in the record explains the basis for his statement that Germain "assumed that OECD matters had become his sole responsibility, and expected that the Serafini cases would be reassigned to another assistant city solicitor." Furthermore, after summary judgment was entered, it was Germain who attempted to reopen negotiations with the government, thus indicating that he was handling the case.
In light of the numerous oral and written notices sent not only to Germain, but also to Miller, it is difficult to understand how the city solicitor's office could have overlooked this matter. From the record before the court, it appears that the city solicitor's office made a conscious decision, based upon its assessment of the case, not to defend against the United States' lawsuit. The fact that that decision may have been ill-advised does not justify relieving the city from liability.
Even if we consider this case as one involving attorney negligence, our ultimate conclusion that the city is not entitled to relief from judgment remains unchanged. In Scarborough v. Eubanks, 747 F.2d 871, 875-77 (3d Cir. 1984), the court discussed the factors a district court should weigh in considering whether to dismiss a complaint as a sanction for an attorney's neglect: (1) the extent of the party's personal responsibility; (2) a history of dilatoriness; (3) whether the attorney's conduct was willful and in bad faith; (4) the meritoriousness of the claim; (5) prejudice to the other party; and (6) alternative sanctions. Those factors have equal applicability to a case involving a summary judgment entered because of an attorney's neglect.
Our analysis of the facts of this case under the Scarborough criteria centers on the meritoriousness of the city's defense. Scranton claims that except for its deemed admissions, there is no evidence in the record that it leased the Taylor landfill during a period in which hazardous wastes were deposited there. The city's assertion is without merit. According to the Industrial and Agricultural Solid Waste Inventory conducted by the Commonwealth of Pennsylvania in 1968, and the affidavit of William Williams, Fitchburg Coated Products, Inc., sent hazardous substances to the site during the term of the city's operation. Traces of some of those substances have been found at the site during the course of the cleanup activities. Since those facts are uncontested by record evidence, it is clear that were we to grant the city's request to withdraw its deemed admissions, the government would still be entitled to summary judgment on liability.
In light of the absence of a meritorious defense, an analysis of the remaining Scarborough factors is unnecessary. However, we note that the responsibility for failing to defend against this lawsuit is not solely the solicitor's. The mayor was aware of and involved in this action from the outset, yet apparently took no action to further the city's cause. The city's history of dilatoriness is well documented and there is no satisfactory explanation why it waited one year before moving to set aside the entry of partial summary judgment. This case is now two years old and we will not ask the United States to recommence discovery against a defendant which thus far has refused to cooperate. The government has been diligent in prosecuting this case and has given Scranton every opportunity to assert a defense if it chose to do so.
For the foregoing reasons, the City of Scranton's motion for relief from judgment and for leave to withdraw the deemed admissions will be denied. An appropriate order will issue.
AND NOW, this 3rd day of January, 1989, it is ordered that the City of Scranton's motion for relief from judgment and for leave to withdraw deemed admissions is denied.
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