The opinion of the court was delivered by: McLaughlin, J.
On September 2, 2008, the Court of Appeals dismissed and remanded the plaintiff's appeal of the Court's partial entry of judgment for the defendant, finding that it lacked jurisdiction (ECF No. 67). No further action was taken in this case until December 5, 2011, when the Court ordered the plaintiff to show cause why this case should not be dismissed for failure to prosecute. In response, the defendant moved to dismiss. The Court will grant the defendant's motion because the plaintiff's dilatoriness has prejudiced the defendant and no other sanctions are appropriate.
The plaintiff filed this action on December 22, 2001
alleging that the defendant failed to pay him for his idea that the defendant style himself as "The Answer" during his professional basketball career. The complaint, as first amended, brought claims for idea misappropriation (Count I), breach of contract (Count II), and quantum meruit (Count III). The Court granted the defendant's motion to dismiss the amended complaint (Docket No. 13), but the plaintiff was granted leave to file an amended complaint that asserted claims for promissory estoppel under Pennsylvania law (Docket No. 22). The plaintiff filed a second amended complaint, and after denying the defendant's motion to dismiss it, the defendant moved for summary judgment (Docket No. 53). The Court granted partial summary judgment in favor of the defendant in an order dated March 22, 2006 (Docket No 58). Noting that the Court had already dismissed the plaintiff's claims sounding in contract, the Court held that the plaintiff might still be able to prove reliance damages at trial under a promissory estoppel theory, and preserved these claims in its order.
After a telephone conference on September 28, 2006, the Court entered judgment for the defendant on all non-promissory estoppel claims, noting the parties' agreement that the promissory estoppel claim could be preserved and that the plaintiff was seeking to appeal the Court's grant of partial summary judgment (Docket No. 63). Blackmon appealed on October 11, 2006, and in May, 2008, the parties were directed to brief the issue of whether the appellate court had jurisdiction over the appeal. The Third Circuit remanded the case on September 2, 2008, finding that it lacked jurisdiction because the Court's Order of September 28, 2006 did not enter final judgment with respect to all claims or make an express finding of "no just reason for delay" under Federal Rule of Civil Procedure 54(b). Op. at 5, Appeal No 06-4416, (3d Cir. Aug. 11, 2008).
No further proceedings took place until the Court directed the parties to show cause on December 5, 2011, why the case should not be dismissed for failure to prosecute. In response, the defendant moved to dismiss.
The United States Court of Appeals for the Third
Circuit has articulated six factors that a district court must balance in considering dismissal under Rule 41(b). Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984). These factors are (1) the extent of a 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. Id. at 868. Although each of the factors must be considered, not all six of the factors must be satisfied for the court to order dismissal. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992) (counseling that "the decision [to dismiss with prejudice] must be made in the context of the district court's extended contact with the litigant."). Applied to the facts of this case, Poulis counsels dismissal with prejudice.
A. Plaintiff's Responsibility
The plaintiff offers no explanation for his failure to move forward with his case following the Third Circuit's Order remanding the matter in 2008. The plaintiff merely acknowledges the passage of time and admits that the Court may not be able to find "no just reason for delay" pursuant to his request that the 2006 Order be modified to include an express reference to Rule 54(b). Pl. Resp. ¶ 22 (Docket No. 69). The defendant maintains that there was not even any contact between the parties during that interval. Def. Resp. at 4 (Docket No. 70). The plaintiff does not allege that his counsel was responsible for the delay or argue that his counsel was so deficient as to deprive him of ...