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Bell v. Cheswick Generating Station

United States District Court, W.D. Pennsylvania

April 29, 2015

KRISTIE BELL and JOAN LUPPE, Plaintiffs,
v.
CHESWICK GENERATING STATION, GENON POWER MIDWEST, L.P., Defendant.

ORDER

CATHY BISSOON, Magistrate Judge.

For the reasons that follow, Plaintiff Joan Luppe will be dismissed from this action for failure to prosecute.

On April 6, 2015, Attorneys Steven D. Liddle, Nicholas A. Coulson and James E. Pasquale moved to withdraw as Plaintiff Luppe's attorneys.[1] (Doc. 55). Ms. Luppe is one of the two named plaintiffs in the instant class action. The attorneys noted that they had attempted to communicate with Plaintiff Luppe through various means on many occasions, all to no avail. The Court granted that motion. (Doc. 56). On April 7, 2015, the Court issued an Order requiring that Plaintiff Luppe show cause as to why she should not be dismissed from the instant action for her failure to prosecute. (Doc. 57). The Show Cause Order set a response deadline of April 24, 2015. (Id.). As of April 29, 2015, she has not filed a response with the Court.

In determining whether to dismiss Plaintiff Luppe from this case for failure to prosecute and/or noncompliance with Court Orders, the undersigned considers: (1) the extent of Plaintiff's personal responsibility; (2) the prejudice to Defendants caused by the failure to meet scheduling orders; (3) Plaintiff's history of dilatoriness; (4) whether Plaintiff's conduct was willful or in bad faith, as opposed to excusable neglect; (5) the effectiveness of sanctions other than dismissal; and (6) the meritoriousness of Plaintiff's claims. Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).

Factor (1) favors dismissal because, given Plaintiff's current pro se status, she alone is responsible for the failing to comply with the Court's Order to Show Cause. See N'Jai v. Floyd, 2009 WL 1531594, *14 (W.D. Pa. May 29, 2009) (holding same), aff'd on other grounds, 2010 WL 2690335 (3d Cir. Jul. 8, 2010).

Factors (2) and (3) also favor dismissal. Given Plaintiff's repeated failure to respond to her former attorneys' efforts to communicate with her, paired with her failure to comply with a Court Order, her failure to prosecute hinders her adversaries' ability to meaningfully defend their case.

As to factor (5), the undersigned cannot imagine that lesser sanctions could be effective. Plaintiff has been advised of her noncompliance with a clear and specific Court Order, and she did not respond to this Order requiring her to show cause why this case should not be dismissed for failure to prosecute. Additionally, this omission is not consistent with "excusable neglect, " and the Court can only assume that Plaintiff's unwillingness to participate in this litigation is willful. See Poulis factor (4), supra.

The final factor, the meritoriousness of Plaintiff's claims, weighs neither in her favor nor against her. Plaintiff is a named representative of a class, and the suit will continue in the name of Plaintiff Bell even if Plaintiff Luppe is dismissed. The suit, if meritorious, may even represent Ms. Luppe's interests, simply without her as a named Plaintiff. As such, even if the instant claims are meritorious, they will prevail and benefit Ms. Luppe even if she is dismissed from this action.

For all of the reasons stated above, Plaintiff Joan Luppe is DISMISSED from this action for failure to prosecute.

IT IS SO ORDERED.


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