The opinion of the court was delivered by: (Chief Judge Kane)
Currently pending before the Court is the Report and Recommendation of Magistrate Judge Andrew Smyser, in which Magistrate Judge Smyser recommends that the claims of Plaintiffs Darnella Rideout, Charmarie Hockenberry, Mary Sample, Tynesa Mathis, and Dawn Crider be dismissed. (Doc. No. 83.) The Report and Recommendation presents a weighty issue, namely, under what circumstances may an attorney's dilatory conduct result in the dismissal of his client's claims. Plaintiffs have entered objections to the Report and Recommendation (Doc. Nos. 85, 86), and Defendants have filed a brief in opposition to those objections (Doc. No. 89). For the reasons explained more fully herein, the Court will adopt Magistrate Judge Smyser's Report and Recommendation (Doc. No. 83) and grant Defendants' motion to dismiss for failure to comply with a discovery order (Doc. No. 79).
Plaintiffs filed a complaint in this matter on March 4, 2009, raising gender discrimination, hostile work environment, and retaliation claims under both Title VII and the Pennsylvania Human Relations Act. (Doc. No. 1.) The Court entered a case management order on July 28, 2009, setting a January 8, 2010 discovery deadline. (Doc. No. 9.) Following a motion by Plaintiffs for an extension of time to complete discovery (Doc. No. 22), the Court amended its case management order and extended the close of discovery to April 2, 2010 (Doc. No. 30). Following a brief stay pursuant to the automatic stay provisions under 11 U.S.C. § 362 (Doc. No. 34), the Court entered a second amended case management order on June 29, 2010, extending the close of discovery to November 1, 2010 (Doc. No. 40). Finally, in response to Plaintiffs' motion for an extension of time to complete discovery (Doc. No. 50), the Court entered a third amended discovery order on October 20, 2010, extending the close of discovery to January 20, 2011 (Doc. No. 51). Notably, on December 29, 2009, Defendants served Plaintiffs with the interrogatories and document requests at issue here. (Doc. No. 63-2.)
By letter dated December 21, 2010, counsel for Defendants, Mr. Gregory Monskie, apprised the Court of a discovery dispute. (Doc. No. 52.) Mr. Monskie indicated that the parties had agreed to exchange discovery responses on November 23, 2010, after which the parties would schedule depositions. (Id. at 1.) Mr. Monskie informed the Court that on November 23, 2010, he delivered Defendants' responses to Plaintiffs' interrogatories and request for documents. (Id. at 1-2.) According to Mr. Monskie, however, Neil Grover, counsel for Plaintiffs, was unable to complete his responses and informed Mr. Monskie that Plaintiffs' responses would be provided by the opening of business on November 29, 2010. (Id. at 2.) Mr. Monskie further represented in his letter to the Court that on November 29, 2010, Mr. Grover informed Mr. Monskie that Plaintiffs would not be complying with the November 29, 2010 deadline and did not know when he would provide Plaintiffs' discovery responses. (Id.) Mr. Monskie then requested the Court's assistance in resolving the discovery dispute. (Id. at 2-3.)
The Court referred this matter to Magistrate Judge Smyser for the purpose of assisting the parties with their discovery dispute. (Doc. No. 53.) Magistrate Judge Smyser issued an order on December 29, 2010, ordering Plaintiffs to provide complete responses to the outstanding discovery requests on or before January 31, 2011. (Doc. No. 55.) On February 1, 2011, Defendants filed a motion to compel discovery in response to Plaintiffs' failure to comply with Magistrate Judge Smyser's December 29, 2010 order. (Doc. No. 59.) Defendants further moved for the Court to impose sanctions on Plaintiffs, including dismissal for failure to prosecute. (Id.) In response, Mr. Grover informed the Court that responsibility for Plaintiffs' failure to comply with Magistrate Judge Smyser's order "rests squarely" with Mr. Grover. (Doc. No. 67 at 2.) Mr. Grover further requested that any sanctions be directed at him, rather than at his clients, and that the Court enter an order directing him to produce the requested discovery within fifteen days. (Id. at 5-6.)
After this matter was referred to Magistrate Judge Smyser for the supervision of all discovery (Doc. No. 73), Magistrate Judge Smyser entered an order directing Plaintiffs to provide all outstanding discovery no later than June 22, 2011 (Doc. No. 74 at 12). Following an evaluation of the factors outlined in Poulis v. State Farm Fire & Casualty, 747 F.2d 863, 868 (3d. Cir. 1984), Magistrate Judge Smyser concluded that dismissal for failure to prosecute was not warranted. (Doc. No. 10.) However, Magistrate Judge Smyser imposed a lesser sanction, ordering Plaintiffs to pay to Defendants the reasonable fees and costs Defendants incurred in pursuing their rights to discovery. (Id. at 12.) In addition, he cautioned Defendants that "[i]f discovery as ordered is not provided, the appropriate sanction will be dismissal of the case as to plaintiffs not having made discovery." (Id.)
On June 22, 2011, at 6:35 p.m., rather than complying with the discovery order, Mr. Grover informed Magistrate Judge Smyser by letter that he was "unable to financially sustain this action," and requested a conference to "determine if an agreed course of action can be reached." (Doc. No. 76.) In response, Mr. Monskie expressed his "vehement opposition to the requests made by Attorney Grover," and, in light of Plaintiffs' failure to comply with two discovery orders, requested an immediate dismissal of the action. (Doc. No. 77.) Magistrate Judge Smyser then informed the parties on June 28, 2011, that he would not hold a conference as requested by Mr. Grover, and informed the parties that they were free to proceed with appropriate motions. (Doc. No. 78.) Later on June 28, 2011, Defendants filed the pending motion to dismiss for failure to comply with a discovery order. (Doc. No. 79.)
In the present matter, it is undisputed that Plaintiffs have failed to comply with two discovery orders. The only question left for this Court to resolve is what sanction should be imposed and on whom should the burden of that sanction fall. Whether to impose sanctions for failure to comply with discovery orders is committed to the Court's sound discretion. See Flaherty v. M.A. Bruder & Sons, Inc., 202 F.R.D. 137, 141 (E.D. Pa. 2001). In exercising this discretion, the Court must ensure that any sanction imposed is just and that the sanction is specifically related to the particular claim or claims at issue in the order to provide discovery violated by the offending party. Ins. Corp. of Ireland, Ltd. v. Compagnie Des Bauxites, 456 U.S. 694, 707 (1982); see also Estate of Spear v. Comm'r of Internal Revenue, 41 F.3d 103, 111 (3d Cir. 1994). Rule 37 of the Federal Rules of Civil Procedure authorizes the Court to impose sanctions on a party who violates an order of the Court to "provide or permit discovery." Fed. R. Civ. P. 37(b)(2)(A). When sanctioning a party for failure to comply with a discovery order a court may impose sanctions including: designating that certain facts be admitted, prohibiting the non-complying party from supporting or opposing designated claims or defenses, imposing an award of monetary damages, or even dismissing all or part of the action. Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii).
Defendants argue, and Magistrate Judge Smyser recommends, that the proper sanction in this action is dismissal of Plaintiffs' claims. Dismissal is a drastic sanction to be used in cases exhibiting "extreme abuses of discovery or other procedural rules or for failure to prosecute." Harris v. City of Phila., 47 F.3d 1311, 1330 (3d Cir. 1995) (citing Hoxworth v. Blinder Robinson & Co., Inc., 980 F.2d 912 (3d Cir. 1992)). The Third Circuit has identified certain factors that the district court must weigh before imposing the "extreme" sanction of dismissal:
(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 (emphasis in original). These factors are not to be applied mechanically, nor must all the factors be satisfied to dismiss a case. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). In determining whether the action should be dismissed, the Court must weigh all six factors in the context of the complete litigation history, as opposed to finding the existence or non-existence of one factor dispositive. Mindful of ...