Abulkhair v. New Century Financial Services, Inc. , 467 F. App'x 151 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3355
___________
ASSEM A. ABULKHAIR,
Appellant
v.
NEW CENTURY FINANCIAL SERVICES, INC.;
PRESSLER & PRESSLER, LLP; GERARD J. FELT, ESQ.;
LAWRENCE J. MCDERMOTT, ESQ.
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:10-cv-06161)
District Judge: Honorable Jose L. Linares
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 15, 2012
Before: AMBRO, FISHER and NYGAARD, Circuit Judges
(Filed: March 15, 2012)
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OPINION
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PER CURIAM
Assem Abulkhair, proceeding pro se, appeals from the District Court’s
dismissal of his complaint. For the reasons that follow, we will affirm.
I.
In November 2010, Abulkhair filed a pro se complaint in the District Court
against New Century Financial Services, Inc. (“New Century”), the law firm
Pressler & Pressler, LLP (“Pressler”), and Pressler attorneys Gerard Felt and
Lawrence McDermott (hereinafter collectively referred to as “Defendants”),
alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq. In February 2011, Mitchell Williamson, a Pressler attorney, entered his
appearance on behalf of New Century, Pressler, and Felt, and filed answers to the
complaint on their behalf. In May 2011, Abulkhair filed a “Notice of Motion to
Dismiss Defendants’ Answers,” arguing that, because Williamson was “a member
of the corporation being sued,” the answers “must be stricken from the record,
dismissed and a default should be entered.” Shortly thereafter, Williamson entered
his appearance on behalf of McDermott.
On June 14, 2011, Abulkhair filed a letter indicating that he had not
propounded or responded to any discovery – the discovery period was set to expire
on June 28, 2011 – and that he could not do so until the court decided his motion.
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On June 28, 2011, McDermott moved to dismiss the vast majority of the complaint
(Count 1, part of Count 2, and Counts 3 through 10) pursuant to Fed. R. Civ. P.
12(b)(6), and requested a more definite statement as to the balance of the
complaint (the remaining part of Count 2). On July 6, 2011, Abulkhair filed
another letter, maintaining that he could not oppose McDermott’s motion until his
own motion was decided. A few days later, the other defendants joined
McDermott’s motion.
On August 8, 2011, the District Court, construing Abulkhair’s motion as a
request to disqualify Williamson as counsel, entered an order denying that relief.
In that same order, the court afforded Abulkhair ten days to respond to Defendants’
motion to dismiss, and stated that “[f]ailure to submit timely opposition will result
in immediate dismissal of Plaintiff’s complaint upon letter application of
Defendants.” (Dist. Ct. Op. & Order entered Aug. 8, 2011, at 3.) Eleven days
later, Defendants filed a letter motion seeking dismissal of the complaint, averring
that “we have received no opposition or any other correspondence regarding the
pending Motion[] to Dismiss nor have any papers been reported as filed by the
Plaintiff via the ECF system.” On August 21, 2011, the court issued a handwritten
order – the handwriting was made on a copy of Defendants’ letter motion – stating
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that “Plaintiff’s complaint is hereby dismissed with prejudice.” 1 (Dist. Ct. Order
entered Aug. 24, 2011.) This appeal followed. 2
II.
The District Court’s handwritten order does not articulate the basis for its
dismissal of Abulkhair’s complaint. Defendants interpret the dismissal as being
based on Abulkhair’s conduct in the District Court proceedings (rather than on the
merits of his complaint). This appears to be the most plausible interpretation of the
court’s order, particularly given that (1) Defendants’ Rule 12(b)(6) motion had not
sought to dismiss Abulkhair’s complaint in its entirety, and (2) the court never
made any findings or conclusions as to the merits of the complaint.
Under Fed. R. Civ. P. 41(b), a district court may dismiss an action – either
sua sponte or upon a motion – if a plaintiff fails to prosecute his case or comply
with a court order. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962).
Prior to such a dismissal, a district court ordinarily must balance the six factors set
forth in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).
Where, however, a plaintiff refuses to proceed with his case or otherwise makes
adjudication of his case impossible, a balancing of the Poulis factors is not
1
Although signed on August 21, 2011, the court’s handwritten order was not
formally entered until August 24, 2011.
2
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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necessary. See Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir. 1994); Guyer v.
Beard, 907 F.2d 1424, 1429-30 (3d Cir. 1990). We review the dismissal of an
action under Rule 41(b) for abuse of discretion. Briscoe v. Klaus, 538 F.3d 252,
257 (3d Cir. 2008).
In this case, Abulkhair repeatedly impeded his case from moving forward.
While his motion to disqualify was pending, Abulkhair refused to participate in
discovery or respond to Defendants’ motion to dismiss. Although he claimed that
he could not proceed until the court ruled on his motion to disqualify, that
argument is baseless. Once his motion to disqualify was adjudicated, the court
warned him that his failure to timely respond to Defendants’ motion to dismiss
would subject his complaint to immediate dismissal. Despite this warning,
Abulkhair did not comply with the court’s order.
Given these circumstances, we conclude that, although the District Court did
not appear to weigh the Poulis factors, it did not abuse its discretion in dismissing
Abulkhair’s complaint. Although Abulkhair appears to claim that he did not
receive a copy of the court’s August 8, 2011 order warning him of the possibility
of dismissal until August 22, 2011 – the day after the court signed the order of
dismissal – this claim does not affect our determination of whether the District
Court acted within its discretion. The District Court may, however, wish to
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consider whether this claim provides a basis for reopening this matter pursuant to
Fed. R. Civ. P. 60(b).
We have considered Abulkhair’s remaining arguments and conclude that
they lack merit. 3 Accordingly, we will affirm the District Court’s order dismissing
his complaint.
3
To the extent Abulkhair challenges the District Court’s denial of his motion to
disqualify Williamson, we conclude that, for substantially the reasons provided in its
August 8, 2011 order, the court did not abuse its discretion in denying that motion. See
Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 588 (3d Cir. 1999) (reviewing denial of a
motion to disqualify counsel for abuse of discretion).
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