for the Order to Show Cause Hearing as required by the Courts’ October 16, 2013 Order is
especially telling because the Order specifically required Plaintiffs to identify reasons why their
claim should not be dismissed for failure to prosecute. Plaintiffs’ inaction in this regard further
supports dismissal of their claim.

‘4, Willfulness or Bad Faith. The Court will not conclude that Plaintiffs have proceeded
in bad faith, However, Plaintiffs’ conduct has been willful. Plaintiffs have been willfully
unresponsive to Court proceedings and to Court Orders. These circumstances, when taken as a
whole, suggest that Plaintiffs have abandoned their case and further support dismissal as the
appropriate remedy.

5. Effectiveness of Alternative Sanctions. The record of unresponsiveness suggests
that alternative sanctions would be futile. Despite numerous chances, and despite this Court’s
warning of the consequences of their continued inaction, Plaintiffs have failed to participate in
and prosecute their case. On these facts, no lesser sanction would be effective. See Joyce v.
Continental Airlines, Inc., 2011 WL 2610098 (D.N.J.).

6. Meritoriousness of the Claims. The Court is unable to determine the
meritoriousness of Plaintiffs’ claim.

“Ta sum, Plaintiffs have ignored a Court Order to make an appearance to show cause why
their case should not be dismissed which further demonstrates the pattern of non-compliance and
dilatoriness. Plaintiffs’ failure in this regard establishes Plaintiffs’ failure to adequately

prosecute this matter which they initiated against Defendants.

CONCLUSION

The Court having considered this matter pursuant to Fed.R.Civ.P. 78 and having given


identified six factors for courts to balance when deciding whether to impose an involuntary order
of dismissal. The Poulis factors are:

(1) The extent of the party’s personal responsibility; (2) the prejudice to the

adversary caused by the plaintiff's conduct; (3) the history of dilatoriness; (4)

whether the conduct of the party or the 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.

, a at 868. No single Poulis factor is determinative and dismissal may be appropriate
even if some of the factors are not met. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.
1992); Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Ifa court finds dismissal appropriate
under Poulis, it may dismiss an action sua sponte, pursuant to its inherent powers and Federal
Rule of Civil Procedure 41(b). See Iseley v. Bitner, 216 Fed App’x 252, 254-55 (3d Cir. 2007)
(citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)).

1. Plaintiff's Personal Responsibility. In this case it appears that Plaintiffs are solely
responsible for their failure to comply with Court Orders and to prosecute their case. Plaintiffs
have failed to retain new counsel or declare themselves as proceeding pro se and in addition,
have personally failed to meet Court imposed deadlines and/or submit paperwork.

2 Prejudice to Defendants. Plaintiffs’ refusal to participate in advancing their case and
to comply with Court Orders has caused manifest injustice to Defendants. Plaintiffs initiated this
action and have done nothing since counsel was relieved. Plaintiffs’ actions, or lack thereof,
support dismissal. See, e.g., Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984).

; 3. History of Dilatoriness. Plaintiffs have a history of dilatoriness. For example,
Plaintiffs failed to indicate to this Court whether new counsel would be retained or if they would

be proceeding pro se. Furthermore, Plaintiffs’ failure to submit a position paper and to appear


consideration of the Poulis factors;

IT IS on this 26" day of November, 2013,

RECOMMENDED that Plaintiffs’ Complaint be DISMISSED WITH PREJUDICE
pursuant to Fed.R.Civ.P. 41(b).

iS Parties are advised that they may file an objection within 14 days of the date of this Order

pursuant to Fed.R.Civ.P. 72(b)(2).

ORDERED that the Clerk of the Court mail a copy of this Report & Recommendation by
certified mail to Mr. and Mrs. Rodriguez at the following address:

Eliz B. and Felipe Rodriguez
6560 Swissco Dr.

Apt. #328
Orlando, FL 32822

s/Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI

UNITED STATES MAGISTRATE JUDGE


UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
ELIZ B. & FELIPE RODRIGUEZ, : Civil Action No. 11-3892 (PGS)
Plaintiffs,
v. : REPORT & RECOMMENDATION

VINUTHA RAJASEKHARAIAH, and
VINUTHA RAJASEKHARAIAH a/k/a
VINUTHA RAJ; JERSEY MEDICAL

ASSOCIATES, INC., THE UNITED

NOTICE OF REMOVAL

STATES OF AMERICA; JOHN DOE,

M.D. I-V; JANE DOE NURSES I-V; RECEIVED
JOHN DOE MEDICAL FACILITY

PERSONNEL I-V; JOHN DOE NOV 26 2013

MEDICAL FACILITIES I-V,

AT 8:30
Defendants. Vwi LIAM T. WALSH CLERK

BONGIOVANNI, Magistrate Judge

This matter having been opened by the Court sua sponte based on Plaintiffs’ failure to
comply with Court Orders and prosecute their case. For the reasons that follow, it is respectfully
recommended that the case be DISMISSED WITH PREJUDICE.

BACKGROUND AND PROCEDURAL HISTORY

On June 6, 2011, Plaintiffs Eliz B. Rodriguez and Felipe Rodriguez (“Plaintiffs”) filed a
Complaint in the Superior Court of New Jersey, Law Division, Middlesex County against
Vinutha Rajasekharaiah, Jersey Medical Associates, Inc., The United States of America,

John Doe, M.D I-V, Jane Doe Nurses I-V, John Doe Medical Facility Personnel I-V and John
Doe Medical Facilities I-V (“Defendants”) demanding judgment, damages, fees, interest and

costs of suit, for injuries they claim to have sustained as the result of alleged medical malpractice

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for failure to diagnose breast cancer. The case was subsequently removed to the United States
District Court on July 6, 2011 [Docket Entry No. 1] and discovery proceeded.

On May 8, 2013 Plaintiffs’ attomey submitted a letter to the Court requesting to
withdraw as Plaintiffs’ counsel. While Counsel indicated that Plaintiffs had been advised of
Counsel’s request to withdraw and were copied on Counsel’s letter to the Court, the Court
wanted to afford Plaintiffs the opportunity to object to Counsel’s request if they so desired. Asa
result, on May 20, 2013, the Court entered a Letter Order directing Plaintiffs to inform the Court
in writing no later than June 3, 2013 as to whether they had any objection to Counsel’s request.
[Docket Entry No. 14]. The Court did not receive any response from Plaintiffs by June 3, 2013
and was concerned that they may not have received a copy of the Court’s May 20, 2013 Letter
Order in time to submit a timely response. As such, the Court entered a second Letter Order
dated June 11, 2013 [Docket Entry No. 16], extending the date for Plaintiffs to object to June 24,
2013. The Court also informed Plaintiffs in the June 11, 2013 Letter Order that “failure to
comply with the terms of this order may result in imposition of sanctions including potential
dismissal of their claims.” The June 11, 2013 Letter Order was sent directly to Plaintiffs by both
regular and certified mail. The certified mail was returned as undeliverable. [Docket Entry No.
17]. However, the Letter Order sent by regular mail has not been returned. Further, Counsel
confirmed that the address used by the Court on both mailings was accurate and that Plaintiffs
had received notice of the Court’s Orders.

The Court accepted Plaintiffs silence as consent to Counsel’s request and permitted
Counsel to withdraw. In a July 10, 2013 Letter Order, Plaintiffs were given 30 days to retain

new counsel or be deemed to be proceeding pro se. Plaintiffs were also directed to inform the


Court in writing no later than August 12, 2013 as to whether they intended to continue to
prosecute this matter. [Docket Entry No. 18]. It came to the Court’s attention that Plaintiffs may
not have received a copy of the Court’s Letter Order because Plaintiffs’ apartment number was
not included in Plaintiffs’ address. As a result, the Court entered another Letter Order on
September 4, 2013 [Docket Entry No. 21]. The Court extended the deadline for retaining new
counsel to September 27, 2013 and the deadline to inform the Court if they intend to prosecute
this matter to October 4, 2013. The Court warned Plaintiffs that if it did not receive a response
by that deadline, the Court would recommend that this matter be dismissed with prejudice. The
September 4, 2013 Letter Order was signed for by Felipe Rodriguez. [Docket Entry No. 22]. An
Order to Show Cause was then sent on October 16, 2013. [Docket Entry No. 24]. Plaintiffs
were ordered to submit an explanation for their failure to respond to the Court no later than
November 14, 2013 and to appear in person on November 21, 2013 to show cause why this
matter should not be dismissed for failure to comply with the Courts Orders or to prosecute their
case. This Order was signed for by Jacob Soto’, Plaintiffs’ 19 year old son. [Docket Entry No.
267 Plaintiffs did not contact the Court in any manner or appear for the Order to show Cause
Hearing.
ANALYSIS

The Federal Rules of Civil Procedure authorize courts to impose sanctions for failure to
respond to court orders and for failure to prosecute a case. See Fed.R.Civ.P. 37(b)(2), 41(b). In
both instances, dismissal may be an appropriate penalty. Jd.

In Poulis v. State Farm Casualty Co., 747 F.2d at 863 (3d Cir. 1984) the Third Circuit

" See attached letter from Defendant outlining excerpt from Plaintiff Eliz B. Rodriguez’s deposition in which she
identifies Soto as her son.
? Jacob Soto also signed for an Order to Show Cause which was sent on October 9, 2013 [Docket Entry No. 23] and
subsequently amended by the October 16, 2013 Order [Docket Entry No. 24]

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