IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

ALBA I. ACEVEDO and JOSEPH 

ACEVEDO 

 Plaintiffs, 

 v. 

AMERICAN AIRLINES, INC., XYZ 

CORPORATION, 

 Defendants. 

 

HONORABLE JEROME B. SIMANDLE 

Civil Action 

No. 11-3830 (JBS/AMD) 

MEMORANDUM OPINION

 

 

SIMANDLE, Chief Judge: 

 This matter comes before the Court on Defendant American 

Airlines, Inc.’s (“American Airlines”) motion to dismiss [Docket 

Item 12] the Complaint filed by Plaintiffs Alba I. Acevedo and 

Joseph Acevedo [Docket Item 1], for failure to prosecute. 

Plaintiffs filed an action in June of 2011 against American 

Airlines, seeking damages for an injury that Alba Acevedo 

suffered while on board an American Airlines flight arriving 

into Philadelphia International Airport. (Compl. ¶¶ 6-10.) In 

December of 2011, American Airlines notified the Court that it 

had filed a voluntary petition under Chapter 11 of the 

Bankruptcy Code, and the Court stayed all proceedings in this 

case shortly thereafter. (Dec. 5, 2011 Order [Docket Item 11].) 

The case remained inactive for over three years until January 

2015, when Defendant moved dismiss this case for failure to 

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prosecute under Fed. R. Civ. P. 41(b). Over five months have 

passed, and Plaintiffs have filed no response. 

For the reasons set forth below, the Court will dismiss 

this action under Rule 41(b) unless Plaintiffs, within fifteen 

(15) days from the entry of this Opinion, file an opposition to 

Defendant’s motion to dismiss and demonstrate good cause for 

their failure to prosecute. The Court finds as follows: 

1. On June 30, 2011, Plaintiffs, New Jersey residents 

Alba I. Acevedo and Joseph Acevedo, filed a Complaint against 

American Airlines, Inc., and unnamed XYZ Corporation after 

Plaintiff Alba Acevedo “was severely, painfully, and permanently 

injured as a direct and proximate result of the negligence” of 

Defendants while on board an American Airlines flight arriving 

into Philadelphia International Airport. (Compl. ¶ 10.) The 

Complaint alleges that Defendant American Airlines’ employees 

were negligent in keeping the aircraft equipment in safe 

condition, failing to warn Plaintiff Alba Acevedo of 

malfunctioning equipment, and failing to maintain a safe 

environment. (Compl. ¶ 11.) The Complaint alleged counts of 

negligence with respect to Alba Acevedo (Counts One and Two) and 

loss of consortium with respect to Joseph Acevedo (Count Three).1 

2. Defendants answered the Complaint on August 5, 2011, 

and shortly thereafter, on September 20, 2011, by the consent of 

 

1 Because Plaintiffs alleged that Defendant was incorporated in 

Texas and the amount-in-controversy exceeded $75,000, 

jurisdiction was proper under 28 U.S.C. § 1332. 

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both parties, the Honorable Ann M. Donio, United States 

Magistrate Judge, entered an Order placing the case into 

arbitration. [Docket Item 7.] However, on December 2, Defendant 

American Airlines filed a Notice of Suggestion of Bankruptcy, 

notifying the Court that Defendant had filed a voluntary 

petition under Chapter 11 of the Bankruptcy Code in the United 

States Bankruptcy Court for the Southern District of New York. 

[Docket Item 10.] The Court subsequently stayed all proceedings 

and administratively terminated the case on the docket. [Docket 

Item 11.] 

3. This case remained inactive until January 30, 2015, 

when Defendant American Airlines moved to dismiss the case for 

lack of prosecution under Fed. R. Civ. P. 41(b). (Mot. to 

Dismiss [Docket Item 12].) In a certification filed by 

Defendant’s attorney, John V. Mallon, Esq., Mr. Mallon states 

that Plaintiff’s claims against Defendant are covered by an 

insurance policy, the proceeds of which are not subject to the 

bankruptcy proceeding, but that to date, Plaintiff has not 

sought to modify the bankruptcy stay in order to pursue recovery 

against the proceeds of the insurance policy, despite 

communicating in 2012 and 2013 with Defendant’s counsel about 

doing so. (Mallon Cert. to Mot. to Dismiss [Docket Item 12-1] ¶¶ 

7-8.) 

4. Defendant included several letters in an exhibit 

attached to their motion to dismiss. In a letter to Defendant 

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dated June 19, 2012, signed by a “Joe Greble”2 at John A. Klamo, 

Esq., P.C., the office which represents Plaintiffs, Mr. Greble 

referenced a discussion that he had with Mr. Mallon that day and 

wrote, “It is our belief that the bankruptcy your insured, 

American Airlines, Inc. went through has been sufficiently 

resolved and therefore we believe ample time has passed to 

settle this matter. At this time I am requesting a status on the 

above captioned claim.” (June 19, 2012 Letter, Ex. C to Mot. to 

Dismiss [Docket Item 12-2].) The letter indicated that 

Plaintiffs were demanding $17,500.00 to settle the claim, which 

was the amount owed on Plaintiff’s outstanding medical bills. 

(Id.) Mr. Mallon wrote back on July 6, 2012, saying that Mr. 

Greble’s letter had been forwarded to Defendant and that “you 

will be contacted by American’s bankruptcy counsel with 

information on a procedure to request that the bankruptcy stay 

to be lifted.” (July 6, 2012 Letter, Ex. C to Mot. to Dismiss.) 

5. The next correspondence attached to Defendant’s motion 

is a letter dated April 17, 2013, from Mr. Mallon to Mr. Klamo. 

In this letter, Mr. Mallon references a modification of the 

bankruptcy stay: 

You had previously inquired as to the procedure for 

requesting a modification of the bankruptcy stay. Kindly 

advise if you have taken any steps to request a 

modification of the stay, in order to proceed with your 

client’s lawsuit. You should have received information 

from American’s bankruptcy counsel regarding the 

 

2 Mr. Greble is identified in the letter as the Office Manager at 

John A. Klamo, Esq., P.C. (See June 19, 2012 Letter, Ex. C to 

Mot. to Dismiss [Docket Item 12-2].) 

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procedure to request a modification of the bankruptcy 

stay. 

(April 17, 2013 Letter, Ex. C to Mot. to Dismiss.) The final 

letter from Mr. Mallon to Mr. Klamo is dated July 1, 2013, 

stating that Defendant had not received a response to their 

April 17, 2013 letter, and requesting that Mr. Klamo provide 

Defendant with an update as to the status of Plaintiffs’ attempt 

to modify the bankruptcy stay. (July 1, 2013 Letter, Ex. C to 

Mot. to Dismiss.) Mr. Klamo did not appear to respond to either 

the April 17th or July 1st letter. 

6. Defendants filed the present motion to dismiss for 

failure to prosecute on January 30, 2015, which was served 

electronically upon Plaintiffs’ counsel, Mr. Klamo. (Cert. of 

Mailing, Mot. to Dismiss [Docket Item 12-4].) No opposition has 

been filed to date. 

7. Failure to prosecute an action may warrant dismissal 

under Fed. R. Civ. P. 41(b), which in pertinent part, provides: 

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. Unless the court in its order for 

dismissal otherwise specifies, a dismissal under this 

subdivision . . . operates as an adjudication on the 

merits. 

8. Courts in this district consider six factors when 

determining whether or not to dismiss under Rule 41(b): (1) the 

extent of the party's personal responsibility; (2) the prejudice 

to the adversary caused by the failure to meet scheduling orders 

and respond to discovery; (3) a history of dilatoriness; (4) 

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whether the conduct of the party or the attorney was willful or 

in bad faith; (5) the effectiveness of sanctions other than 

dismissal; and (6) the meritoriousness of the claim or defense. 

Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002) (citing 

Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d 

Cir. 1984)). “While the appropriateness of dismissal is not 

contingent upon the satisfaction of all six factors in a given 

case, ‘the resolution of any doubts [must be] in favor of 

adjudication on the merits.’” Bowers v. National Collegiate 

Athletic Ass'n, 564 F. Supp. 2d 322, 334 (D.N.J. 2008) (quoting 

United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 

162 (3d Cir. 2003)). 

9. The failure of Plaintiffs’ counsel to take advantage 

of the several opportunities he has had to pursue Plaintiffs’ 

claims weighs in favor of dismissal. The case was stayed in 

December 2011, and although Mr. Klamo’s letter indicated that he 

initially spoke to counsel for Defendant by phone in June 2012 

about the procedure for lifting or modifying the bankruptcy 

stay, subsequent letters from Defendant’s counsel, Mr. Mallon, 

suggest that Mr. Klamo did not follow up, despite several 

letters from Mr. Mallon asking for an update on whether 

Plaintiffs were still intending to modify the stay. The April 

17, 2013 letter indicates that at some point, Defendant’s 

bankruptcy counsel provided Mr. Klamo with specific instructions 

on the procedure for requesting a stay modification, but Mr. 

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Klamo appeared to have ignored this letter as well as the 

subsequent one, and has never moved to lift the stay put in 

place more than three and a half years ago. It appears that Mr. 

Klamo’s last communication to defense counsel was a little over 

three years ago. According to Defendant, Plaintiffs have given 

no indication since then that they still intend to modify the 

stay in order to pursue a recovery against the proceeds of the 

insurance policy, as they suggested they would. Thus, the 

continued failure to prosecute this case lies solely with 

Plaintiff’s counsel, and the first and third factors weigh in 

favor of dismissal. 

10. Plaintiffs have also ignored a filing deadline in this 

case. Defendant filed its motion to dismiss on January 30, 2015, 

which was duly served upon Mr. Klamo. A response to Defendant’s 

motion was due on February 17, 2015. Mr. Klamo, who continues to 

be listed as counsel of record, never filed an opposition to the 

motion, nor has he ever sought an extension of time to respond. 

Plaintiffs have now ignored their responsibility in this case 

for five months. Because nothing before the Court indicates that 

Plaintiffs are unable to respond, the inference of Plaintiffs’ 

willfulness in failing to meet this obligation is inescapable. 

See Local Union No. 98 Int’l Bhd. of Elec. Workers v. E. Elec. 

Corp. of N.J., 2009 WL 3075358, at *3 (D.N.J. Sept. 25, 2009) 

(finding that defendants’ failure to respond to a complaint for 

one year constituted “blatant, or at a minimum, reckless 

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disregard of the rules” and constituted behavior that was 

willful and in bad faith). Continuing to adjourn this action 

would also prejudice Defendant, who has already waited three 

years for Plaintiffs to modify the stay and resolve this case.

11. Although Plaintiffs’ claims appear to be facially 

meritorious,3 Plaintiffs’ consistent failure to respond to 

 

3 Plaintiff Alba Acevedo asserts that she was severely injured 

while on board an American Airlines flight due to the negligence 

of Defendant’s employees in keeping the aircraft equipment in 

safe condition and failing to warn of malfunctioning equipment. 

Among other things, Defendant asserts that Plaintiffs’ claims 

are barred by the statute of limitations and the Warsaw 

Convention. New Jersey provides a two-year statute of 

limitations for a negligence action for injury to a person, see 

N.J.S.A. 2A:14-2, and Plaintiffs’ Complaint, filed on June 30, 

2011, for an injury that Plaintiffs allege occurred on June 30, 

2009, therefore appears on its face to be timely. Plaintiffs’ 

claims also appear to be permitted under the Warsaw Convention. 

The liability of an airline to its passengers is delineated in 

Article 17 of the Warsaw Convention, which states, 

The carrier shall be liable for damage sustained in the 

event of the death or wounding of a passenger or any 

other bodily injury suffered by a passenger, if the 

accident which caused the damage so sustained took place 

on board the aircraft or in the course of any of the 

operations of embarking or disembarking. 

DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1196 (3d 

Cir. 1978). Plaintiff has alleged that she suffered severe 

injuries while on board an American Airlines flight flying into 

the Philadelphia International Airport; and that her injuries 

were due a malfunction of equipment in the aircraft. (See Compl. 

¶ 11 (“Defendant’s employees, attendants, co-pilots and/or 

pilots failed to warn plaintiff of any malfunction of equipment 

in the aircraft.”)). Thus, the allegations on their face 

sufficiently allege that Plaintiff’s injuries were due to an 

accident on board an aircraft carrier, placing it under Article 

17. See Warshaw v. Trans World Airlines, Inc., 442 F. Supp. 400 

(E.D. Pa. 1977) (holding that plaintiff was barred from recovery 

under the Warsaw Convention because he failed to establish that 

the cabin repressurization was an “accident,” since the evidence 

did not “establish[] abnormality or malfunction in the operation 

of the aircraft.”). 

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Defendant’s letters, failure to take any action to modify the 

bankruptcy stay for over three years, failure to respond to 

Defendant’s motion to dismiss, and indeed, failure to reopen the 

case or file anything at all in three and a half years, weigh 

heavily in favor of dismissal under Rule 41(b). It is sufficient 

to dismiss for failure to prosecute if plaintiff “does nothing, 

knowing that until something is done there will be no trial.” 

Bendix v. Aviation Corp. v. Glass, 32 F.R.D. 375, 377 (E.D. Pa. 

1962), aff’d, 314 F.2d 944, 944 (3d Cir. 1963); see also 

Villanueva v. United Parcel Serv., Inc., 2013 WL 1844769, at *2 

(D.N.J. Mar. 26, 2013) (dismissing for failure to prosecute 

because plaintiff failed to take any action in almost three 

years to prosecute his claims and failed to respond to Order to 

Show Cause); Adams v. Trustees of N.J. Brwery Empl. Pension 

Trust Fund, 29 F.3d 836, 875 (3d Cir. 1994) (“We agree the 

failure to prosecute for more than four years amounts to a 

history of dilatoriness” and “could constitute grounds for 

dismissal under Rule 41(b).”). Such is the case here.

12. Having carefully reviewed these factors, the Court 

concludes that they weigh in favor of dismissal. Nevertheless, 

 

 As Plaintiffs’ Complaint is devoid of any detail about the 

specific manner in which Alba Acevedo was injured, the Court 

does not have sufficient information to evaluate the merits of 

certain other defenses raised in Defendant’s Answer, such as 

that Plaintiffs’ claims are barred by the terms and conditions 

of the contract of carriage and ticket limitations; that the 

accident was the result of the negligence of third parties over 

whom American had no control; and that the negligence of 

Plaintiff was greater than any negligence of Defendant. 

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the Court, considering the availability of alternative sanctions 

to dismissal, will permit Plaintiffs one last opportunity to 

respond to Defendant’s motion. Plaintiffs’ counsel shall have 

fifteen (15) days from the entry of this Order to oppose 

Defendant’s dismissal motion. Should counsel fail to comply, the 

Court will deem Defendant’s motion unopposed and dismiss the 

Complaint with prejudice under Rule 41(b) without an additional 

merits analysis. An accompanying Order to Show Cause will be 

entered. 

 

 July 23, 2015 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

 Chief U.S. District Judge

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