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NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY

 

 : 

SANDY FERNANDEZ, YORDANO : 

BULA, ANGEL COTTY, ERICK : 

BULA, and MICHAEL ANTONIO, : 

 : 

 Plaintiffs, : Civil Action No.: 11-3129 (ES) 

 : 

 v. : MEMORANDUM OPINION & ORDER 

 : 

THE BROWNSTONE HOUSE INC., : 

ALBERT MANZO, and THOMAS : 

MANZO, : 

 : 

 Defendants. : 

 : 

SALAS, DISTRICT JUDGE

 This matter comes before the Court on the motion of defendants Brownstone House Inc., 

Albert Manzo, and Thomas Manzo (collectively, “Defendants”) to dismiss plaintiff Michael 

Antonio’s complaint, (D.E. No. 48), and the Court having considered Defendants’ submissions 

and the record in this action, and it appearing that: 

1. Plaintiffs Sandy Fernandez (“Fernandez”), Yordana Bula, Angel Cotty (“Cotty”), Erick 

Bula, and Michael Antonio (“Antonio”) (collectively, “Plaintiffs”) initially alleged that 

Defendants violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (D.E. No. 31). 

But Fernandez, Yordana Bula, Cotty, and Erick Bula subsequently withdrew their claims 

against Defendants with prejudice. (D.E. No. 51). Thus, only Antonio’s claims remain 

against Defendants. 

2. Antonio became a pro se litigant during the course of this action and failed to appear at a 

Court-ordered hearing. (D.E. Nos. 44 & 46). Specifically, Antonio stopped 
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communicating with his attorney in August 2012, prompting the Court to relieve the 

attorney from serving as Antonio’s counsel. (D.E. Nos. 36 & 46). Antonio has also 

failed to produce discovery. (D.E. No. 48-2 ¶ 5). 

3. Defendants argue that Antonio’s claims should be dismissed under Federal Rule of Civil 

Procedure 37(d) as a sanction for failing to serve answers to interrogatories and for 

failing to prosecute this action. (D.E. No. 48-1 at 1). Antonio has not opposed 

Defendants’ motion. Generally, the Court must consider the following six factors, 

commonly referred to as the Poulis factors, before dismissing an action under these 

circumstances: 

1) the extent of the nonmoving party’s personal responsibility; 2) 

the prejudice to the moving party caused by the failure to meet 

scheduling orders and respond to discovery; 3) a history of 

dilatoriness; 4) whether the conduct of the party or attorney was 

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

dismissal, which entails an analysis of alternative sanctions; and 6) 

the meritoriousness of the claim or defense. 

Clarke v. Nicholson, 153 F. App’x 69, 72 (3d Cir. 2005) (citing Poulis v. State Farm Fire 

and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)); see also James Indus., Inc. v. Lexar 

Corp., 60 F. App’x 385, 388 (3d Cir. 2003) (applying Poulis factors when affirming 

dismissal of claims under Federal Rule of Civil Procedure 37). But “not all of the Poulis

factors need to be satisfied in order to dismiss a complaint.” James Indus., 60 F. App’x 

at 388 (quotations omitted). 

4. Here, analysis of the Poulis factors supports dismissal of Antonio’s claims. Antonio is 

responsible for failing to provide discovery. To be sure, his former attorney indicated 

that Antonio received Defendants’ interrogatories. (D.E. No. 36 at 4-5). Yet, Antonio 

has not provided responses thereto. (D.E. No. 48-2 ¶ 5). And Antonio’s failure to 
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cooperate with his attorney ultimately led to his attorney withdrawing representation. 

(D.E. No. 46). Although required to do so, Antonio has also failed to appear before the 

Court for a hearing relating to his prosecution of this action. (See id.). There seems to be 

no indication from Antonio that he intends to exchange discovery or prosecute this 

action. In fact, Antonio has not opposed Defendants’ motion to dismiss even though it 

was properly served upon him. (D.E. No. 48-4). Without discovery, Defendants are 

unable to adequately defend this matter, and Defendants have already reached settlements 

with every other former plaintiff in this matter. (D.E. No. 51; D.E. No. 48-1 at 2). The 

Court finds that, under the facts of this case, no alternative sanction but dismissal is 

appropriate. James Indus., 60 F. App’x at 388-89 (affirming dismissal under Federal 

Rule of Civil Procedure 37 and explaining that, “[g]iven [the party’s] repeated failures to 

comply with discovery deadlines, obey court orders, or cooperate with counsel, we 

decline to conclude that the District Court erred by not specifically evaluating the merits 

of [the party’s claims], particularly given that it considered the other five factors”). 

Accordingly, the time for filing opposition having expired, and having considered 

Defendants’ submissions and the record in this action, and pursuant to Federal Rule of Civil 

Procedure 78, 

IT IS on this 4th day of February 2014, hereby 

ORDERED that Defendants’ motion, (D.E. No. 48), is GRANTED; and it is further 

ORDERED that Plaintiff Michael Antonio’s claims are DISMISSED in their entirety; and it 

is further 
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ORDERED that the Clerk of Court shall CLOSE this case. 

/s/ Esther Salas 

 Esther Salas, U.S.D.J.