The opinion of the court was delivered by: Judge Kane
Before the Court is Defendants' Joint Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 37(d). (Doc. No. 43-3.) Plaintiff, through his attorney, has filed an Answer to Defendants' Joint Motion to Dismiss (Doc. No. 47). Plaintiff, individually, has filed a Request for Effective Attorney and Return of Funds (Doc. No. 46).
On March 28, 2002, Defendants arrested Plaintiff for burglary and breaking and entering a business. On March 3, 2004, Plaintiff filed a pro se Complaint alleging that Defendants assaulted him and used excessive force during the arrest. (Doc. No. 1.) Defendant Doellinger filed a Motion to Dismiss on June 2, 2004 (Doc. No. 18), to which Plaintiff failed to timely respond. On July 30, 2004, the Court ordered Plaintiff to respond to Doellinger's Motion to Dismiss within twenty days. (Doc. No. 22.) On August 31, 2004, Plaintiff had not responded to the Motion to Dismiss, and this Court ordered Plaintiff to show cause why the motion should not be deemed unopposed. (Doc. No. 23.) Plaintiff retained Attorney James Harris and responded to the Show Cause Order on September 7, 2004. (Doc. No. 24.) Plaintiff also filed contemporaneously a Motion for Extension of Time to File a Response to the Motion to Dismiss. (Doc. No. 24.) By Order dated September 9, 2004, the Court granted Plaintiff's Motion for Extension of Time. (Doc. No. 27.) The same day, Plaintiff filed a response to Doellinger's Motion to Dismiss. (Doc. No. 25.) By Order dated December 2, 2004, the Court denied Defendant Doellinger's Motion to Dismiss. (Doc. No. 30.)
On July 6, 2005, the Court issued a Standard Case Management Track Order. (Doc. No. 34.) The Case Management Order set a discovery deadline of December 1, 2005, and a trial date of June 5, 2006. (Id.) Counsel for both parties agreed that defense counsel could depose Plaintiff on July 28, 2005. However, Attorney Harris canceled this deposition because of a family emergency. With Court approval, counsel for the parties rescheduled Plaintiff's deposition to November 22, 2005. However, without advance notice, Attorney Harris failed to attend the second scheduled deposition. Attorney Harris asserts that he attempted to attend the deposition, but that he could not find the prison where his client was located. (Doc. No. 48.)
Defendants now move this Court to dismiss Plaintiff's Complaint based on plaintiff counsel's failure to take an adequately active role in the litigation.*fn1 (Doc. No. 43-2.) On December 20, 2005, Plaintiff filed an Answer to Defendants' Motion to Dismiss (Doc. No. 48), but no brief in opposition. Additionally, on December 9, 2005, Plaintiff filed a pro se motion for an Effective Attorney and Return of Funds. (Doc. No. 46.)
A. Defendant's Joint Motion to Dismiss
Defendants seek dismissal of the civil action sub judice due to plaintiff counsel's repeated failure to attend his client's scheduled depositions. Federal Rule of Civil Procedure 37(d) provides that:
If a party . . . fails  to appear before the officer who is to take the deposition, after being served with a proper notice . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. . . . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Fed. R. Civ. Proc. 37(d). Subparagraph (C) of Federal Rule 37(b)(2) allows a court to sanction an infringing party by "dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party". Fed. R. Civ. Proc. 37(b)(2)(C). When determining whether to dismiss a claim under Federal Rule of Civil Procedure 37(d) for failure to comply with discovery, the Court must balance the following six factors:
(1) [T]he extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)(emphasis in original).
Every factor need not be satisfied, rather the factors must be "weighed by the district courts in order to assure that the 'extreme' sanction of dismissal . . . is justly merited." Poulis, 747 F.2d at 870; Ware ...