Talon Industries, Llc v. Rolled Metal Products, Inc. et al

MOTION to Dismiss for Lack of Prosecution

D.N.J.July 26, 2016

HARRIS BEACH PLLC One Gateway Center Suite 2500 Newark, NJ 07102 (973) 848-1244 Attorneys for Defendant Rolled Metal Products, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY TALON INDUSTRIES, LLC, d/b/a PROGRESSIVE RUESCH MACHINE CO., LLC, Plaintiff, v. ROLLED METAL PRODUCTS, INC., et al., Defendants. Case No. 2:15-cv-04103 (CCC) (MF) DEFENDANT’S NOTICE OF MOTION TO DISMISS FOR FAILURE TO PROSECUTE Return Date: September 6, 2016 PLEASE TAKE NOTICE that on September 6, 2016 at 9:00 A.M., the undersigned, Kelly E. Jones of Harris Beach PLLC, counsel for Rolled Metal Products, Inc., shall move before the Honorable Judge Claire C. Cecchi, U.S.D.J., U.S. District Court, District of New Jersey, Martin Luther King Building & U.S. Courthouse, 50 Walnut Street, Newark, NJ 07101 for entry of an order pursuant to Federal Rule of Civil Procedure 41(b) for dismissal with prejudice of all claims in this case. PLEASE TAKE FURTHER NOTICE that the undersigned will rely on the attached brief in support of the motion. A proposed form of Order is attached hereto. Case 2:15-cv-04103-CCC-MF Document 22 Filed 07/26/16 Page 1 of 2 PageID: 146 2 Dated: July 26, 2016 Respectfully submitted, /s/ Kelly E. Jones Kelly E. Jones (KEJ-7804) HARRIS BEACH PLLC One Gateway Center Suite 2500 Newark, NJ 07102 (973) 848-1244 (Phone) kjones@harrisbeach.com Of Counsel: Ann G. Schoen (pro hac vice) FROST BROWN TODD LLC 3300 Great American Tower 301 East Fourth Street Cincinnati, OH 45202 (513) 651-6800 (Phone) (513) 651-6981 (Fax) aschoen@fbtlaw.com Attorneys for Defendant Rolled Metal Products, Inc. Case 2:15-cv-04103-CCC-MF Document 22 Filed 07/26/16 Page 2 of 2 PageID: 147 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY TALON INDUSTRIES, LLC, d/b/a PROGRESSIVE RUESCH MACHINE CO., LLC, Plaintiff, v. ROLLED METAL PRODUCTS, INC., et al., Defendants. Case No. 2:15-cv-04103 (CCC) (MF) Return Date: September 6, 2016 DEFENDANT’S BRIEF IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO PROSECUTE Kelly E. Jones HARRIS BEACH PLLC One Gateway Center Suite 2500 Newark, NJ 07102 (973) 848-1244 (Phone) (212)-687-0659 (Facsimile) kjones@harrisbeach.com Of Counsel: Ann G. Schoen (pro hac vice) FROST BROWN TODD LLC 3300 Great American Tower 301 East Fourth Street Cincinnati, OH 45202 (513) 651-6800 (Phone) (513) 651-6981 (Facsimile) aschoen@fbtlaw.com Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 1 of 10 PageID: 148 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii I. INTRODUCTION ...............................................................................................................1 II. PROCEDURAL BACKGROUND ......................................................................................1 III. ARGUMENT .......................................................................................................................3 IV. CONCLUSION ....................................................................................................................5 Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 2 of 10 PageID: 149 ii TABLE OF AUTHORITIES Page Cases Clarke v. Nicholson, 153 Fed.Appx. 69 (3d Cir. 2005) ...................................................................4 In re Asbestos Products Liability Litigation (No. VI), 718 F.3d 236 (3d Cir. 2013)........................................................................................................ 5 Mindek v. Rigatti, 964 F.2d 1369 (3d Cir. 1992) ............................................................................ 3 Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984) .............................................................................................................................. 3 Simbraw, Inc. v. United States, 367 F.2d 373 (3d. Cir. 1966) ............................................................................................................................. 3 Villanueva v. United Parcel Service, Inc., No. 10-2154, 2013 WL 1844762 (D.N.J. Apr. 30, 2013) ........................................................... 5 Rules Fed. R. Civ. P. § 41(b) ........................................................................................................ 1, 3, 4, 5 Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 3 of 10 PageID: 150 I. INTRODUCTION Defendant Rolled Metal Products, Inc. (“Rolled Metal”) moves under Federal Rule of Civil Procedure 41(b) for dismissal with prejudice of all claims in this case pursuant to the directive set forth in the court’s May 24 2016 letter order. On April 18, 2016, counsel for Plaintiff Talon Industries, LLC, d/b/a Progressive Ruesch Machine Co., LLC (“Progressive”) moved to withdraw as Progressive’s counsel. The Court granted the motion to withdraw by letter order dated May 24, 2016 and gave Progressive until June 20, 2016 to retain substitute counsel, or the court would “recommend to the District Judge dismissal of this action with prejudice” (emphasis in original) upon application by Defendants. On June 21, 2016, Progressive’s former counsel requested that the deadline for Progressive to retain substitute counsel be extended until July 18, 2016. The Court approved that extension and later granted Progressive an additional week, through July 25, 2016, to retain substitute counsel. No new attorneys have appeared on Progressive’s behalf. As the Court correctly noted in its May 24, 2016 letter order, Progressive, as a corporate entity, cannot proceed in this case without counsel. Progressive’s failure to retain substitute counsel in the time allotted amounts to a violation of the Court’s May 24 letter order, a failure to prosecute the case, and an abandonment of its claims against Rolled Metal. Rolled Metal therefore requests that the Court dismiss the case with prejudice. II. PROCEDURAL BACKGROUND Progressive filed its five-count Complaint on June 17, 2015 (ECF #1). In general, the Complaint alleged that Rolled Metal improperly used certain proprietary drawings belonging to Progressive to build winding stations on a slitting/traverse winding line. (A winding line is a machine designed to cut light-gauge steel into thin strips and wind the strips into large spools.) Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 4 of 10 PageID: 151 2 On September 4, 2015, Rolled Metal filed a motion to dismiss the Complaint for failure to state a claim (ECF #9). The Court denied that motion on April 12, 2016 (ECF #14). (Rolled Metal later timely filed its answer to the Complaint (ECF #16).) One week after the Court denied Rolled Metal’s motion to dismiss, Progressive’s counsel filed a motion to withdraw from representation (ECF #15), explaining in the motion that Progressive had been “uncooperative and unresponsive” and had failed to pay its attorneys’ fees. On May 24, 2016, Magistrate Judge Falk entered a letter order (ECF #17) granting the motion by Progressive’s counsel to withdraw. In the letter order, Magistrate Falk gave Progressive until June 20, 2016 to retain substitute counsel or Magistrate Falk would recommend to the District Judge that the case be dismissed with prejudice upon Defendant’s application. On June 21, 2016, Progressive’s former counsel filed a declaration (ECF #18) verifying that a copy of the Court’s May 24 letter order had been sent to Progressive by overnight mail, regular mail, and email, and asking that the Court extend Progressive’s deadline for retaining substitute counsel until July 18, 2016. The Court granted that request on June 23, 2016. On or about July 15, 2016, Rolled Metal’s local counsel received a phone call from an law firm in Summit, New Jersey indicating that that the firm may be taking over the case for Progressive, and that the Summit firm had asked for and been granted by the Court an additional week, until July 25, 2016, to file a notice of appearance. To date, that firm has not appeared in the case. The time allotted for Progressive to retain new counsel has passed, and no other attorneys have appeared on its behalf. Rolled Metal therefore seeks a dismissal of the case with prejudice pursuant to the court’s directive. Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 5 of 10 PageID: 152 3 III. ARGUMENT Federal Rule of Civil Procedure 41(b) says that a defendant may move to dismiss an action if the plaintiff “fails to prosecute or to comply with these rules or a court order[.]” Fed.R.Civ. P. 41(b). The Rule also says that a dismissal order under subsection (b), unless it states otherwise, “operates as an adjudication on the merits” (that is, with prejudice). Id. In this case, Talon’s failure to retain substitute counsel on the schedule set forth in the Court’s May 24 letter order amounts to a violation of that order and a failure to prosecute, both of which justify Rolled Metal’s request for dismissal. Courts in the Third Circuit balance six factors when deciding whether to dismiss a case under Rule 41(b): (1) the party’s personal responsibility; (2) the prejudice to the adversary; (3) a history of dilatoriness; (4) willful or bad faith; (5) the availability of alternative sanctions; and (6) the merits of the claim or defense. Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). However, not all of the Poulis factors need to be satisfied in order to dismiss a complaint. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). Here, factors one, two, five, and six weigh in favor of dismissal of Progressive’s case with prejudice. First, Progressive, as a corporate entity, cannot litigate without an attorney. Progressive is personally responsible for securing counsel to represent it. Simbraw, Inc. v. United States, 367 F.2d 373, 374-75 (3d. Cir. 1966) (“agents representing the corporation in [c]ourt must be attorneys at law who have been admitted to practice”). Presumably, Progressive’s former counsel explained to Progressive that it could not move forward in the case without substitute counsel, and discussed the possibility that the case could be dismissed if no new attorney was hired. Moreover, the Court’s May 24 letter order, which was served on Progressive by both Progressive’s former counsel and Rolled Metal’s counsel (ECF #20 and Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 6 of 10 PageID: 153 4 #21), specifically explained that Progressive could not proceed without counsel and said that Progressive “must retain substitute counsel” or risk dismissal of the case. Progressive failed to arrange for substitute counsel after its former counsel moved to withdraw from the case more than three months ago, and likewise failed to arrange for substitute counsel in the face of the Court’s letter order requiring it to retain substitute counsel or risk dismissal. Second, if the case is not dismissed, Rolled Metal will be prejudiced. Rolled Metal will have to continue to monitor the case docket indefinitely to determine whether Progressive has retained new counsel and whether any further action by Rolled Metal is necessary to protect its rights. Rolled Metal, as the defendant in this case, has an interest in procuring an end to costly litigation against it. Clarke v. Nicholson, 153 Fed.Appx. 69, 73 (3d Cir. 2005) (affirming dismissal under Rule 41(b) where plaintiff failed to timely retain new counsel; defendant was prejudiced by “expense and inconvenience in the plaintiff’s continued delay”). Third, if Progressive failed to pay its attorneys’ fees and has hired no new counsel since then, that suggests the company may be struggling financially. If Progressive is struggling financially, it may be unable to pay a monetary sanction for failing to abide by the Court’s order to retain substitute counsel. Dismissal is therefore an appropriate alternative sanction. See Clarke, 153 Fed.Appx. at 73 (“Given that the plaintiff would likely be unable to pay monetary sanctions, the [district court] concluded that there were no viable alternative sanctions.”). Fourth, Progressive’s case, at least from Rolled Metal’s perspective, would easily fail on the merits. At least three of Progressive’s five causes of action are time-barred, and another is based on conduct alleged to violate a statute (the New Jersey Trade Secrets Act) that occurred before the statute was enacted. See Rolled Metal’s Motion to Dismiss Plaintiff’s Complaint (ECF #9). This is not a case that presents close questions of fact or novel issues of law, or one in Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 7 of 10 PageID: 154 5 which Progressive has a large stake in success (obviously). The weakness of the claims coupled with Progressive’s refusal to retain new counsel to prosecute those claims counsels in favor of dismissal with prejudice. See In re Asbestos Products Liability Litigation (No. VI), 718 F.3d 236 (3d Cir. 2013) (affirming dismissal with prejudice under Rule 41(b)); Villanueva v. United Parcel Service, Inc., No. 10-2154, 2013 WL 1844762 (D.N.J. Apr. 30, 2013) (adopting magistrate judge’s recommendation that case be dismissed with prejudice for failure to prosecute). IV. CONCLUSION As the Court acknowledged in its May 24 letter order, it appears that Progressive has abandoned its claims against Rolled Metal. Even if Progressive intended to press the claims, it has violated the Court’s order by failing to timely retain substitute counsel, which itself amounts to a failure to prosecute the case. Rolled Metal therefore asks that the Court dismiss the case with prejudice. Respectfully submitted, /s/ Kelly E. Jones Kelly E. Jones (KEJ-7804) HARRIS BEACH PLLC One Gateway Center Suite 2500 Newark, NJ 07102 (973) 848-1244 (Phone) kjones@harrisbeach.com Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 8 of 10 PageID: 155 6 Of Counsel: Ann G. Schoen (Ohio 0064234) (admitted pro hac vice) FROST BROWN TODD LLC 3300 Great American Tower 301 East Fourth Street Cincinnati, OH 45202 (513) 651-6800 (Phone) (513) 651-6981 (Fax) aschoen@fbtlaw.com Attorneys for Defendant Rolled Metal Products, Inc. Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 9 of 10 PageID: 156 7 CERTIFICATE OF SERVICE I certify that on July 26, 2016, the foregoing document was filed using the Court’s Electronic Filing System. All parties associated with this case through the Electronic Filing System will receive a Notice of Electronic Filing. In addition, I certify that on July 26, 2016 a copy of the foregoing document was served by Federal Express upon Plaintiff at: TALON INDUSTRIES, LLC, d/b/a PROGRESSIVE RUESCH MACHINE CO., LLC 21 Van Natta Drive Ringwood, New Jersey 07456 In addition, I certify that on July 26, 2016 a copy of the foregoing document was served by e-mail upon Plaintiff at: steve@progressivewinders.com /s/ Kelly E. Jones Attorney for Defendant Case 2:15-cv-04103-CCC-MF Document 22-1 Filed 07/26/16 Page 10 of 10 PageID: 157 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY TALON INDUSTRIES, LLC, d/b/a PROGRESSIVE RUESCH MACHINE CO., LLC, Plaintiff, v. ROLLED METAL PRODUCTS, INC., et al., Defendants. Case No. 2:15-cv-04103 (CCC) (MF) PROPOSED ORDER THIS MATTER having come before the Court upon the Motion to Dismiss for Failure to Prosecute (“Motion to Dismiss”) filed by Defendant Rolled Metal Products, Inc. (“Rolled Metal”), the brief that accompanied the Motion, and any opposition and reply thereto; It is on this _____ day of ____________ 2016, ORDERED as follows: 1. The Court finds that good cause exists to grant Rolled Metal’s Motion to Dismiss. 2. All claims in Progressive’s Complaint against Rolled Metal are dismissed with prejudice. ______________________________ Judge Claire C. Cecchi, U.S.D.J. Case 2:15-cv-04103-CCC-MF Document 22-2 Filed 07/26/16 Page 1 of 1 PageID: 158