United States District Court, M.D. Pennsylvania
KAROLINE MEHALCHICK, Magistrate Judge.
This is a diversity action arising out of a motor vehicle collision on Interstate 80 in Luzerne County, Pennsylvania. In the complaint, the Plaintiffs assert a variety of negligence tort claims against defendants Denis Fritz and Red & White Trucking Corporation ("Red & White"). (Doc. 1). Pending before the Court is Defendant Strongstown's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 41(b).
I. BACKGROUND AND PROCEDURAL HISTORY
On January 17, 2014, Fritz and Red & White jointly filed a third-party complaint, asserting common law contribution and indemnity claims against various third-party defendants, including New Enterprise Stone & Lime Co. ("New Enterprise"), Strongstown B&K Enterprises, Inc. ("Strongstown"), Swank Associated Companies ("Swank"), and Commonwealth of Pennsylvania Department of Transportation ("PennDOT"). (Doc. 32). On February 19, 2014, New Enterprise filed its answer to the third-party complaint, which included a cross-claim for common law contribution and indemnity against defendants Fritz and Red & White, and against all other third-party defendants. (Doc. 38). On March 11, 2014, Strongstown filed its answer to the third-party complaint, which included a cross-claim for common law contribution and indemnity against defendants Fritz and Red & White, and against all other third-party defendants. (Doc. 46). On March 18, 2014, Swank filed its answer to the third-party complaint, which similarly included a cross-claim for common law contribution and indemnity against all other third-party defendants. (Doc. 55).
On August 20, 2014, Defendant Red & White Trucking Corporation ("Red & White") submitted a letter (Doc. 98) informing the Court that it had not been able to arrange for the deposition of its corporate designee. The next day, Defendant Strongstown filed a letter and a proposed stipulation of dismissal pursuant to Federal Rule of Civil Procedure 40(a). (Doc. 99). In its letter and stipulation, Defendant Strongstown requested that it be dismissed from the action, without having to file a dispositive motion, since Defendant Red & White was not able to produce a corporate designee, had otherwise failed to respond to discovery requests, and cannot prosecute its claims against the third-party defendants. (Doc. 99). Because it was not clear that the stipulation was agreed to by all parties, the Court declined to grant the stipulation. (Doc. 100). Defendant Strongstown then filed a Motion to Dismiss (Doc. 103), in which it seeks to dismiss the claims and cross-claims brought against it by Red & White Trucking Company. The matter is fully briefed and ready for disposition.
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.'" Harris v. City of 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 factor is determinative and thus not all of the Poulis factors must be met to warrant dismissal. Mindek v. Rigatti, 964 F.2d at 1373; Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). The court must balance the factors and need not find that all of them weigh against plaintiff to dismiss the action. Thorpe v. Wilmington Hous. Auth ., 262 F.R.D. 421, 423 (D. Del. 2009); Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir.2002). Nor must each factor be satisfied to dismiss a claim. See Ware v. Rodale Press, Inc ., 322 F.3d 218, 221 (3d Cir.2003). The Third Circuit has noted that "the sanction of dismissal is disfavored absent the most egregious circumstances." United States v. $8, 221, 877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir.2003) ( citing Poulis, 747 F.2d at 867-68). However, "[i]n certain cases, it is a necessary tool to punish parties who fail to comply with the discovery process and to deter future abuses." National Hockey League v. Metropolitan Hockey Club, Inc ., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).
In this matter, it is undisputed that Red & White Trucking has been unable to produce a corporate representative for deposition. However, Red & White Trucking submits that it has responded to written discovery in this matter. (Doc. 109, page 3). Additionally, Red & White Trucking argues that allegations of liability against Strongstown do not necessarily involve any evidence to be offered by a corporate designee, but rather evidence already produced to date, including the Accident Report, provides sufficient evidence for the continued prosecution of this matter. (Doc. 109, page 4). The Third Party Complaint (Doc. 32) alleges that a contributing factor with regard to the cause of the underlying accident was the roadway construction being conducted on Interstate 80, a number of miles from the incident site, and that Strongstown may have been conducting, managing or supervising that construction. (Doc. 32). The accident report (Doc. 110-1) indicates that a potential environmental/roadway factor was that the accident was "work zone related."
A. PERSONAL RESPONSIBILITY OF RED & WHITE TRUCKING
It is clear from the record so far in this matter that Red & White Trucking is responsible for its failure to produce corporate designees for deposition or answer any discovery. Counsel has been candid throughout the course of this matter regarding his attempts to secure the depositions. ( See Doc. 89; Doc. ...