Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shuey v. Schwab

December 17, 2009

SUSAN R. SHUEY AND JOHN SHUEY, PLAINTIFFS,
v.
WILLIAM G. SCHWAB, EAST PENN TWP., OFFICER BRIAN P. HOROS AND OFFICER ALAN W. BEISHLINE, DEFENDANTS.



(JUDGE CAPUTO)

MEMORANDUM

By Memorandum Order of December 2, 2008 (Doc. 18), I denied Plaintiffs' Motion for Reconsideration of my Order dismissing the case. This case was dismissed by Order of September 9, 2008 (Doc. 12) which was the result of Plaintiffs' failure to oppose the Defendants' Motion to Dismiss after having been directed to do so, or otherwise communicate with the Court, within fifteen days of August 21, 2008, or suffer the grant of the motion to dismiss.

There was no opposition or other communication by Plaintiffs, and the case was dismissed. The motion for reconsideration followed, and subsequent to its denial, an appeal was filed to the United States Court of Appeals for the Third Circuit. On December 3, 2009, the Court of Appeals vacated my Order and remanded the case for further proceedings. (Doc. 22.)

In its opinion, which preceded the judgment, the Court of Appeals determined that the failure to do a merits analysis and a consideration of the factors set forth in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) prevented me from dismissing the case.

In Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Court of Appeals listed six factors which a district court must consider and balance before it dismisses an action or refuses to lift a default. Those factors are "1) the extent of the party's personal responsibility; 2) the prejudice to the adverse party 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." Id. at 868.

I will consider these factors.

1. The Extent of the Party's Personal Responsibility

Since the basis of the Plaintiffs' failure to respond was that the electronic mail notification of the August 21, 2008 Order was mistakenly tagged as "spam", no personal responsibility rests with Plaintiffs.

2. The Prejudice to the Adverse Party.

There is no prejudice to the Defendants.

3. A History of Dilatoriness.

Since this suit is in the filing and Rule 12(b)(6) stage, there is no history of dilatoriness.

4. Whether the Conduct of the Party or the Attorney was Willful or in Bad Faith.

The Plaintiffs have not acted wilfully or in bad faith. Counsel has not acted willfully or in bad faith with respect to the electronic notice of the August 21, 2008 Order directing opposition to the motion to dismiss or otherwise communicate with the Court. Counsel, however, has not proffered an explanation as to why no opposition was leveled at the motion to dismiss when ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.