Days Inn Worldwide, Inc. v. Shaikh

249 F.R.D. 472, 2008 U.S. Dist. LEXIS 21036, 2008 WL 728924
CourtDistrict Court, D. New Jersey
DecidedMarch 18, 2008
DocketCivil Action No. 07-157 (SDW)
StatusPublished
Cited by3 cases

This text of 249 F.R.D. 472 (Days Inn Worldwide, Inc. v. Shaikh) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Days Inn Worldwide, Inc. v. Shaikh, 249 F.R.D. 472, 2008 U.S. Dist. LEXIS 21036, 2008 WL 728924 (D.N.J. 2008).

Opinion

ORDER

SUSAN D. WIGENTON, District Judge.

ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

This matter comes before the Court on the Report and Recommendation of United States Magistrate Judge Madeline C. Arleo, filed March 6, 2008. The Court having received no objections to the Report and Recommendation; and the Court having reviewed the Report and Recommendation, as well as the other documents on file on this matter; and for good cause shown;

It is on this 17th day of March 2008, ORDERED that the Report and Recommendation of Magistrate Judge Arleo, filed March 6, 2008, is hereby ADOPTED as the facts and conclusions of law of this Court.

As Defendants’ Answer and Counterclaims are hereby stricken, Plaintiff may proceed to request the entry of default, and subsequently, default judgment against Defendants.

REPORT AND RECOMMENDATION

MADELINE COX ARLEO, United States Magistrate Judge.

BACKGROUND

On January 11, 2007, plaintiff, Days Inns Worldwide, Inc. (“plaintiff’), filed the Complaint against defendants, Hanif Shaikh and Nasir Shaikh, a California Partnership (“Shaikh Partnership”), as well as Hanif Shaikh and Nasir Shaikh as individuals (collectively, “defendants”). On April 18, 2007, plaintiff requested a Clerk’s entry of default against defendants for their failure to plead or otherwise respond to the complaint. On the following day, the Clerk’s Office entered default against defendants.

On June 14, 2007, defendants filed an Answer to the Complaint and Counterclaims.1 On July 10, 2007, plaintiff filed an Answer to defendants’ Counterclaims. On August 21, 2007, this Court entered an Order, scheduling a mandatory in person initial conference for Wednesday, October 10, 2007 at 12:30. The Order directed the parties to timely comply with their initial disclosure and discovery obligations, pursuant to Fed.R.Civ.P. 26. The Order highlighted that failure to attend the conference would result in sanctions.

On October 10, 2007, only plaintiffs counsel appeared at the conference. No party or counsel appeared on behalf of defendants. [474]*474On October 12, 2007, this Court issued an Order to Show Cause why monetary/reprimand sanctions should not be imposed pursuant to Fed.R.Civ.P. 16(f), arising out of the failure of defense counsel, John T. Doyle, Esq., to attend the Court ordered October 10, 2007, conference. The Order to Show Cause was returnable October 29, 2007 at 11:30 a.m. Mr. Doyle was directed to file any written submissions with the Court by October 22, 2007.

On October 19, 2007, Mr. Doyle filed a response to the Court’s Order to Show Cause, explaining he was unaware of the October 10, 2007, conference. Moreover, in August 2007, Mr. Doyle apparently advised Jeffrey Goldstein, Esq., out-of-state counsel for defendants, that Mr. Doyle could no longer serve as local counsel for defendants. Mr. Doyle stated his belief that Mr. Goldstein would be taking the necessary steps to relieve Mr. Doyle from his role as local counsel.

On October 29, 2007, Mr. Doyle appeared before the Court to answer the Court’s Order to Show Cause. At the hearing, Mr. Doyle expressed his intent to file a motion to be relieved as counsel for defendants. The Court granted him leave to timely file his motion. On November 2, 2007, Mr. Doyle filed his unopposed motion to be relieved as counsel, which this Court granted by Order on November 15, 2007. The Court further directed Mr. Doyle to provide his clients with copies of the Order, and directed new counsel to enter an appearance on behalf of defendants by December 10, 2007. If new counsel was not secured by that date defendants would be deemed to be proceeding on a pro se basis. The Order further directed all parties to appear before the Court for a status conference on Monday, December 10, 2007 at 12:00 noon.

On December 7, 2007, the Court received Mr. Goldstein’s letter of December 7, 2007, indicating that he represents defendants. However, he explained that defendants have been unable to secure new local counsel. As such, Mr. Goldstein requested that the December 10, 2007, status conference be adjourned until new local counsel was retained. Alternatively, he sought leave to appear before the Court on a pro hac basis without having any local counsel. The Court denied both requests and ordered defendants to appear at the December 10 conference.

On December 10, 2007, only counsel for plaintiffs appeared before the Court. On December 22, 2007, the Court issued a second Order to Show Cause why monetary/reprimand sanctions should not be imposed pursuant to Fed.R.Civ.P. 16(f), arising out of defendants’ failure to attend the Court ordered December 10, 2007 conference. The Order to Show Cause was returnable January 15, 2008 at 11:30 a.m. Defendants Hanif Shaikh and Nasir Shaikh were directed to file any written submissions with the Court by January 8, 2008.

On January 11, 2008, the Court received a letter from Frank Konecny, Esq., dated January 11, 2008, indicating that he represents individual defendants Henry and Nasir Shaikh. Mr. Konecny requested a 30-day extension of the Order to Show Cause Hearing to enable his clients to “obtain representation.” By Order dated January 14, 2008, the Court advised Mr. Konecny that the undersigned could not accept his request on behalf of the individual defendants because, as stated in his letter, he is not licensed to practice in the State of New Jersey. The Order directed defendants to appear before the Court on January 15, 2008, and emphasized that failure to appear will result in sanctions, up to and including entry of default.

On January 15, 2008, only plaintiffs counsel appeared at the Conference. No party or counsel appeared on behalf of defendants.

DISCUSSION

Defendants’ failure to comply with the Orders of this Court require this Court to determine the appropriate sanctions to impose. In Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984), the Third Circuit Court of Appeals set forth six factors which must be considered in determining whether to dismiss a plaintiffs action or strike a defendant’s answer. Poulis, 747 F.2d at 868. The Poulis factors are: “(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 dilato[475]*475riness; (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.” Id. at 868. The Court is required to balance each factor in its analysis. Id.

1. The Extent of Defendants’ Personal Responsibility

Following the Court’s Order relieving Mr. Doyle as defense counsel, the Court essentially afforded defendants sixty days to retain new counsel or appear before the Court on a pro se basis.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
249 F.R.D. 472, 2008 U.S. Dist. LEXIS 21036, 2008 WL 728924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/days-inn-worldwide-inc-v-shaikh-njd-2008.