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Bromily, Inc. v. State National Ins. Co.

December 8, 2008

BROMILY, INC., T/A BANKERS, PLAINTIFF
v.
STATE NATIONAL INS. CO., INC., DEFENDANT



The opinion of the court was delivered by: Magistrate Judge Blewitt

MEMORANDUM AND ORDER

I. Background

On or about October 10, 2007, this breach of insurance contract and bad faith action was initiated when Plaintiff, Bromily, Inc. ("Bromily"), filed, through counsel, a Complaint in the Philadelphia County Court of Common Pleas. (Doc. 1, Ex. A). On November 8, 2007, Defendant State National Ins. Co., Inc., filed a Notice for Removal of this case from Philadelphia County Court of Common Pleas to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1441. (Doc. 1). On December 17, 2007, Plaintiff filed a Motion to Transfer Venue of this case to the United States District Court for the Eastern District of Pennsylvania. (Doc. 6). On January 16, 2008, the United States District Court for the Middle District of Pennsylvania granted Plaintiff's Motion to Transfer Venue and transferred this case to the United States District Court for the Eastern District of Pennsylvania since this case was originally filed in the Philadelphia Court of Common Pleas and could only be removed to the Eastern District of Pennsylvania District Court. (Doc. 16).

Plaintiff essentially claims that Defendant wrongfully denied its claim under its insurance policy with Defendant for property damage it sustained.

During the pendency of this case in the Eastern District of Pennsylvania, Defendant filed its Answer to the Complaint on March 13, 2008. (Doc. 18-3).

On February 8, 2008, the United States District Court for the Eastern District of Pennsylvania transferred this case back to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). (Doc. 18).

On July 7, 2008, the United States District Court for the Middle District of Pennsylvania signed the Consent of the parties to proceed before the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 26). On July 22, 2008, the Court granted Defendant's Motion to Compel and directed Plaintiff to respond to Defendant's discovery requests and to make certain initial disclosures within seven (7) days. (Doc. 27). Thereafter, the Court scheduled a telephonic Case Management Conference for August 11, 2008. (Doc. 28). During the conference, Attorney Feinstein, counsel for Plaintiff, apprised the Court of his intention to file a motion to withdraw as counsel for Plaintiff and requested that the issuance of a scheduling order be stayed pending resolution of his Motion. The Court agreed to stay the joint case management conference and the issuance of a scheduling order until after disposition of Attorney Feinstein's Motion to Withdraw. (Doc. 29).

On August 12, 2008, counsel for Plaintiff filed a Petition to Withdraw his and his firm's appearance as attorney for Plaintiff, with an attached support Brief. (Doc. 30). Defendant filed its opposition Brief on August 15, 2008. (Doc. 31). When the Petition of counsel for Plaintiff to Withdraw became ripe for disposition, the Court entered an Order on September 3, 2008, and granted Defendant's request for oral argument regarding the Petition. The Court scheduled oral argument for September 15, 2008 at 10:00 a.m. (Doc. 32). The Court also ordered Joseph Lehman, owner of Plaintiff Bromily, Inc., to appear at the scheduled oral argument.

The Court conducted oral argument on September 15, 2008. (Doc. 33). Counsel for Plaintiff and counsel for Defendant were present, but, in direct defiance of the Court's September 3, 2008 Order, Joseph Lehman, sole owner of Plaintiff Bromily, Inc., failed to appear at the scheduled oral argument. Mr. Lehman was served with the Court's September 3, 2008 Order by the Clerk of Court, and Plaintiff's counsel also wrote a letter to Mr. Lehman dated September 8, 2008, reminding him of his obligation to appear at the scheduled oral argument.*fn1

Mr. Lehman did not file any document with this Court or contact the undersigned's office advising the Court that he was not able to attend the oral argument or that he needed a continuance of it. Thus, the Court found that Mr. Lehman's failure to attend the September 15, 2008 oral argument was willful and that it constituted a direct violation of the Court's September 3, 2008 Order. (Doc. 35).

On September 18, 2008, the Court issued a Memorandum and Order which stated that Counsel for Plaintiff's Petition for Leave to Withdraw Appearance as Attorney for Plaintiff (Doc. 30) was granted. Mr. Lehman was afforded thirty (30) days from the date of the Order to secure new counsel for Plaintiff and to have new counsel enter an appearance in this case. Further, the Clerk of Court was directed to serve a copy of the stated Memorandum and Order on Plaintiff at: Bromily, Inc., t/a Bankers, c/o Joseph Lehman, 32 Cadwallader Court, Yardley, PA, 19067.*fn2

Plaintiff did not obtain new counsel, and no further filing with the Court was made by either Plaintiff or Mr. Lehman on Plaintiff's behalf. Further, since the September 15, 2008 oral argument to the present date, no filing has been submitted in this case, and no contact has been made with the Court on Plaintiff's behalf.

On October 20, 2008, Defendant filed a Motion to Dismiss the Complaint with prejudice due to the lack of prosecution by Plaintiff pursuant to Fed. R. Civ. P. 41(b) and 37(b). (Doc. 36). Defendant also filed its support Brief. (Doc. 36-2). Plaintiff did not timely respond to Defendant's Motion.

On November 17, 2008, the Court issued an Order (Doc. 37) directing as follows:

1. Joseph Lehman, owner of Plaintiff Bromily, Inc., t/a/ Bankers, shall file Plaintiff's opposition brief to Defendant's Motion to Dismiss (Doc. 36) within ten (10) days of the date of this Order.

2. The failure of Mr. Lehman to timely file an opposition brief on behalf of Plaintiff will result in the Motion to Dismiss being deemed unopposed pursuant to Local Rule 7.6, M.D. Pa. No further extensions of time will be granted absent extraordinary circumstances.

3. Mr. Lehman is afforded a final extension of time, i.e., an additional ten (10) days from the date of this Order, to secure new counsel for Plaintiff and to have new counsel enter an appearance in this case, as originally directed in the Court's Order of September 18, 2008. (Doc. 35).

4. Failure of Mr. Lehman to comply with this Order may result in this action being dismissed pursuant to Fed.R.Civ.P. 41(b) for failure of Plaintiff to prosecute ...


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