Filed: May 21, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-21-2009 Azkour v. Aria Precedential or Non-Precedential: Non-Precedential Docket No. 08-3133 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Azkour v. Aria" (2009). 2009 Decisions. Paper 1335. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1335 This decision is brought to you for free and open access by the Opinions of the United St
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-21-2009 Azkour v. Aria Precedential or Non-Precedential: Non-Precedential Docket No. 08-3133 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Azkour v. Aria" (2009). 2009 Decisions. Paper 1335. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1335 This decision is brought to you for free and open access by the Opinions of the United Sta..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-21-2009
Azkour v. Aria
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3133
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Azkour v. Aria" (2009). 2009 Decisions. Paper 1335.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1335
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3133
HICHAM AZKOUR,
Appellant
v.
LOIS ARIA, in her individual capacity;
GAETANO GREGORY, in his individual capacity;
ANASTASIO STAMATIOU; ALEXANDROS STAMATIOU;
FRANCIS X. DORRITY; HAMDI M. RIFAI
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-07-cv-01568)
District Judge: Honorable Katherine S. Hayden
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 24, 2009
Before: MCKEE, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: May 21, 2009)
OPINION
PER CURIAM
Hicham Azkour, proceeding pro se, appeals from the District Court’s dismissal of
his complaint pursuant to Federal Rule of Civil Procedure 37(b). For the reasons that
follow, we will affirm.
On April 4, 2007, Azkour filed a complaint in the United States District Court for
the District of New Jersey, naming as defendants Hudson County Prosecutor’s Office
Detective Lois Aria, First Assistant Prosecutor Gaetano Gregory, Anastasio and
Alexandros Stamitous, and attorneys Hamdi Rafi and Francis Dorrity. He alleged that
defendants violated his rights under the 14th Amendment and 42 U.S.C. §§ 1981, 1983,
1985, 1986 & 3617. Defendants answered the complaint and filed discovery requests
pursuant to Rule 26 of the Federal Rules of Civil Procedure.
In the interim, Azkour filed a number of motions, including a motion to amend his
complaint to, among other things, add as defendants the City of Jersey City, the Jersey
City Police Department and a number of individual police officers, and include claims of
malicious prosecution and false arrest and imprisonment. The Magistrate Judge denied
Azkour’s motion to amend pending his production of proof: (i) that the complaint against
the Jersey City police officers filed in New Jersey Superior Court had been dismissed
without prejudice, and (ii) that Dorrity had acted as a municipal prosecutor or private
prosecutor under New Jersey state law. Azkour appealed to the District Court on August
27, 2007. On October 18, 2007, he moved to stay all proceedings pending the District
Court’s review of his appeal. The Magistrate Judge denied his stay motion, and on
November 7, 2007, he appealed that decision to the District Court. After the Magistrate
Judge denied a renewed motion by Azkour to stay the proceedings pending resolution of
his appeal, he appealed to this Court, which dismissed the appeal for lack of jurisdiction,
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and denied his motion to stay the District Court proceedings as moot, noting in addition
that the motion was without merit, because “among other reasons, appellant will suffer no
conceivable prejudice from serving his initial disclosures on the basis of whatever
information might currently be available to him.” C.A. No. 08-1020 (Apr. 9, 2008).
While Azkour was prosecuting these various appeals, the Magistrate Judge issued
at least eight separate discovery orders between August 17, 2007 and March 3, 2008,
setting out deadlines for Rule 26 disclosures, signed medical release forms, responses to
interrogatories, and the production of documents. Included in many of these orders was a
warning that failure to comply with the court’s discovery deadlines might result in the
imposition of sanctions, including a recommendation that the District Court dismiss the
complaint, particularly in light of the absence of any explanation for Azkour’s failure to
respond to any of the court’s orders, and because his failure to do so was hindering the
defendants’ ability to respond to his allegations. On March 3, 2008, the Magistrate Judge
issued a final Report & Recommendation, applying the factors set out in Poulis v. State
Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), and recommending that Azkour’s
complaint be dismissed pursuant to Federal Rule of Civil Procedure 37(b) for failure to
comply with the Court’s discovery orders. Following a de novo review of the Magistrate
Judge’s Report & Recommendation, the District Court entered an order dismissing
Azkour’s complaint. Azkour appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a
dismissal for failure to prosecute for abuse of discretion. In re Jewelcor Inc., 11 F.3d 394,
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397 (3d Cir. 1993). Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure authorizes a
district court to dismiss an action should a party fail to obey an order to provide or permit
discovery. In assessing the propriety of such an action, we have stated that:
we will be guided by the manner in which the trial court balanced the
following factors, which have been enumerated in the earlier cases, and
whether the record supports its findings: (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, 867 (3d Cir. 1984). Additionally, we
have held that complete satisfaction of each Poulis factor is not required to justify the
sanction of dismissal. See Mindek v. Rigatti,
964 F.2d 1369, 1373 (3d Cir. 1992).
“Ultimately, the decision to dismiss constitutes an exercise of the district court judge’s
discretion and must be given great deference by this Court – a court which has had no
direct contact with the litigants and whose orders, calendar, docket and authority have not
been violated or disrupted.”
Id.
In his appeal brief, Azkour claims that the District Court abused its discretion in
adopting the Magistrate Judge’s Report & Recommendation without considering his
“Letter/Informal Application Addressed to the Honorable Katharine S. Hayden, United
States District Judge,” which was filed on March 25, 2008, approximately one week
before the Magistrate Judge’s Report & Recommendation was entered. According to
Azkour, this document could not be construed as anything but objections to the Report &
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Recommendation and, therefore, the District Court erred in stating that Azkour did not
object to the Report & Recommendation. Much like his appeal brief, Azkour’s
“objections” are addressed primarily to the merits of his motion to amend his complaint,
and do not address the propriety of dismissal as a sanction for his refusal to comply with
the Magistrate Judge’s discovery directives. Rather, he argues that he should not have
had to comply with those directives while his appeal to the District Court of the
Magistrate Judge’s denial of his motion to amend his complaint was pending. He
maintains that he could not have responded to the court’s discovery orders prior to
receiving a ruling on his appeal because “any initial evidence that he would provide to
respondents, per Fed. R. Civ. P. 26, would compromise and hurt his case.” (Appellant’s
Br. 7-8.) He further claims that “[b]ecause the district judge has not ruled on Petitioner’s
appeals to amend his Complaint and the discovery material remains contingent upon his
amended claims and the not-yet-named defendants, Petitioner was not able to abide by
Fed. R. Civ. P. 26.” (Appellant’s Br. 9.)
We reject Azkour’s arguments on appeal. The management of its docket is
committed to the sound discretion of the District Court. In re Fine Paper Antitrust Litig.,
685 F.2d 810, 817 (3d Cir. 1982). Azkour may not withhold discovery responses and
blatantly violate multiple court orders simply because he prefers that the District Court
act on all of his motions first. Our review of the Poulis factors makes it clear that the
District Court acted well within its discretion in dismissing the underlying complaint.
Any delay or failure to follow the Court’s orders was directly attributable to Azkour, as
5
he was representing himself pro se. As the District Court noted, Appellees were
prejudiced by Azkour’s delay and his failure to comply with the Court’s discovery and
scheduling orders. Azkour’s refusal to respond to any of Appellees’ discovery requests
precluded them from investigating and meaningfully responding to the allegations
contained in the complaint. Furthermore, as detailed in footnote 1 of the Magistrate
Judge’s Report & Recommendation, Azkour’s refusal to participate in discovery and to
follow court orders was ongoing and without justification. Finally, the Court concluded
that based upon Azkour’s history, no sanction other than dismissal would be appropriate.
The Court held in particular that it could not have imposed monetary sanctions on Azkour
as he was proceeding in forma pauperis. Given Azkour’s history of noncompliance and
the ample opportunities provided to him by the District Court to rectify his behavior, we
cannot say that the District Court abused its discretion in dismissing his complaint.
Based on the foregoing, we will affirm the judgment of the District Court.
Appellee Dorrity’s motion for leave to file a supplemental appendix, construed by the
Clerk’s office as a motion to file an addendum and for leave to expand the record, is
granted.
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