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SWEENEY v. ST. JOSEPH'S HOSP.

August 7, 1991

MARTIN A. SWEENEY AND MILDRED B. SWEENEY, PLAINTIFFS,
v.
ST. JOSEPH'S HOSPITAL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: McCLURE, District Judge.

MEMORANDUM

I. BACKGROUND

Plaintiffs commenced this diversity action on November 17, 1989 against numerous 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. 15(a).

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.

II. DISCUSSION

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 ...


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