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Vorn v. Brennan

United States District Court, E.D. Pennsylvania

June 27, 2017



          R. BARCLAY SURRICK, J.

         Presently before the Court is Defendant's Motion to Dismiss for Failure to Prosecute. (ECF No. 11.) For the following reasons, Defendant's Motion will be denied.

         I. BACKGROUND

         This matter involves the requested dismissal of claims that have, until recently, been dormant for several years. Plaintiff Crystal Vorn ("Plaintiff or "Vorn") alleges that she was discriminated against as an employee of the United States Postal Service. She alleges that she was forced to work on Saturdays and was forced to work ten (10) hour days while male employees were not forced to work Saturdays and were not forced to work ten (10) hour days. Defendant Postmaster General of the United States, Megan Brennan ("Defendant" or "Brennan"), does not contest these allegations in this Motion. Rather, Defendant argues that because Plaintiff failed to diligently pursue an action before the EEOC while the instant case sat in suspense for more than three years, the instant action should be dismissed for failure to prosecute.

         A. The EEOC Actions

         On March 8, 2010, Plaintiff filed a complaint with the EEOC.[1] (Mot. to Dismiss 2.) The Complaint alleged that as Postmaster of the Gladwyne Post Office in 2009, Plaintiff was required to work on Saturdays and was forced to forfeit earned annual leave. (Id. at 2-3.) On March 11, 2011, the Postal Service filed a motion for a decision without a hearing. (Id. at 3.) Plaintiff did not submit opposition to the motion. (Id.) On September 4, 2012, an EEOC Administrative Judge issued an order entering judgment in favor of the Postal Service due to Plaintiff's failure to present a prima facie claim of gender discrimination or discriminatory harassment. (Id.) On December 12, 2012, after receiving a Notice of Right to Sue from the EEOC, Plaintiff filed a Complaint in this Court. (Compl., ECF No. 1.)

         On February 9, 2011, before Plaintiff filed her Complaint in this Court, Plaintiff filed a second complaint with the EEOC that raised issues similar to those in the first EEOC complaint. (Mot. to Dismiss 3, ECF No. 11.) On March 14, 2012, Olugbenga Abiona, Esq. entered an appearance on behalf of Plaintiff and on April 16, 2012, Abiona sent a request for the deposition of several of Defendant's employees. (Id.) On May 16, 2012, Defendant's counsel provided Plaintiff's counsel with proposed deposition dates, and followed up with Plaintiff's counsel on June 4, 2012, with regard to the deposition dates. (Id.) On August 24, 2012, the Administrative Judge dismissed the second EEOC complaint without prejudice for a period of three months in order to provide Plaintiff's counsel three months to take the requested depositions. (Id.)

         Between January 8, 2013 and January 22, 2013, counsel for Plaintiff and Defendant exchanged a series of emails discussing the deposition dates. (Id.) Defendant claims that after January 22, Plaintiff's counsel no longer responded to Defendant's emails. (Id. at 4.) As a result, Defendant filed a motion for a decision without a hearing on July 2, 2013. (Id.) The parties dispute the series of events that took place thereafter: Defendant contends that after January 22, Plaintiff's counsel did not communicate with the Postal Service, and also failed to correspond with the Administrative Judge. (Id.) Defendant also contends that Plaintiff's counsel never took steps to schedule the witness depositions. (Id.) Plaintiff's counsel argues that Defendant's counsel was called in an attempt to schedule depositions, but did not respond with specific dates for each witness. (Resp. to Mot. to Dismiss 4.) Plaintiff's counsel also contends that he periodically contacted the EEOC to check the status of the July 2 motion. (Id.) Notwithstanding these disagreements, it is undisputed that the Administrative Judge never ruled on the July 2 motion.

         B. Procedural History

         On February 19, 2013, Defendant filed a motion to place the December 12, 2012 action in suspense. (ECF No. 4.) We granted the Motion. (Id.) On September 21, 2016, Plaintiff requested that the Administrative Judge dismiss the second EEOC action. (Resp. to Mot. to Dismiss Ex. D.) On November 1, 2016, the Administrative Judge granted the request and dismissed the complaint. (Id. Ex. E.) On November 11, 2016, Plaintiff requested that this Court remove the case from suspense. Plaintiff's request was granted on November 17, 2016. (Order, ECF No. 6.)

         On November 29, 2016, Plaintiff filed an Amended Complaint. (ECF No. 7.) On January 30, 2017, Defendant filed an Answer to the Amended Complaint (ECF No. 10), as well as the instant Motion to Dismiss for Failure to Prosecute. (Mot. to Dismiss.) On February 10, 2017, Plaintiff filed a Response to Defendant's Motion to Dismiss. (Pl.'s Resp. ECF No. 12.) Defendant filed a Reply on February 17, 2017. (Def.'s Reply, ECF No. 13.)


         Under Federal Rule of Civil Procedure 41(b), “[i]f 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.” Fed.R.Civ.P. 41(b). “The power to dismiss for failure to prosecute . . . rests in the discretion of the trial court and is part of its inherent authority to prevent undue delays in the disposition of pending cases and to avoid congestion in its docket.” Hewlett v. Davis, 844 F.2d 109, 114 (3d Cir. 1988) (citing Link v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962)). However, “[d]ismissal of an action is a sanction of last resort.” New-Howard v. JP Morgan Chase Bank, NA, 660 F. App'x 144, 148 (3d Cir. 2016) (citation omitted); see also Knoll v. City of Allentown, 707 F.3d 406, 409 (3d Cir. 2013) (“[D]ismissals with prejudice are drastic sanctions” (citation omitted)). Nevertheless, “where a plaintiff's actions amount to the willful refusal to prosecute or blatant failure to comply with a district court order, dismissal for failure to prosecute is appropriate.” Roberts v. Ferman, 826 F.3d 117, 123 (3d Cir. 2016) (citations omitted).

         The Third Circuit has mandated that courts apply the following factors to evaluate whether dismissal for failure to prosecute is warranted:

(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 the attorney 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 v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). In balancing the Poulis factors, there is no “magic formula” or “mechanical calculation.” Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). Furthermore, “no single Poulis factor is dispositive, ” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003), and “not all of the Poulis factors need be satisfied in order to dismiss a complaint.” Mindek, 964 F.2d at 1373 (citation omitted). “The power of the court to prevent undue delays and to achieve the orderly disposition of cases must be weighed against the policy of law which favors disposition of litigation on its merits.” Marshall v. Sielaff, 492 F.2d 917, 918 (3d Cir. 1974). “While consideration of the Poulis factors can help strike that balance, ‘[n]o precise rule can be laid down as to what circumstances justify a dismissal for failure to prosecute, but the procedural history of each case must be examined in order to make that determination.'” In re Asbestos Prod. Liab. Litig. (No. VI), 718 F.3d 236, 246 (3d Cir. 2013) (quoting Marshall, 492 F.2d at 918).


         Defendant claims that since Plaintiff's conduct satisfies the Poulis factors, the Amended Complaint should be dismissed. Plaintiff argues that Defendant's motion lacks merit, because Plaintiff has neither failed to prosecute her ...

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