The opinion of the court was delivered by: Judge Conner
In this diversity action brought by plaintiff Teresa Anne Scott ("Scott") against Pamela Wellington Lackey ("Wellington") and Evan Leslie Adams ("Adams"), Scott asserts claims of defamation, libel, invasion of privacy and conspiracy. (See Doc. 160, at 41-46). Presently before the court are three motions:
(1) Scott's motion for entry of final judgment, or in the alternative, for a certificate of interlocutory appeal and stay (Doc. 359); (2) Wellington's motion to dismiss (Doc. 363); and (3) Scott's motion to strike (Doc. 366) Wellington's motion to dismiss. For the reasons that follow, the court will deny the first two motions as dismiss the third as moot.
The procedural history of this case, which has been pending before this court for close to a decade, is extensive. In the interest of economy, the court will only recite the history relevant to the pending motions. By Memorandum and Order dated January 20, 2010, (Doc. 345), the court granted defendant Adams' motion for summary judgment on the claims asserted against him. Because claims against Wellington were still pending, the court deferred entry of judgment in favor of Adams until the resolution of all claims. (See id. at 27). Scott thereafter filed a motion for reconsideration of the court's grant of summary judgment, which the court denied on July 20, 2010. (See Doc. 354). Although the dispositive motions deadline had passed, and all dispositive motions ruled upon, the court inadvertently overlooked the need to issue a new trial schedule for the remaining claims against Wellington. Neither Scott nor Wellington, both of whom are proceeding pro se in this matter contacted the court to inquire about a trial date.
From July 20, 2010, the date of the court's order denying Scott's motion for reconsideration, until the filing of Scott's motion for entry of judgment on July 12, 2011, there has been no activity in this case, save for the submission of quarterly status reports on the pendency of Wellington's bankruptcy proceedings. (See Docs. 355-358). Wellington initially filed her bankruptcy petition in July of 2005, and the instant matter was stayed against Wellington pursuant to the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a). (Doc. 219). The court lifted the stay on June 7, 2007, after Scott moved for, and was granted relief from, the automatic stay by the bankruptcy court. (Doc. 249). Per court order, Wellington continues to submit quarterly status reports. (Doc. 2129). Wellington has completed the payments required under her bankruptcy plan and awaits discharge, which has been delayed pending resolution of the instant matter. (See Doc. 369).
On July 12, 2011, Scott filed her motion for entry of judgment or in the alternative for certification of the January 20, 2010 memorandum and order for interlocutory appeal and stay. (Doc. 363). Thereafter, on August 10, 2011, Wellington filed a motion to dismiss. (Doc. 363). In response, Scott filed a motion to strike (Doc. 366) Wellington's motion to dismiss. The motions have been fully briefed and are ripe for disposition.
The court will address Wellington's motion to dismiss (Doc. 363) and Scott's motion to strike (Doc. 366) first, followed by Scott's motion for entry of judgment or certificate of appealability.
A. Wellington's Motion to Dismiss and Scott's Motion to Strike
On August 10, 2011, Wellington filed a motion to dismiss. In her motion and brief, Wellington fails to cite any statute or case law entitling her to relief. In essence, she argues that the case should be dismissed because Scott has taken no action against her in this litigation since January of 2010. (See Doc. 363, at 5, 6). In response to the motion, plaintiff Scott filed a motion to strike, asserting that she is unable to prepare a meaningful response without knowing the legal basis and facts relied upon by Wellington. (Doc. 366).*fn1
The court construes Wellington's motion as a motion to dismiss for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). A defendant may move under Rule 41(b) to dismiss an action "if the plaintiff fails to prosecute or comply with [the federal rules of civil procedure] or court order." FED. R. CIV. P. 41(b); see also Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008). In determining whether dismissal under Rule 41(b) is appropriate, the Third Circuit directs district courts to consider the following factors: (1) the extent of the plaintiff's personal responsibility; (2) the prejudice to the defendant caused by plaintiff's failure to meet scheduling orders and respond to discovery; (3) whether there is a history of dilatoriness; (4) whether the conduct of the plaintiff was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal; and (6) the meritoriousness of the plaintiff's claim or defense. Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984); Gillespie v. Beard, Civil No. 3:-09-CV-1453, 2011 WL 4463727, at *2 (M.D. Pa. Sept. 26, 2011). Every factor need not be satisfied to justify dismissal. Gillespie, 2011 WL 4463727, at *2.
Here the court finds that none of the factors have been satisfied. The extended period of inactivity in this case is largely due to the inadvertent failure of the court to issue a revised scheduling order setting a trial date for Scott and Wellington subsequent to granting defendant Adam's motion for summary judgment. Plaintiff Scott is not responsible for the court's omission, nor has she failed to comply with court orders or the federal rules. While this matter has a long litigation history, that is the result of numerous factors beyond the control of any of the parties. There is no evidence of willfulness or bad faith by Scott and dismissal is unnecessary as the court will issue a scheduling order setting a trial date so that this matter may proceed to a conclusion. The court will therefore deny Wellington's motion to dismiss (Doc. 363) and dismiss Scott's motion to strike (Doc. 366) as moot.
B. Scott's Motion for Entry of Judgment or Certificate of Appealability
On January 20, 2010, the court granted Adams' motion for summary judgment, but deferred the entry of judgment on those claims until the resolution of the remaining claims against Wellington. Scott now moves for the entry of final judgment on the claims against Adams so that she may take an appeal to the Third Circuit. In the alternative, Scott moves for a certificate of interlocutory appeal pursuant to 28 U.S. § 1292(b), and stay.
1. Rule 54(b) Entry of Judgment
The federal courts have historically disfavored piecemeal appeals. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438 (1956); Sussex Drug Products v. Kanasco, Ltd., 920 f.2d 1150, 1153 (3d Cir. 1990). ...