United States District Court, D. Delaware
DIDEM GUNEY ALSOY AND MEHMET ALI ALSOY AND BONAPORT LLC, Plaintiffs,
CICEKSEPETI INTERNET HIZMETLERI, ANONIM SIRKETI, Defendant.
REPORT AND RECOMMENDATION
R. FALLON, UNITED STATES MAGISTRATE JUDGE.
before the court in this trademark action is the motion to
dismiss for lack of prosecution filed by defendant
Ciceksepeti Internet Hizmetleri Anonim Sirketi
("defendant"). (D.I. 69) For the following reasons,
I recommend that the court grant defendant's motion to
dismiss with prejudice.
Didem Guney Alsoy, Mehmet Ali Alsoy, and Bonaport LLC
("plaintiffs") filed this trademark infringement
action on February 20, 2015. (D.I. 1) Thereafter, plaintiffs
experienced difficulty maintaining counsel, and three
separate sets of counsel withdrew from representing
plaintiffs. (D.I. 18; D.I. 31; D.I. 66) On October 15, 2018,
the court entered an order granting plaintiffs thirty days to
retain new counsel. (D.I. 66) The order further provided
that, if plaintiffs failed to retain counsel on or before
November 14, 2018, they must show cause why the case should
not be dismissed by December 14, 2018. (Id.) The
court's correspondence to plaintiffs, which was sent to
plaintiffs' last known address as provided by
plaintiffs' former counsel, was returned
undeliverable. (D.I. 67)
to Federal Rule of Civil Procedure 41(b), a court may dismiss
an action for "fail[ure] to prosecute or to comply with
[the Federal Rules of Civil Procedure] or a court
order." Fed.R.Civ.P. 41(b). This determination is within
the district court's discretion. Link v. Wabash R.R.
Co., 370 U.S. 626, 630-32 (1962); Livera v. First
Nat'l Bank of New Jersey, 879 F.2d 1186, 1194 (3d
Cir. 1989). In considering whether dismissal is appropriate,
courts within the Third Circuit use the following six-factor
(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); see also Livera, 879 F.2d
at 1194. Because dismissals with prejudice are a drastic
sanction, the court must "have a full understanding of
the surrounding facts and circumstances pertinent to the
Poulis factors before it undertakes its
analysis." Briscoe v. Klaus, 538 F.3d 252, 258
(3d Cir. 2008). The Local Rules further provide that,
"in each case pending wherein no action has been taken
for a period of 3 months, the Court may, on its motion or
upon application of any party, and after reasonable notice
and opportunity to be heard, enter an order dismissing such
case unless good reason for the inaction is given." D.
Del. LR 41.1.
is well-established that a corporation or other organization
must be represented by a licensed attorney. See Dougherty
v. Snyder, 469 Fed.Appx. 71, 72 (3d Cir. 2012).
recommend that the court dismiss the instant action with
prejudice due to plaintiffs' failure to retain new
counsel and failure to prosecute the instant action.
Plaintiffs last participated in this action by filing a joint
status report on April 2, 2018. (D.I. 58) The record reflects
that plaintiffs did not communicate with or pay their most
recent counsel for a period of more than six months. (D.I.
61) Plaintiffs have been the subject of no less than three
show cause orders since the filing of the present lawsuit,
and have failed to respond to the most recent of those
orders, which cautioned that failure to respond would result
in the dismissal of the case. (D.I. 5; D.I. 22; D.I. 66)
these facts in light of the Poulis factors, I
recommend that the court dismiss the action with prejudice
due to plaintiffs' history of dilatoriness. In addition,
plaintiffs bear personal responsibility for failing to
maintain adequate communication with their own counsel and
neglecting to provide the court and counsel with accurate
contact information. Continuing the action would be
prejudicial to defendant, who unilaterally filed the most
recent status report due to plaintiffs' nonparticipation
in the present action. (D.I. 62) Plaintiffs' apparent
abandonment of the present litigation further confirms that
sanctions other than dismissal would not be effective in this
instance. On balance, the Poulis factors weigh in
favor of dismissal of the action with prejudice.