United States District Court, E.D. Pennsylvania
case is an appeal from the United States Bankruptcy Court for
the Eastern District of Pennsylvania. Appellee filed a motion
to dismiss the appeal, which I will grant.
years ago, the Appellant, Hilda Singletary, filed adversary
claims against the Appellee, PNC Bank National Association,
in the United States Bankruptcy Court for the Eastern
District of Pennsylvania. The Bankruptcy Court dismissed some
of Appellant's claims. Appellant commenced this appeal on
May 3, 2016, challenging the Bankruptcy Court's dismissal
of those claims.
has been represented by counsel throughout the entirety of
this appeal. This appeal was initiated by Quarleen Singletary
(Appellant's mother) as next of friend on behalf of
Appellant. Quarleen Singletary passed away on May 15, 2016.
Clerk of Court's Notice dated June 2, 2016, Appellant was
ordered to file its opening brief no later than July 5, 2016.
(Doc. No. 3). The day Appellant's brief was due to be
filed, Appellant filed a Motion to Place the Appeal in
Suspense. (Doc. No. 4). Appellant's Motion to Place the
Appeal in Suspense sought a 90-day extension “pending
the appointment of a personal representative for
[Appellant]” in light of Quarleen Singletary's
death. (Id.) The Motion also claimed Appellant was
“incompetent as the result of numerous mental and
emotional disabilities.” (Id. at
7, 2016, I granted Appellant's Motion to Place the Appeal
in Suspense. I ordered counsel for Appellant to “inform
the court of the status of designation of a representative
for Hilda Singletary on or before Tuesday, October 4,
2016.” (Doc. No. 5) (emphasis in original).
Counsel for Appellant failed to comply with this Order.
Counsel for Appellant did not inform the court of the status
of designation of a representative for Hilda Singletary on or
before October 4, 2016. Indeed, counsel for Appellant has not
done so to this day.
weeks after Appellant was required to inform the court of
Appellant's status, Appellee filed a Motion to Dismiss
the appeal for failure to prosecute. Counsel for Appellant
never filed a response to the Motion to Dismiss. Nor did
counsel for Appellant file any motion for extension of time
to file a response. On November 18, 2016, I held a telephone
conference with counsel concerning the Motion to Dismiss.
the telephone conference, I allowed counsel the opportunity
to file supplemental briefing on the pending Motion to
Dismiss. On December 9, 2016, Appellee filed a brief in
further support of its Motion to Dismiss. Counsel for
Appellant never filed a brief.
exercise of discretion, district courts may dismiss
bankruptcy appeals for failure to prosecute or otherwise
follows procedures. E.g., In re Equivest St.
Thomas, Inc., 537 F. App'x 124 (3d Cir. 2013);
In re Buccolo, 308 F. App'x 574 (3d Cir. 2009).
In assessing whether dismissal for failure to prosecute is
proper, district courts consider several factors. Poulis
v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d
Cir. 1984). These factors are: (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 attorney was willful or
in bad faith; (5) the effectiveness of sanctions other than
dismissal; and (6) the meritoriousness of the claim or
all of the Poulis factors need be satisfied in order
to dismiss a complaint.” Mindek v. Rigatti,
964 F.2d 1369, 1373 (3d Cir.1992). “Instead, the
decision must be made in the context of the district
court's extended contact with the litigant.”