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Torres v. Robinson

United States District Court, Third Circuit

January 2, 2014

ISRAEL TORRES, Plaintiff,
v.
B.T. ROBINSON CORRECTIOAL OFFICER, Defendant.

MEMORANDUM ORDER OF COURT

TERRENCE F. McVERRY, District Judge.

Pending before the Court is DEFENDANT'S MOTION TO DISMISS ACTION FOR PLAINTIFF'S FAILURE TO PROSECUTE (ECF No. 51). The time for Plaintiff to file a response has passed, and no response has been filed. The Court will nevertheless rule on the motion, without the benefit of a response from Plaintiff.

This is a pro se prisoner's civil rights action. Plaintiff was formerly a prisoner at SCI-Forest, having been released from custody on November 26, 2013, and apparently moved in with a relative in the Bronx, New York City. Immediately prior to his release and once again after his release, Plaintiff participated in telephonic pre-trial conferences with the Court and Defendant's counsel, during which he was notified and consented to his case having been scheduled for trial on Monday, December 9, 2013, with jury selection set to begin at 9:30 a.m. in Courtroom 6C. He was also sent a trial scheduling order reflecting that same information. Plaintiff orally assured the Court that he would be present on the date and time scheduled for trial.

Despite his assurances, Plaintiff failed to appear on the date and time of his trial. The Court delayed the proceedings until 10:30 a.m., in the hope that Plaintiff would arrive or call, but he never did. Nor did he otherwise contact the Court to explain his absence or request a continuance. After Plaintiff failed to appear, Defendant made an oral motion to dismiss the action for failure to prosecute. The Court denied the oral motion without prejudice since the Court chose to permit Plaintiff to have an opportunity to explain his whereabouts. Accordingly, the Court ordered Defendant to file a written motion within a week and indicated that Plaintiff would be permitted to respond. This motion followed on December 16, 2013. Plaintiff was given until December 31, 2013, to file a response. The Court sent a copy of the response scheduling order to Plaintiff's address in the Bronx via first class and certified mail, return receipt requested. The Court has not received acknowledgment of Plaintiff's receipt of the order. As previously noted, Plaintiff has not filed a response.

Turning to the merits, Defendant's motion is governed by Fed.R.Civ.P. 41(b), which provides, in pertinent part, that "[i]f the plaintiff fails to prosecute... a defendant may move to dismiss the action or any claim against it." Failing to appear at trial is a quintessential example of a failure to prosecute. However, prior to dismissing a case under Rule 41(b) the Court must consider the following six factors:

1. The extent of the party's personal responsibility;
2. The prejudice to the adversary caused by the failure;
3. Whether the party displayed 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. Whether the claim has merit.

Ash Trucking Co., Inc. v. Global Indus. Tech., Inc., No. 07-1443, 2008 WL 437028, at *4 (W.D. Pa. Feb. 14, 2008) (citing Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984)). The Court must weigh all six factors. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). However, "[d]ismissal can be appropriate even if some of the Poulis factors are not satisfied." Seawright v. Williams, No. 05-576-JJF, 2009 WL 1176459, *1 (D. Del. May 1, 2009) (internal quotation marks omitted).

The Court's analysis of the Poulis factors confirms that dismissal is warranted in this case. In particular, the first, second, forth, fifth, and sixth factors all weigh heavily in favor of dismissal.

First, because Plaintiff is litigating pro se, he "is solely responsible for prosecuting [his] claim." Seawright, 2009 WL 1176459, at *2 (citing Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 920 (3d Cir. 1992)). He cannot pass the ...


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