The opinion of the court was delivered by: Magistrate Judge Blewitt
Plaintiff, Karen S. Glinsky, filed this action, pro se, pursuant to 26 U.S.C. § 7422, on September 29, 2008. (Doc. 1). Plaintiff's in forma pauperis motion was granted by the Court. (Docs. 2 and 7). The parties have consented to the jurisdiction of the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 14).
Plaintiff basically claims that she filed her 2001 federal income tax return and that she was entitled to a refund of $434.73. Plaintiff avers that despite the fact that she was due a refund, Defendant United States refused to pay the refund.
On February 1, 2010, Defendant United States of America filed a Motion for Summary Judgment. (Doc. 36). A support Brief and Statement of Material Facts ("SMF") were filed by Defendant on the same date. (Docs. 37 and 38). Defendant United States essentially argues that Plaintiff did not file her 2001 federal income tax return until June 26, 2006, and that she is now time barred from claiming her refund.
Plaintiff's failure to timely file her opposition brief resulted in the issuance of an Order on February 23, 2010, affording Plaintiff, sua sponte, additional time, until March 8, 2010, to file her opposition brief. (Doc. 39). The Doc. 39 Order also advised Plaintiff that her failure to timely file an opposition brief would result in Defendant's Motion for Summary Judgment being deemed unopposed pursuant to Local Rule 7.6, M.D. Pa., and that it would result in the Motion for Summary Judgment being granted. Plaintiff has neither filed her opposition brief nor requested an extension of time within which to do so.
As stated, to date, Plaintiff has neither filed a brief in opposition to Defendant's Motion for Summary Judgment nor requested a further extension of time within which to do so. The Court has given Plaintiff additional time of over two weeks from the March 8, 2010 extended deadline to file her opposition brief. Defendant's Motion for Summary Judgment is therefore deemed unopposed pursuant to Rule 7.6, M.D. Pa.
In Pruden v. Norris, 2007 WL 3094239, *1 (M.D. Pa.), the Court stated:
Although the deadline for filing an opposing brief has passed, Plaintiff has neither filed a brief in opposition to Defendants' motion, nor has he requested an extension of time in which to do so. In Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir.1991), the United States Court of Appeals for the Third Circuit held that a motion to dismiss should not be granted simply because it is unopposed. However, the Third Circuit Court of Appeals did not preclude dismissal based upon an unopposed motion, after adequate warning. "We do not suggest that the district court may never rely on the local rule to treat a motion to dismiss as unopposed and subject to a dismissal without a merits analysis... Nor do we suggest that if a party fails to comply with the rule after a specific direction to comply from the court, the rule cannot be invoked." Id. Plaintiff was advised of the requirements of Local Rule 7.6 by both the standing practice order (Doc. 5) issued in this case on November 30, 2006, and the June 21, 2007 Order. He was specifically notified that failure to comply with Local Rule 7.6 by filing a brief in opposition would result in dismissal. Consequently, the Court will grant the Defendants' unopposed motion to dismiss without a merits analysis. See M.D. Pa. Local Rule 7.6; Fed.R.Civ.P. 41(b); Stackhouse, 951 F.2d at 30 (3d Cir.1991).
In the present case, much the same as in Pruden, Plaintiff Glinsky was forewarned that if she did not file her opposition brief, the Court would deem Defendant's Motion for Summary Judgment unopposed. Plaintiff was also given a copy of the pertinent Local Rules of this Court. (Doc. 3). She was well aware of the requirements of Local Rule 7.6.
Since Plaintiff Glinsky was specifically directed to file her opposition brief and she was specifically advised that her failure to do so would result in Defendant's Motion for Summary Judgment being deemed unopposed, under Local Rule 7.6, Plaintiff will be deemed as not opposing Defendant's Summary Judgment Motion. See Bethea v. Confer, 2008 WL 3978315 (M.D. Pa.). Regardless, the Court will not grant Defendant's unopposed Motion for Summary Judgment without considering the Poulis factors. See Shuey v. Schwab, 2009 WL 3601202, *2 (3d Cir.)("Poulis has been cited too often and it too deeply ingrained in the jurisprudence of this court to assume that a party's failure to respond to a motion to dismiss can be regarded as an abandonment of the claim.").
In Jackson v. Johnson, 2006 WL 2136218, *1 (M.D. Pa.), the Court stated: the factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.1984) [are analyzed] to determine whether dismissal of the action is appropriate in this case. The Poulis factors the Court should consider are: (1) the 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, 747 F.2d at 868.
We agree with the Magistrate Judge's determination that the Plaintiff's dilatoriness outweighs any of the other considerations set forth in Poulis, and that Plaintiff's failure to comply with the Order of May 30, 2006 indicates that the Plaintiff has ...