United States District Court, W.D. Pennsylvania
MEL M. MARIN, Plaintiff,
LA PALOMA HEALTHCARE CENTER and its alter egos; ITALIAN MAPLE HOLDINGS, LLC; PLUM HEALTHCARE GROUP; MARK BALLIF; PAUL HUBBARD; ORVILLE LLOYD MARLETT; GRUPO TELEVISIA a foreign corporation, and its alter egos doing business as Xetv San Diego 6 Television; JEANE LENORE MARLETT TRUST; EMILIO AZCARRAGA JEAN; GUSTAVO CISNEROS; ALFANSO DE ANGOITIA; BERNARDO GOMEZ MARTINEZ; MICHAEL RICHTER, jointly and severally, Defendants.
DAVID STEWART CERCONE, District Judge.
Mel M. Marin ("plaintiff") filed a complaint in this Court on October 5, 2011, seeking redress under purported causes of action for conversion, fraud and deceit, assault and battery, section 1983 civil rights, interference with business, intentional infliction of emotional distress, defamation, invasion of privacy, and wrongful death. See Complaint (Doc. No.s 1-2 & 1-3). This action is related to the action plaintiff filed at Marin v. Biros, et al., 1:11cv884. That action arose while plaintiff was "a candidate for Congress in the Western District of Pennsylvania." Complaint at 1:11cv884 (Doc. No. 1-2 in 1:11cv884) at ¶1. Plaintiff had registered as a candidate in the primary election for the 3rd Congressional District in order to challenge Representative Kathy Dahlkemper for the democratic nomination. Id .; see also Memorandum Order of August 30, 2012, in Marin v. The Erie Times, et al., 1:11cv102 (Doc. No. 18 in 1:11cv102) at 4, aff'd, 525 F.App'x 74 (3d Cir. 2013). In that action plaintiff contended generally that Biros and her husband, as private citizens, published an article on the internet that was critical of plaintiff's qualifications for public office and suggested in a false light that he had committed a serious crime, to wit, having murdered his mother. The other defendants in that action then failed to correct the misinformation after having an opportunity to do so. Id. at ¶¶ 8-11. The remaining defendants in that action either assisted these defendants or failed to take appropriate steps to correct the misinformation that was disseminated about defendant during his candidacy.
In the instant action plaintiff seeks to sue the purported originators of the false story used against him in Marin v. Biros, et al., 1:11cv884. See Memorandum of Law on Jurisdiction (Doc. No. 1-1 in 1:11cv230) at 1. These individuals and entities all took actions in California and jurisdictions other than Pennsylvania. Id .; see also Complaint in 1:11cv230. Plaintiff suffered an injurious effect from their conduct in Pennsylvania and contends that his injuries in his race for office are sufficient to support jurisdiction and venue. Id. Plaintiff also sues as "as inheritor of his Father's and Mother's causes of action (survival actions) against those same defendants in California, because the defamation  was intended to interfere with son's duties under his family trust to rebuild his family's real estate business in Erie, Mercer and Lawrence [counties, Pennsylvania] that he started to do in 1999, and to protect his parents and prosecute actions for harms against them." Id. at 2.
Plaintiff further explains that "[i]n other words, the facts for the survival claims for Father and Mother are inextricably intertwined' with plaintiff's own claims against them on defamation that hurt plaintiff here." Id. "Defendants thereby interfered with plaintiff's powers of attorney and his contracts with his parents to prosecute their actions and those of their estate, and to rebuild their real estate business in Pennsylvania which plaintiff was attempting to do in 2009 with bids to Sharon City as shown in the related action Marin v. Fragle, 2:09cv1333 (W.D. Pa. 2009)." Id.
Plaintiff submits that jurisdiction exists over half of the claims because he was injured in this district in conjunction with his candidacy for congressional office. The claims of his father and mother's estate are intertwined with plaintiff's claims and defendants hurt plaintiff for the purpose of hurting his parents and their trust. Id. And this state of affairs is sufficient to invoke jurisdiction and avoid a transfer or dismissal base on forum non-conveniens.
In Marin v. Mayor Joseph Sinnot, et. al, 1:12cv139, this court determined that plaintiff had an obligation to employ reasonable efforts to effectuate service before a request is made to the Marshal Service to effectuate service of the complaint. See Opinion of March 26, 2014 (Doc. No. 21 in 1:12cv139) at 9; see also Local Rule 10(B) (all pro se filers assume responsibilities inherent to litigation, including responsibility for service of a complaint). Here, plaintiff has failed to make timely service of his complaint and no extension for addition time under Rule 4(m) has been requested. In addition, plaintiff has failed to keep his address current. Every address provided by plaintiff in his more recent spate of filings is out-of-date and mail sent to plaintiff at his various addresses of record consistently has been returned to the court by the United States Postal Service with a label indicating the address is no longer valid and a forwarding address is not available. See e.g. Docket sheet and staff notes in Mel Marin v. William McClincy and Melissa Thompson, 1:11cv132; Melvin M. Marinkovic v. Mayor Joseph Sinnott, et al., 1:12cv139 and Mel Marin v. Tom Leslie, et al., 2:09cv1453 (each case listing the address provided by plaintiff in this action and containing staff notes reflecting the return of all opinions and orders sent to plaintiff at the provided Catonville, MD, address). Given this state of affairs, the court can neither direct plaintiff to attempt to effectuate service of his complaint nor direct plaintiff to submit proof of attempted service and thereafter provide United States Marshal Service 285 forms so that the Marshal Service may attempt to effectuate service. The matter is only further complicated and the prejudice to defendants compounded by the passage of 36 months since plaintiff commenced this action.
A court's decision to dismiss for failure to prosecute is committed to the exercise of its 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 (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., 747 F.2d 868 (3d Cir. 1984), to determine whether the sanction of dismissal is warranted. Harris v. City of Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995).
In Poulis, the United States Court of Appeals for the Third Circuit identified the following six factors to be considered in determining whether dismissal is proper:
(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.
Id. at 868 (emphasis omitted). These factors must be balanced, although not all need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988).
Consideration of these factors weighs in favor of dismissal. Under this court's local rules and established pro se practices and procedures plaintiff personally is responsible for supplying the court with an address that will foster direct and timely communication with the court. He has failed to do so. Further, he has failed to file any motion or provide any form of communication in an effort to keep the case from getting stale.
Defendants have been prejudiced by plaintiff's failure to attempt service of the complaint and in the event he did not make service thereafter provide 285 forms so that the Marshal Service could effectuate timely service. More than three years have passed since the events in question and defendants have not even been made aware of the existence of plaintiff's potential claims against them.
As noted above, plaintiff has a history of filing frivolous lawsuits for vexation purposes. A mere review of plaintiff's complaint strongly suggests that the instant action is more of the same.
Furthermore, there does not appear to be a more sensible or better suited sanction. A lesser sanction ...