appeared for less than one minute, excused himself, 

and never returned. (D.E. 37). That was his first noncompliance.

Next, Plaintiff failed to comply with an Order, (D.E. 40) 

from the Court to produce discovery and appear for a deposition. 

So, Defendants moved to dismiss on March 9, 2015. (D.E. 43).

Plaintiff has not opposed the motion, has not contacted the 

Court or defense counsel.

This Court then scheduled a telephone status conference for 

April 13, 2015. (D.E. 42). Defense counsel telephoned in for 

the conference on the record. Plaintiff did not call in for the 

telephone status conference and did not contact the Court or 

defense counsel. This was Plaintiff’s third violation of a 

Court order.

Clearly, Defendants cannot move forward without discovery 

and the Court cannot manage the case without Plaintiff’s 

compliance. Plaintiff’s Complaint should therefore be dismissed 

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without prejudice pursuant to Rules 16(f) and 37(b)(2)(A)(v).

IV. CONCLUSION

For the reasons articulated herein, the undersigned 

recommends that this matter be dismissed without prejudice for 

failure to prosecute and for failure to comply with the Court’s 

orders. The parties have fourteen days to file and serve 

objections to this Report and Recommendation pursuant to 28 

U.S.C. § 636 and L. Civ. R. 71.1(c)(2) to show that they have 

valid claims and to provide proofs that they have respectively 

been actively pursuing their claims.

The Clerk will mail copies of this Report to the Plaintiff 

at the address set forth below.

 

4/15/2015 5:11:21 PM

c (via ECF):

Defense Counsel

c (via U.S. Mail): 

Alexander Rivera

122 Grand Concourse

Bronx, New York 10456

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