The opinion of the court was delivered by: McCLURE, District Judge.
Plaintiffs commenced this diversity action on November 17, 1989
defendants. On March 19, 1990 defendants St. Joseph's Hospital;
the board of directors of St. Joseph's Hospital; Sister Jean
Coughlin, IHM, administrator of St. Joseph's Hospital; the St.
Joseph's Foundation; and the board of directors of the St.
Joseph's Foundation ("St. Joseph defendants") filed a motion to
dismiss the complaint for failure to state a claim upon which
relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). The
other defendants in the action did not join in the
motion.*fn1 By Order dated April 5, 1990, Judge Edwin Kosik
granted plaintiffs' motion for an extension of time until April
16, 1990, to file their opposition brief. On April 26, 1990,
since no opposition brief had been filed, Judge Kosik granted
the St. Joseph defendants' motion to dismiss as unopposed, and
on May 7, 1990, Judge Kosik reassigned the case to the
undersigned judge. By Order dated July 2, 1990, and after
careful consideration, this court vacated Judge Kosik's order
of dismissal and granted plaintiffs an extension until July 18,
1990, to file a brief opposing the motion to dismiss. In the
background to that order, the court stated: "The court trusts
that plaintiffs' counsel has benefitted from this experience.
Further lapses will not be tolerated." Plaintiffs filed a brief
on July 18, 1991, but found it necessary to file a corrected
brief the following day.*fn2
On October 26, 1990, this court issued a memorandum and order
dismissing the wrongful discharge claim in count one of the
complaint, leaving only a breach of contract claim in that
count, and granting the plaintiffs leave to amend counts three
through seven in accordance with the court's memorandum within
twenty days from the date of the Order.*fn3
On November 20, 1991, plaintiffs filed an amended complaint.
Unfortunately, plaintiffs totally disregarded the court's order
concerning the amendment of their complaint. Plaintiffs
proceeded to amend the entire complaint, adding factual
allegations and new causes of action, as well as amending
counts other than those authorized by the court for
amendment.*fn4 Then, without leave of court, plaintiffs
filed a second amended complaint on January 18, 1991, making
further unauthorized amendments to the complaint. Specifically,
the second amended complaint presents new factual allegations
not included in the amended complaint. Plaintiffs did not
request, and to this date have not requested, leave of court to
file this second amended complaint, as required by Fed.R.Civ.P.
On February 11, 1991, the St. Joseph defendants filed a motion
to dismiss the first amended complaint. At the time, the St.
Joseph defendants were unaware of the second amended complaint
because, as the certificate of service indicates, they were not
properly served by the plaintiffs. Also on February 11, 1991,
defendants Michael Nazarenko and the Commissioners of
Susquehanna and Wayne Counties filed a motion to dismiss the
second amended complaint. Defendant County Commissioners of
Lackawanna County filed a motion to dismiss the second amended
complaint on February 14, 1991. On February 28, 1991,
the St. Joseph defendants filed a motion to dismiss the second
amended complaint, and on March 14, 1991, they filed a motion
to strike the second amended complaint.
Plaintiff was granted an extension until April 15, 1991, to
file an opposition to the defendants' motions. On April 13,
1991, plaintiff filed a motion for a further extension of time.
After considering the opposition briefs filed by several of the
defendants, the court denied the request for an extension, and
since the plaintiffs failed to file their brief before the
expiration of the deadline, all of the defendants' motions were
deemed unopposed. Local Rule 401.6.
Although throughout this action plaintiffs have constantly been
remiss in meeting their filing deadlines, the court has, until
recently, granted all of plaintiffs' requests for extensions of
time. The court even vacated the order of Judge Kosik
dismissing the St. Joseph defendants for plaintiffs' failure to
file a timely opposition to a motion to dismiss after an
extension had already been granted by Judge Kosik.
Plaintiffs, however, have gone beyond simply missing deadlines.
They have flagrantly violated the court's order granting leave
to amend counts three through seven of their complaint by
amending the entire complaint, adding factual allegations and
new causes of action, as well as amending counts other than
those authorized by the court's order. To use an old cliche, if
the court were a camel with a shattered vertebrae, plaintiffs'
first amended complaint is the straw which broke it. The filing
of the second amended complaint with further unauthorized
modifications without seeking leave of the court to amend, as
required by Fed.R.Civ.P. 15(a), simply reassures the court that
the action it is about to take is clearly justified.
In Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863 (3d
Cir. 1984), the Third Circuit enumerated the factors to be
balanced by a district court in determining whether to dismiss
a case for a failure to comply with the district court's
orders. The factors include: 1) the extent of the party's
personal responsibility, 2) prejudice to the adversary, 3) a
history of dilatoriness, 4) whether the attorney's conduct was
willful or in bad faith, 5) alternative sanctions, and 6)
meritoriousness of the claim or defense. Id. at 868.
1. The extent of the party's personal responsibility.
Although the court has used the term "plaintiffs" when
discussing the conduct of this litigation, it is understood
that the court has been referring to plaintiffs' counsel. There
is no indication that the party plaintiffs were personally
responsible for their counsel's delays and failure to comply
with the court's order. However, as this memorandum reveals,
infra, the lack of plaintiffs' personal responsibility is
markedly outweighed by the ...