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Johnson v. Weltman, Weinberg & Reis Company, L.P.A.

United States District Court, E.D. Pennsylvania

February 22, 2017

ANISHA JOHNSON Plaintiff - pro se
v.
WELTMAN, WEINBERG & REIS COMPANY, L.P.A. Defendant

          MEMORANDUM OPINION

          NITZA I. QUIÑONES ALEJANDRO, J.

          INTRODUCTION

         Presently before this Court is a motion to dismiss Plaintiff's complaint filed by Defendant Weltman, Weinberg & Reis Company, L.P.A. (“Defendant”), [ECF 12], premised on pro se Plaintiff Anisha Johnson's (“Plaintiff”) failure to prosecute this action and her repeated failures to comply with this Court's Orders. In light of the procedural posture of this case and after having carefully considered and weighed the factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), for the reasons stated, this matter is dismissed.

         BACKGROUND

         On March 30, 2016, Plaintiff filed an application to proceed in forma pauperis, (the “IFP application”) and a complaint against Defendant essentially charging Defendant with illegal conduct stemming from a collection practice. [ECF 1]. The IFP application was granted by Order dated April 6, 2016, [ECF 2], and Plaintiff's complaint was docketed. [ECF 3]. On June 30, 2016, Defendant filed its answer. [ECF 6]. By Order dated July 1, 2016, this Court scheduled a preliminary pretrial conference for December 14, 2016, and directed the parties to prepare and file a joint Rule 26(f) report prior to the scheduled pretrial conference. [ECF 7]. On December 12, 2016, Defendant filed its Rule 26(f) report, and advised the Court, inter alia, of Defendant's unsuccessful attempts to confer with Plaintiff in order to conduct the requisite Rule 26(f) meeting. [ECF 8].

         On December 14, 2016, this Court held the scheduled pretrial conference, which was attended by counsel for Defendant but not by Plaintiff. [ECF 10]. As a result of Plaintiff's failure to attend the pretrial conference, this Court issued a Rule to Show Cause Order, [ECF 11], which directed Plaintiff to show cause, by December 30, 2016, why this matter should not be dismissed for her failure to comply with this Court's previous Order and appear for the pretrial conference. The Order also advised that Plaintiff's failure to comply “may result in the dismissal of this action.” Plaintiff has not responded in any way to this Court's Order. On January 30, 2017, Defendant filed the underlying motion to dismiss the complaint based on Plaintiff's failure to prosecute.

         LEGAL STANDARD

         Federal Rule of Civil Procedure (“Rule”) 41(b) provides that an action may be dismissed if a plaintiff “fails to prosecute or to comply with these rules or a court order.” Fed.R.Civ.P. 41(b). Although dismissal is an extreme sanction that should only be used in limited circumstances, dismissal is appropriate if a party fails to prosecute the action. Harris v. City of Phila., 74 F.3d 1311, 1330 (3d Cir. 1995). Because of the extreme nature of this type of sanction, the Third Circuit Court of Appeals in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984), instructed district courts to apply a six-factor balancing test to determine whether the entry of such a dismissal order is appropriate. Id. at 867-68.

         The Poulis factors require district courts to consider: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary; (3) whether the party has 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; and (6) the meritoriousness of the claim. Id. at 868. However, not all of the factors need weigh in favor of entering the dismissal order against a plaintiff nor need be satisfied. See Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008) (“While no single Poulis factor is dispositive, we have also made it clear that not all of the Poulis factors need be satisfied in order to dismiss a complaint.”); C.T. Bedwell & Sons, Inc. v. Int'l. Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988) (noting that the district court did not abuse its discretion where five Poulis factors favored dismissal). A decision to enter a dismissal order is within the district court's discretion. Poulis, 747 F.2d at 868.

         DISCUSSION

         Relying on the case law cited, this Court will review and balance the Poulis factors to determine whether Defendant's motion to dismiss is warranted. Therefore, each Poulis factor will be briefly addressed and weighed.

         1. Extent of Plaintiff's Responsibility

         Plaintiff is proceeding pro se in this matter. There is no indication that she has not received this Court's previous Orders and admonishment. Further, more than 30 days have elapsed since the filing of the Rule to Show Cause Order. This passage of time is more than sufficient for Plaintiff to have responded to the Court's Orders. Thus, she alone is responsible for her failure to comply with this Court's Orders. See Briscoe, 538 F.3d at 258. Since her failures to comply with this Court's Orders cannot be attributed to counsel or another party, this factor weighs in favor of dismissal.

         2. ...


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