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Johnson v. R.R. Donnelly Printing Co.

United States District Court, W.D. Pennsylvania

May 9, 2014

BRENDA JOHNSON, Plaintiff,
v.
R.R. DONNELLY PRINTING CO., Defendant.

REPORT AND RECOMMENDATION

LISA PUPO LENIHAN, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the Third Amended Complaint in the above-captioned case be dismissed without prejudice based upon Plaintiff's failure to prosecute.

II. REPORT

Plaintiff, Brenda Johnson ("Plaintiff"), proceeding pro se , initiated this suit on August 27, 2012, by filing a Motion for Leave to Proceed In Forma Pauperis along with a Complaint. [ECF No. 1]. Plaintiff's Motion was granted by the Court and directed the Clerk of Court to file the Complaint. Following the first round of motions to dismiss, the Court conducted a settlement conference on June 4, 2013 [ECF No. 29], and an Order granting a Joint Stipulation of Dismissal was entered by the Court. [ECF No. 30]. On June 7, 2013, Plaintiff notified the Court that she declined the settlement. [ECF No. 33]. Thereafter, the Court vacated its Order on the Joint Stipulation of Dismissal. [Text Order dated June 10, 2013].

After amending her Complaint a second time and partially surviving Defendants' Motion to Dismiss (ECF No. 36], the matter was allowed to proceed on Plaintiff's Third Amended Complaint [ECF No. 53] solely against Defendant R.R. Donnelley & Sons Co. ("Defendant"). This Complaint alleged that Defendant discriminated against her on the basis of her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1) ("Title VII"). Defendant subsequently filed an Answer on November 13, 2013. [ECF No. 52].[1]

On January 9, 2014 the Court held an initial case management conference, at which the Court explained to Plaintiff the civil litigation discovery process and the consequences if either party failed to comply with its discovery obligations. [ECF No. 59]. Also at this conference, counsel for Defendant personally served Plaintiff with Defendant's first set of requests for production of documents and interrogatories. Accordingly, Plaintiff's responses to those discovery requests were due within 30 days of service, namely, no later than February 10, 2014. See Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A).

Following the conference, the Court entered an initial case management order [ECF No. 60] setting deadlines, establishing a deadline of January 17, 2014 for the parties to provide their Rule 26(a)(1)(A) initial disclosures, and setting a discovery deadline of June 30, 2014.

On March 10, 2014, Defendant filed a Motion to Compel Discovery [ECF No. 61], in which it alleged that Plaintiff had failed to provide initial disclosures, despite assuring counsel in a telephone call on or about January 24, 2014 that she would do so within days. [ECF No. 61 at ¶ 5]. When Plaintiff still had not provided her initial disclosures or responses to Defendant's discovery requests by February 19, 2014, counsel for Defendant sent a letter to Plaintiff requesting the missing discovery be provided no later than March 5, 2014, and indicating that if Plaintiff wished to discuss the matter, to give counsel a call. Id . at ¶ 6. Defendant further alleged that Plaintiff had not provided the requested information, nor had she contacted counsel since their conversation on January 24, 2014. Id . at ¶ 7. Defendant informed the Court that it needed the requested discovery and initial disclosures in order to prepare to take Plaintiff's deposition. Id . at ¶ 8.

The Court entered an Order on March 11, 2014 directing Plaintiff to file a response to the Motion to Compel Discovery no later than March 24, 2014. [Text Entry dated March 11, 2014]. Plaintiff was further instructed that in lieu of responding to the Motion, she could provide the requested discovery by March 24, 2014, and file a certificate of compliance with the Court by March 24, 2014 indicating that she had done so. Id .

Plaintiff failed to comply with this Court's Order and on March 28, 2014, the Court issued an Order to Show Cause why the Court should not issue a report and recommendation recommending the dismissal of this action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. [ECF 62]. Plaintiff's response to this Show Cause Order was due no later than April 11, 2014. Id . at p. 2. This Order was sent to Plaintiff via First Class U.S. Mail and certified mail at her address of record. [Staff notes dated March 28, 2014].

On April 18, 2014, the Court's Text Order dated March 11, 2014 that had been sent to Plaintiff at her address of record was returned to the Court, and the envelope was marked with a label stating: "Return to Sender. Not deliverable as addressed. Unable to forward." [Remark dated April 18, 2014]. The Court's Show Cause Order, however, has not been returned to the Court.

On April 25, 2014, the Court granted the Defendant's Motion to Compel Discovery in light of Plaintiff's failure to provide any response to the Motion. [Text Order Entry dated April 25, 2014]. To date, Plaintiff has not provided the requested initial disclosures or discovery to the Defendant, nor has she filed any response to the Court's Show Cause Order.

A district court has inherent power to dismiss a complaint, sua sponte , under Federal Rule of Civil Procedure 41(b) for a plaintiff's failure to comply with an order of court. Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund , 29 F.3d 863, 871 (3d Cir.1994) ("The Supreme Court affirmed, stating that a court could dismiss sua sponte under Rule 41(b)."); Guver v. Beard , 907 F.2d 1424, 1429 (3d Cir.1990). Furthermore, a court's decision to dismiss for failure to prosecute is committed to the court's sound discretion. See Collinsgru v. Palmyra Bd. of Educ. , 161 F.3d 225, 230 (3d Cir.1998) ("We review for abuse of discretion a district court's dismissal for failure to prosecute pursuant to Rule 41(b)."), abrogated on other grounds by Winkelman ex rel. Winkelman v. Parma City School Dist. , 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007). In exercising that discretion, a district court should, to the extent applicable, consider the six factors identified in Poulis v. State Farm Fire and Casualty Co. ...


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