Michael Ivanciu, Esq. 

Law Offices of Michael Ivanciu, LLC

788 Shrewsbury Avenue, Suite 2191

Tinton Falls, NJ 07724

Counsel for Plaintiff

Christopher W. Hager, Esq.

Niedweske Barber Hager, LLC

98 Washington Street

Morristown, NJ 07960

Counsel for Defendant

LETTER OPINION FILED WITH THE CLERK OF THE COURT 

Re: Sync Labs LLC v. Fusion-Manufacturing

Civil Action No. 11-3671 (SDW) (LDW)

Counsel: 

Before this Court is Plaintiff Codrut Radu Radulescu’s (“Radulescu” or “Plaintiff”) Motion 

to Reopen and Defendants Fusion-Manufacturing and Michael Ferchak’s (collectively, 

“Defendants”) Cross-Motion to Dismiss for Failure to Prosecute. This Court having considered 

the parties’ submissions, having reached its decision without oral argument pursuant to Federal 

Rule of Civil Procedure 78, for the reasons discussed below, DENIES Plaintiff’s motion and 

GRANTS Defendants’ Cross-Motion.

DISCUSSION

A.

This Court assumes the parties’ familiarity with the extensive factual and procedural 

history of this case and addresses only those facts necessary for resolution of the instant motions. 

On May 31, 2011, Radulescu and Sync Labs LLC (“Sync”) filed suit in against Defendants in 

New Jersey Superior Court. (D.E. 1.) Defendants removed to this Court on June 27, 2011. (Id.) 

On January 27, 2012, counsel for Radulescu and Sync moved to withdraw because Radulescu and 

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHAMBERS OF

SUSAN D. WIGENTON

UNITED STATES DISTRICT JUDGE

August 15, 2019

MARTIN LUTHER KING COURTHOUSE

50 WALNUT ST.

NEWARK, NJ 07101

973-645-5903
2

Sync “failed to abide by several requirements under the retainer agreement . . ..” (D.E. 21-1 at 2.) 

That motion was granted, (D.E. 22), and Radulescu, an attorney, subsequently filed his appearance 

as Plaintiffs’ counsel. (D.E. 26.) On June 7, 2012, the Court disqualified Radulescu from

representing Sync, and granted Sync thirty days to retain new counsel. (D.E. 37, 60, 61.) When 

Sync failed to do so, the Court dismissed it from this action. (D.E. 130, 131.) Dispositive motion 

practice followed, with some but not all claims being dismissed. Radulescu appeared pro se and 

actively participated in all aspects of the litigation. (See D.E. 84, 102, 103, 104, 116, 133, 138.) 

He was also repeatedly criticized by the Court and Magistrate Judge Waldor for his conduct. (See 

D.E. 129 at 7; 154; 179-1 ¶ 29; 207 at 17-18.)1

On April 20, 2017, Michael Ivanciu appeared on behalf of Radulescu, and moved to 

remand. (D.E. 209, 210.) Judge Walls denied the motion, and Radulescu filed an interlocutory 

appeal, which he then withdrew on August 9, 2017. (D.E. 213, 214, 215, 216.) The case remained 

dormant for nearly two years. On April 2, 2019, the Court set an administrative termination 

deadline of June 3, 2019. (D.E. 217.) On June 3, 2019, Radulescu moved to reopen, (D.E. 218), 

and Defendants cross-moved to dismiss for lack of prosecution, (D.E. 220). 

B.

“Civil cases, other than bankruptcy matters, which have been pending in the Court for 

more than 120 days without any proceedings having been taken therein” may be dismissed 

pursuant to Local Civil Rule 41.1(a). The Court may do so “(1) on its own motion, or (2) on notice 

from the Clerk to all parties who have appeared, unless good cause is shown with the filing of an 

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

unrepresented party.” Id. In determining whether dismissal for failure to prosecute is appropriate, 

courts consider: 

(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) 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 or defense.

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984); accord Collins v. Comm’r 

of Soc. Sec., Civ. No. 15-8352, 2017 WL 1137444, at *1 (D.N.J. Mar. 27, 2017). Examples of 

prejudice include “the irretrievable loss of evidence, the inevitable dimming of witnesses’ 

memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing 

party.” Adams v. Tr. of the N.J. Brewery Emp. Pension Tr., 29 F.3d 863, 874 (3d Cir. 1994).

 1 This matter was previously assigned to Judge William H. Walls, who recently passed away. The case was 

reassigned to this Court on August 5, 2019. (D.E. 222.) 
3

Here, the Poulis factors weigh in favor of dismissal. Despite Plaintiff’s counsel’s attempts 

to take the blame for the delay in this case, (see generally D.E. 218-1), Plaintiff represented himself 

in this action for several years, and is still registered on ECF to receive all case notices. If Mr. 

Ivanciu was too busy take appropriate steps to protect his client’s interests, Plaintiff should have 

found counsel with the resources to do so. See, e.g., Nichols v. Braceiner, Civ. No. 04-2078, 2007 

WL 432976, at *2 (D.N.J. Jan. 30, 2007). Further, although there is no history of dilatoriness, 

Defendants have been significantly prejudiced, as eight years have passed since this lawsuit was 

filed and the protracted litigation is largely due to Plaintiff’s harassing tactics and failure to act. 

Plaintiff’s prior filing of meritless motions also suggest bad faith and a willingness to allow this 

matter to drag on. Given Plaintiff’s prior conduct and the Court’s prior admonitions, this Court is 

not satisfied that alternative sanctions would be effective. See Titus v. Mercedes Benz of N. Am., 

695 F.2d 746, 750 n.6 (3d Cir. 1982) (identifying alternatives to dismissal such as “a warning, a 

formal reprimand, placing the case at the bottom of the calendar, a fine, the imposition of costs or 

attorney fees or the preclusion of claims or defenses”). Finally, although summary judgment on 

two remaining claims was denied, suggesting those claims have some merit, this factor alone is 

insufficient to support permitting this action to continue. Therefore, this matter shall be 

terminated, and Plaintiff’s motion to reopen will be denied.

2

 

CONCLUSION

For the reasons set forth above, Plaintiff’s Motion to Reopen this matter is DENIED. 

Defendants’ Motion to Dismiss is GRANTED. An appropriate order follows. 

___/s/ Susan D. Wigenton_____

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc: Parties 

Leda D. Wettre, U.S.M.J. 

 2 Federal Rule of Civil Procedure 41 allows a defendant to “move to dismiss the action or any claim against it” if 

“the plaintiff fails to prosecute[.]” Fed. R. Civ. P. 41(b). The standard for dismissal for failure to prosecute is the 

same as for motions to reopen a case. Consequently, for the same reasons the Court denies Plaintiff’s motion to 

reopen the case, it will grant Defendants’ motion to dismiss under Fed. R. Civ. P. 41(b) for failure to prosecute.