Mendy v. Boxrec

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD MENDY, et al.,

Plaintiffs, CIVIL ACTION NO. 1:22-CV-00535

v.

(MEHALCHICK, J.)

BOXREC, et al.,

Defendants.

ORDER

Presently before the Court is the report of Judge Carlson, (Doc. 63), recommending

the Court dismiss for failure to prosecute. (Doc. 63). Neither party filed objections to the

report, and the time within which they could do so has passed.

Where no objection is made to a report and recommendation, the court should, as a

matter of good practice, “satisfy itself that there is no clear error on the face of the record in

order to accept the recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D. Pa.

2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should

give some review to every report and recommendation)). In any event, whether timely

objections are made or not, the district court may accept, not accept, or modify, in whole or

in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1);

Local Rule 72.31.

Since the report correctly states the procedural and factual background of this case, it

will not be repeated herein. (Doc. 63, at 1-4). In sum, Plaintiffs initiated this action pro se in

2022. (Doc. 1). On September 11, 2023, the Court dismissed Plaintiffs’ complaint, but granted

Plaintiffs leave to amend. (Doc. 53). On October 2, 2023, Plaintiffs filed an amended

complaint. (Doc. 56). On October 9, 2023, ABC Defendant filed a motion to strike Plaintiffs’

amended complaint or in the alternative, moved for a more definitive statement pursuant to

Fed. R. Civ. P. 12(e). (Doc. 58). On October 16, 2023, Boxrec Defendants filed a motion to

strike and/or dismiss Plaintiffs’ amended complaint. (Doc. 59). Plaintiffs failed to respond to

the motions despite an order from Judge Carlson, dated February 7, 2024, directing them to

do so. (Doc. 62).

Judge Carlson conducted an extensive analysis to determine whether the case should

be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute

or comply with court orders. The report marches through the well-known factors under Poulis

v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), which guide courts in the

Third Circuit when analyzing a failure to prosecute. Judge Carlson found all of the

six Poulis factors weigh in favor of dismissal. (Doc. 63, at 12). Notably, Judge Carlson found

Plaintiffs appear to have willfully failed to prosecute their claims and follow court orders and

that many of their claims fail on their merits. (Doc. 63, at 12).

Upon review, the Court agrees with the sound reasoning that led Judge Carlson to his

conclusion in his report and discerns no error of law. Accordingly, IT IS HEREBY

ORDERED THAT:

1. The report and recommendation of Judge Carlson (Doc. 63) is ADOPTED IN

ITS ENTIRETY AS THE OPINION OF THE COURT.

2. This case is DISMISSED pursuant to Rule 41(b) of the Federal Rules of Civil

Procedure.

3. ABC Defendant's motion to strike (Doc. 58) and Boxrec Defendants’ motion

to strike (Doc. 59) Plaintiffs’ amended document re DENIED as moot.

4. The Clerk of Court is directed to CLOSE this case.

Dated: April 4, 2024 s/ Karoline Mehalchick

KAROLINE MEHALCHICK