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Vessio v. Saw Creek Estates Community Association, Inc.

United States District Court, M.D. Pennsylvania

October 17, 2014

ROBERT J. VESSIO, Plaintiff,



Pending before this Court is Defendants' motion to dismiss along with a brief in support of their motion to dismiss filed on March 28, 2014. (Doc. 26; Doc. 27). Plaintiff Robert J. Vessio ("Vessio") has not filed a brief in opposition to this motion, despite several extensions of time in which to do so. (Doc. 29; Doc. 31; Doc. 33). As such, the Court will deem the motion unopposed. See Local Rule 7.6. For the reasons provided below, it is recommended that Defendants' motion be GRANTED.


This is a pro se civil rights action arising under Title III of the Americans with Disabilities Act ("ADA"). Vessio claims he suffered a stroke in 2009 which has left him needing to be close to bathroom facilities. (Doc. 1). Vessio owns property within Defendants' nonprofit residential community neighborhood located in Bushkill, Pennsylvania, and claims that Defendants violated Title III of the ADA by denying him access to a bathroom in Defendants' Member Services Office. (Doc. 1). On March 28, 2014, the Defendants filed a motion to dismiss the complaint, along with a brief in support. (Doc. 26). Specifically, Defendants claim that Vessio has failed to prosecute his case by refusing to respond to Defendants' discovery requests. Moreover, Defendants submit that Vessio has failed to attend the court ordered conferences and as a result, Defendants are unable to litigate this matter.

Vessio's brief in opposition to Defendants' motion to dismiss was due on April 11, 2014. (Doc. 29). As stated above, Vessio failed to file a brief in opposition by that deadline. On April 18, 2014, this Court entered an Order directing Vessio to file his brief in opposition to the Defendants' motion to dismiss (Doc. 26) by Monday, April 28, 2014. (Doc. 29). On April 30, 2014, the Court received and docketed a letter from Vessio dated April 23, 2014, in which Vessio objected to the Court's April 18th Order and informed the Court that he would be undergoing surgery on June 6, 2014. (Doc. 30). This Court construed this letter as a motion for extension of time and directed Vessio to file his brief in opposition before June 30, 2014. (Doc. 31). On June 23, 2014, the Court received and docketed another letter from Vessio dated June 20, 2014, in which Vessio requested until September to file his brief in opposition due to rescheduling issues with the surgery originally set for June 6th. (Doc. 32). This Court granted this motion in an Order dated June 26, 2014, which directed Vessio to file his brief no later than September 1, 2014.[1] (Doc. 33) At that time, however, the Court warned Vessio that no further extensions of time would be granted. (Doc. 33).

On July 2, 2014, Vessio sent another letter to this Court, informing the Court that his surgery scheduled for June 18, 2014 was again rescheduled for August and requesting an extension for September. (Doc. 34). The Court denied this request in an Order dated August 20, 2014, as Vessio's motion was premature and the Court had previously indicated that no further extensions would be given. (Doc. 35). Additionally, in that Order, the Court scheduled a status conference for September 17, 2014. Vessio failed to appear on the teleconference and to date has not filed a brief in opposition to Defendants' motion to dismiss. As Plaintiff has not filed a brief in opposition, Defendants' motion is deemed unopposed and is now ripe for disposition.



Pursuant to Rule 7.6 of the Local Rules of Court for the Middle District of Pennsylvania, a party who fails to submit a brief opposing a motion is deemed not to oppose the motion. The Court of Appeals for the Third Circuit has held that dismissal of a case for failure to comply with a local rule is a "drastic sanction" which should, with few exceptions, follow a merits analysis. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); see also Shuey v. Schwab, 350 Fed.Appx. 630, 632-33 (3d Cir. 2009). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Further, a plaintiff's failure to respond "is not alone a sufficient basis for the entry of a summary judgment." Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990).

It is now well-settled that Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Torres v. United States, CIV.A. 3:13-1010, 2014 WL 359674 (M.D. Pa. Feb. 3, 2014); citing Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991); Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D.Pa. Aug.26, 2010). However, the Court must remain mindful of the fact that "the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion...." McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir.1998); Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D.Pa.2010). Courts should strive to resolve cases on their merits whenever possible, Torres v. United States, supra, and the Court will do so here.


Federal Rule of Civil Procedure 41(b) permits a district court to dismiss a plaintiff's case for failure to prosecute. See Fed.R.Civ.P. 41(b) ("If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it."). In determining whether an action should be dismissed for failure to prosecute, the Court must balance six factors enumerated in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The six factors include:

(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... 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.

Poulis, 747 F.2d at 868 (emphasis omitted). "Such a dismissal is deemed to be an adjudication on the merits, barring any further action between the parties." Sebrell ex rel. Sebrell v. Phila. Police Dept., 159 Fed.Appx. 371, 373 (3d. Cir. 2005) (citing Landon v. Hunt, 977 F.2d 829, 833 (3d Cir. 1992); Fed.R.Civ.P. 41(b)). Dismissal for failure to prosecute is a "drastic sanction" reserved for cases "comparable to... flagrant bad faith' and callous disregard.'" Philadelphia, 47 F.3d 1311, 1330 n.18 (3d Cir. 1995). The Poulis factors are not "a magic formula whereby the decision to dismiss or not to dismiss a plaintiff's complaint becomes a mechanical calculation." Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). No one ...

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