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MOSER v. BASCELLI

March 15, 1995

WILLIAM H. MOSER, Plaintiff,
v.
FRANCIS BASCELLI, et al., Defendants.



The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 This Memorandum and Order will resolve two outstanding motions filed in this civil rights matter. The first is Plaintiff William Moser's Motion to Vacate this Court's Order of January, 4, 1995, in which we granted the defendants' unopposed motion for the sanction of dismissal. The second motion was filed by the defendants, Officer Francis Bascelli, the Ridley Township Police Department and Ridley Township, which seek sanctions for Mr. Moser's failure to comply with this Court's January 4 Order. For the reasons that follow, the Mr. Moser's motion will be denied, while the defendants' motion will be granted.

 I. HISTORY OF THE CASE

 Mr. Moser alleges in his complaint *fn1" that he was shot by Officer Bascelli after he failed to come to a stop at stop sign. The defendants state that Mr. Moser was shot only after he twice rammed Officer Bascelli's car, putting Officer Bascelli in considerable jeopardy. Mr. Moser later entered a plea of nolo contendere to the charge of aggravated assault in connection with the events giving rise to this lawsuit. Mr. Moser's purported reason for entering the nolo contendere plea, as opposed to entering a guilty plea or proceeding to trial, was so that the issues presented could be litigated initially in the context of this federal civil rights lawsuit.

 On August 3, 1994, the defendants served Mr. Moser with discovery requests, to which Mr. Moser failed to respond. Thus, on October 7, 1994, the defendants filed with this Court a motion to compel discovery as well as a request for sanctions in the form of the costs and attorney's fees related to the filing of the motion. Mr. Moser failed to respond to the motion. Accordingly, on October 31, 1994, this Court entered an Order compelling Mr. Moser to comply with the discovery requests and to show cause for his failure to provide discovery. The Court warned Mr. Moser that a failure to show cause would result in the imposition of sanctions.

 Mr. Moser failed to show cause as to his inability to provide timely discovery. Indeed, by November 17, 1994, Mr. Moser had still failed to provide the defendants with the requested discovery, in violation of this Court's October 31 Order. Thus, the defendants filed a motion for sanctions, in which they requested the costs and attorney's fees associated with the filing of both the motion for sanctions and the motion to compel. Further, the defendants requested that the case be dismissed in light of Mr. Moser's violation of this Court's October 31 Order. In their motion, the defendants indicated that Mr. Moser had entered a plea of guilty to the criminal charge of aggravated assault in connection with the events giving rise to the claim. Again, Mr. Moser failed to respond to the motion. Accordingly, on January 4, 1995, and in accordance with Local Rule 20(c), this Court granted the defendants' motion as unopposed and dismissed Mr. Moser's case. Further, this Court ordered Mr. Moser to reimburse the defendants for the cost and attorney's fees incurred in connection with the preparation and filing of both the motion to compel and the motion for sanctions. Mr. Moser has yet to comply with this portion of the Order.

 In support of our decision, we applied the factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, (3d Cir. 1984). These 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) the availability of alternative sanctions; and (6) the meritoriousness of the claim. Id. at 868-70. In applying these factors, we noted Mr. Moser's failure to provide full, complete and timely discovery; his willful violations of Orders of the Court; and the fact that the motion to compel and the motion for sanctions were unopposed, indicating Mr. Moser's dilatoriness. We were especially swayed by Mr. Moser's plea of guilty to the aggravated assault charge, which severely undercut the merits of Mr. Moser's claim. We concluded that under the circumstances, we were acting within our discretion in granting the defendants' motion.

 II. DISCUSSION

 A. Motion to Vacate

 Mr. Moser's motion is brought pursuant to Rule 60(b), which provides, in pertinent part, as follows:

 
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; . . . or (6) any other reason justifying relief from the operation of the judgment.

 Fed. R. Civ. P. 60(b). Mr. Moser does not specify the provision under which he asserts an entitlement to relief; instead, he raises a number of contentions that arguably fit within the scope of the above quoted grounds for relief. ...


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