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Parker v. Pennstar Bank

June 2, 2010

FLORENCE R. PARKER, PLAINTIFF
v.
PENNSTAR BANK, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Caputo

Magistrate Judge Smyser

REPORT AND RECOMMENDATION

The plaintiff commenced this action in the United States District Court for the District of New Jersey by filing a complaint on October 9, 2008. On October 27, 2008, the plaintiff filed an amended complaint. By an Order dated March 12, 2009, Judge Hochberg ordered the case transferred to this court.

By an Order dated July 22, 2009, all of the defendants except defendants Pennstar Bank, NBT, David M. Gregory, Esquire and Kathy Black were dismissed from the action. On September 25, 2009, defendants Pennstar Bank, Gregory and Black filed an answer to the amended complaint.

Pursuant to the Order of April 13, 2010, the discovery deadline is June 25, 2010 and the dispositive motions deadline is August 25, 2010.

By an Order dated March 5, 2010, we granted in part and denied in part defendant Pennstar Bank's motion to compel discovery. We granted the motion to the extent that the plaintiff was ordered to provide to defendant Pennstar Bank: receipts and explanations of value in response to defendant's Interrogatory No. 1; copies of her federal and state tax returns for the years 2004 to 2008; the names of her expert witnesses; and the name of the person she contacted at Pennstar Bank after she obtained her home equity loan. The plaintiff was ordered to provide this information on or before March 25, 2010.

On March 30, 2010, defendant Pennstar Bank filed a motion for sanctions based on the plaintiff's purported failure to comply with the Order of March 5, 2010. Defendant Pennstar Bank requests as a sanction that the case be dismissed with prejudice and that the plaintiff be ordered to pay the defendants' attorney's fees and expenses in defending this action. In the alternative, defendant Pennstar Bank requests that the plaintiff be precluded from advancing argument or presenting testimony regarding her claim for monetary damages, that the plaintiff be precluded from calling fact and expert witnesses, that the plaintiff be precluded from offering evidence or raising claims regarding items allegedly removed from her home, and that the defendants be permitted at the time of trial to inform the jury of the plaintiff's failure to disclose the requested information.

By an Order dated April 13, 2010, we granted in part and denied in part another motion to compel filed by the defendants. We granted the motion to the extent that the plaintiff was ordered to provide to the defendants, within seven days, the addresses of her witnesses. On April 21, 2010, the defendants filed another motion for sanctions based on the plaintiff's failure to comply with the Order of April 13, 2010. In this motion, the defendants request that the plaintiff be precluded from calling witnesses, that the plaintiff be ordered to pay to defendants their reasonable attorney's fees and expenses incurred in making the motion and such other relief as is allowed by Fed.R.Civ.P. 37(b) that the court deems just and appropriate.

The defendants' motions for sanctions were briefed. By an Order dated May 13, 2010, we scheduled a hearing on the motions for sanctions for May 25, 2010. At the request of the plaintiff, the hearing was rescheduled to June 1, 2010.

The plaintiff failed to appear at the hearing.*fn1 The defendants appeared at the hearing and presented a record of the plaintiff's failure to comply with discovery. At the hearing, the defendants argued that the plaintiff has acted in bad faith and that the case should be dismissed. We agree.

Federal Rule of Civil Procedure 41(b) provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Although dismissal is an available sanction, it is a drastic sanction which "should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff." Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982). In deciding whether to dismiss an action pursuant to Fed.R.Civ.P. 41(b), the court must balance the factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). 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.

Id. No single factor is dispositive. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). Each factor need not be satisfied for the court to dismiss an action. Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003).

The first Poulis factor is the extent of the party's personal responsibility. In this case the plaintiff is proceeding pro se.*fn2 A pro se litigant is responsible for failure to comply with the court's orders and failure to appear at hearings. The evidence presented by the defendants at the hearing establishes that the plaintiff failed to comply with the Orders of March 5, 2010 and April 13, 2010. We conclude that the plaintiff was ...


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