United States District Court, M.D. Pennsylvania
November 15, 2005.
RONALD EDWARD TUCKER, Plaintiff,
AL FARLEY, et al., Defendant.
The opinion of the court was delivered by: YVETTE KANE, District Judge
MEMORANDUM AND ORDER
Presently pending is Defendants' motion to dismiss, or in the
alternative, for summary judgment, which was filed on August 4,
2005. (Doc. 79). A supporting brief was filed on August 18, 2005.
(Doc. 80). Plaintiff failed to file a brief in opposition to the
motion. See L.R. 7.6 ("Any party opposing any motion shall file
a responsive brief. . . . [or] shall be deemed not to oppose such
motion."). Therefore, on October 4, 2005, an order was issued
directing Plaintiff to file a brief in opposition to the motion
on or before October 19, 2005. (Doc. 82). At that time, Plaintiff
was cautioned that his failure to comply with the order may
result in the granting of the motion, or dismissal of this case
for failure to prosecute. See L.R. 7.6; FED. R. CIV. P. 41(b).
(Id.). As of this date, Plaintiff has not filed a response or
brief in opposition to Defendants' motion and Defendants have
filed a "Notice To Court" requesting dismissal of the action.
(Doc. 83). Consequently, Plaintiff's case will be dismissed for
failure to prosecute. See FED. R. CIV. P. 41(b) ("For failure
of the plaintiff to prosecute or to comply with these rules or
any order of court, a defendant may move for dismissal of an
action or any claim against the defendant."); Link v. Wabash
R.R. Co., 370 U.S. 626, 630-31 (1962) (interpreting Federal Rule
of Civil Procedure 41(b) as permitting sua sponte dismissals by
the court); Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863,
868 (3d Cir. 1984) (identifying six factors relevant to deciding
whether to dismiss for failure to prosecute). II. Discussion.
Plaintiff was advised of the necessity of responding to
Defendants' motion, and to an order of court, and is personally
responsible for failing to do so. See Poulis, 747 F.2d at 868
(identifying "extent of the party's personal responsibility" as
first factor). His conduct has prejudiced Defendants by requiring
Defendants to assume the cost of continued preparation for trial
without prompt resolution of the likely meritorious motion. See
id. (identifying "[p]rejudice to the adversary" as second
factor). Further, Plaintiff's failure to respond to Defendants'
motion or orders of court, constitutes a history of dilatoriness.
(Docs. 79, 82), see Poulis, 747 F.2d at 868 (identifying
"history of dilatoriness" as third factor). Plaintiff's failure
to respond to the order of court (Doc. 82) when previously
advised by the court that inaction may result in dismissal of the
above-captioned case also constitutes willful disregard of the
court's authority. See id. at 868-69 (identifying "willful"
or "bad faith" conduct as fourth factor).
Admission of certain facts or evidence or assessment of costs
against Plaintiff would be ineffective to deter Plaintiff's
conduct because Plaintiff has already been deemed not to oppose
the motion*fn1 and because Plaintiff is proceeding in forma
pauperis in this action. (Doc. 14), see id. at 869
(identifying availability of "[a]lternative sanctions" to
dismissal as fifth factor). Lastly, review of Defendants' motion
and supporting brief leads the Court to conclude that Plaintiff's
claim arguably lacks prima facie merit. (Docs. 79-80), see
Poulis at 869-70 (identifying "[m]eritoriousness of the claim"
as sixth factor). III. Order.
AND NOW, this 15th day of November, 2005, upon
consideration of Defendants' motion to dismiss and for summary
judgment (Doc. 79), filed on August 4, 2005, and it appearing
that plaintiff has not filed a brief in response to the motion as
of the date of this order, and has therefore failed to prosecute
this action, it is hereby ORDERED that:
1. The above-captioned action is DISMISSED for
failure to prosecute. See FED. R. CIV. P. 41(b).
2. The Clerk of Court is directed to CLOSE this case.
3. Any appeal from this order is DEEMED frivolous and
not in good faith. See 28 U.S.C. § 1915(a)(3).
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