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Diane Calhoun v. National Railroad Passenger

May 27, 2011


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge


For the reasons that follow, pro se Plaintiff Diane Calhoun‟s Complaint will be dismissed for failure to prosecute pursuant to Rule 41 of the Federal Rules of Civil Procedure.

Plaintiff initiated the present litigation against Defendants, her former employer, Amtrak, and former union, United Transportation Union by filing her Complaint against them, pro se, on October 8, 2010. (Docket No. 1). Plaintiff has set forth three claims against Defendants in her Complaint: (1) alleged violation of the Railway Labor Act, 45 U.S.C. § 151, et. seq., whereby she seeks review of the arbitration board‟s denial of her claim for reinstatement; (2) alleged violation of the breach of duty of fair representation to her during the arbitration proceedings; and (3) alleged violation of Title VII of the Civil Rights Act of 1964, i.e., unlawful gender discrimination. (Id.). Plaintiff did not file proof of service of her Complaint on the Defendants with the Court within 120 days as is required under Rule 4(m) of the Federal Rules of Civil Procedure. As such, on February 8, 2011, the Court issued an Order directing Plaintiff to show good cause why service was not made within the deadline by February 22, 2011. (Docket No. 3). The Court advised Plaintiff that failure to do so would result in dismissal of her case, without prejudice. (Id.). In response, on February 22, 2011, Plaintiff filed return of service forms indicating that service was made on both Defendants via certified mail. (Docket Nos. 4, 5).

Both Defendants responded to the Complaint by filing motions to dismiss and briefs in support on March 10, 2011. (Docket Nos. 13, 14, 16, 17). The Court entered its standard Motions Practice Order which required Plaintiff to respond to said motions within 21 days. (Docket No. 19). Subsequently, Plaintiff wrote a letter to the Court dated March 31, 2011, requesting that the Court grant her an extension of time to file her response to the Defendants‟ motions to dismiss. (Docket No. 20). The Court granted her request and ordered that Plaintiff shall file her responses to the motions to dismiss by May 11, 2011. (Docket No. 21). The Court further advised Plaintiff that failure to do so "may result in the imposition of sanctions or dismissal of this action for failure to prosecute." (Id. at 1-2).

Plaintiff failed to submit any responses to the motions to dismiss by that deadline. Accordingly, the Court issued a Show Cause Order on May 13, 2011, directing Plaintiff to show good cause why this case should not be dismissed for her failure to file responses to the motions to dismiss by the May 11, 2011 deadline. (Docket No. 23). In said Order, the Court directed Plaintiff to file a response by May 23, 2011. (Id.). To date, Plaintiff has yet to file any response to the motions to dismiss within the time period ordered by the Court or to file any response to the Court‟s Show Cause Order.*fn1 Thus, she has failed to comply with these Court Orders. Nor has she sought an enlargement of time to file said response.

Rule 41(b) of the Federal Rules of Civil Procedure authorizes this Court to dismiss a plaintiff‟s case for failure to prosecute. See Fed.R.Civ.P. 41(b) ("If 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."). This Court may sua sponte dismiss a case under Rule 41, but must "use caution in doing so." Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008). In determining whether dismissal is warranted, this Court must consider the following factors: 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; and 6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.1984). The Court need not find each and every factor in order to justify dismissal. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). When a district court has doubt, the decision of whether to dismiss ""should be resolved in favor of reaching a decision on the merits‟" and alternative sanctions should be used. Roman v. City of Reading, 121 Fed. Appx. 955, 958 (3d Cir. 2005) (quoting Scarborough v. Eubanks, 747 F.2d 871, 878 (3d Cir. 1984)). The Poulis factors, however, do not provide a "magic formula whereby the decision to dismiss or not to dismiss becomes a mechanical calculation easily reviewed by" the Court of Appeals. Durah v. Rustin, 05-1709, 2005 WL 2924788 (W.D.Pa. Oct. 10, 2006) (quoting Mindik v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)). In this Court‟s estimation, after applying the Poulis factors in the manner described below, dismissal of this case is appropriate due to Plaintiff‟s failure to comply with this Court‟s Orders and to otherwise prosecute this case.

1.The extent of a party's personal responsibility

As noted, Plaintiff is representing herself pro se. Therefore, she is personally responsible for prosecuting her case and for adhering to this Court‟s Orders. See Briscoe, 538 F.3d at 258 ("a pro se plaintiff is responsible for his failure to . comply with a court‟s orders."). She has failed to do so and this factor weighs in favor of dismissal.

2.Prejudice to the adversary

There is little or no evidence of prejudice to the Defendants. Certainly they have been forced to defend this action. In addition, they have each filed motions to dismiss Plaintiff‟s Complaint and the case has yet to move beyond this initial round of motions into discovery. (Docket Nos. 13, 14, 16, 17). However, Defendants have not been required to undertake costly additional litigation activities as a result of Plaintiff‟s failure to respond to their motions nor alleged that they have lost any significant evidence necessary to defend her claims. See Briscoe v. Klaus, 538 F.3d 252, 259 (3d Cir. 2008) (holding that prejudice equates to "the irretrievable loss of evidence, the inevitable dimming of witnesses‟ memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party."). Accordingly, this factor is neutral.

3.A history of dilatoriness

There has been a pattern of dilatoriness by Plaintiff in this case; she has missed several deadlines and taken little action beyond filing her complaint over six months ago. Initially, she failed to serve her Complaint on Defendants within 120 days as required under Rule 4(m). See Fed.R.Civ.P. 4(m) ("If a defendant is not served within 120 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time."). Plaintiff later served the Complaint after this time period had expired but set forth no explanation regarding why she failed to meet the deadline in response to the Court‟s Show Cause Order. Thus, beyond the fact that she is representing herself pro se and appears to lack any legal training, she has set forth no basis for a finding of "good cause" for her failure to effectuate service in a timely manner. Id. ("But, if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.").

After service was made, Defendants filed motions to dismiss Plaintiff‟s Complaint. (Docket Nos. 13, 14, 16, 17). Plaintiff timely sought an extension of time within which to respond, which was granted by the Court. (Docket Nos. 20, 21). The Court ordered that Plaintiff file her responses by May 11, 2011 and advised her that failure to do so may result in dismissal. (Docket No. 21). No responses have been filed by Plaintiff. Nor did Plaintiff seek another enlargement. As a consequence, the Court issued a Show Cause Order thereby extending Plaintiff the opportunity to explain or justify her untimeliness to the Court by May 23, 2011. (Docket No. 23). Again, Plaintiff has not responded to the Court‟s Order.

In Poulis, the United States Court of Appeals held that "[t]ime limits imposed by the rules and the court serve an important purpose for the expeditious processing of litigation. If compliance is not feasible, a timely request for an extension should be made to the court. A history . of ignoring these time limits is ...

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