Rubin v. Cannavo

Not for Publication UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MARK RUBIN and RUBIN SOLUTIONS, Plaintiffs, Civil Action No. 18-17472 vy ORDER CANNAVO SALVATORE, SARATOGABLUE CAPITAL ADVISORS, LLC, and BLUE WATERS EQUITY & DEVELOPMENT, LLC, Defendants.

John Michael Vazquez, U.S.D.J.

This matter comes before the Court on the November 4, 2019 Report and Recommendation (the “R&R”) of Magistrate Judge James B. Clark. D.E. 33. The R&R addressed an application by way of a sua sponte order to show cause regarding Defendants’ Salvatore Cannavo, SaratogaBlue Capital Advisors, LLC, and Blue Waters Equity & Developments, LLC (collectively “Defendants”) failure to comply with Court orders and defend this case. The R&R recommends that Defendants’ Answer be stricken pursuant to Fed. R. Civ. P. 37(b)(2) and default entered against them, R&R at 5; and it APPEARING that the parties were advised as to the dates that any objections to this R&R were to be served and filed. See id.; and it APPEARING that no objections to the R&R have been received and the time for filing any objections has expired; and it APPEARING that “where no objections are made in regard to a report or parts thereof, the district court will adopt the report and accept the recommendation if it is ‘satisf[ied] . . . that there is no clear error on the face of the record.’” Sportscare of Am., P.C. v. Multiplan, Inc., No. 10-4414, 2011 WL 500195, at *1 (D.N.J. Feb. 10, 2011) (quoting Fed. R. Civ. P. 72 Advisory Committee's Notes); and it APPEARING that this Court independently reviewed the record and the R&R, and hereby adopts it as the Opinion of this Court. In adopting the R&R, this Court is mindful of Hildebrand v. Allegheny County, 923 F.3d 128 (3d Cir. 2019), which was decided by the Third Circuit after Judge Clark issued the R&R in this matter. In Hildebrand, the Third Circuit reiterated that when possible, cases should be decided on the merits. /d. at 132. The Third Circuit also echoed Supreme Court guidance and repeated its prior directions that the sanction of dismissal with prejudice is extreme and “must be a sanction of last, not first, resort.” Jd. (quoting Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867, 869 (3d Cir. 1984)). Here, given Defendants’ repeated failure to participate in litigation, this Court concludes that Judge Clark appropriately determined that the Poulis factors demonstrate that sanctions are appropriate in this matter; THEREFORE, for the foregoing reasons, and for good cause shown, IT IS on this 25th day of November, 2019, ORDERED that the Court adopts the Report and Recommendation, D.E. 33, in its entirety; and it is further ORDERED that Defendants’ Answer, D.E. 3, is STRICKEN; and it is further ORDERED that the Clerk of the Court is directed to enter default against Defendants.

Ar%\ 02 Ne f John Michael Vazquez, U.S.D.J.