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Pallante v. Those Certain Underwriters At Lloyd's, London

United States District Court, E.D. Pennsylvania

April 30, 2018



          Bartle, J.

         Plaintiff Rossa Pallante filed this action on February 14, 2017 in the Court of Common Pleas of Philadelphia County against her insurer, Those Certain Underwriters at Lloyd's London, for breach of contract for failure to indemnify her for a fire loss to her home and its contents. She also claims that defendant acted in bad faith. After the case was timely removed to this court based on diversity of citizenship, defendant filed an answer denying liability and including a counterclaim. In the counterclaim, defendant alleges that plaintiff committed fraud and seeks rescission, declaratory relief, and damages.

         Before the court is defendant's motion to dismiss plaintiff's complaint for lack of prosecution. The motion was filed and served on March 28, 2018. Plaintiff, now acting pro se, has not filed any opposition to the motion.

         On June 13, 2012, this court granted the motion of Jonathan Wheeler, Esquire, plaintiff's first attorney, to withdraw his appearance. Mr. Wheeler had requested withdrawal “by virtue of her insistence upon pursuing an objective that counsel considers consistently repugnant and imprudent” and because “Pallante has intentionally misused the services of counsel in this matter.” On July 27, 2017 a new attorney, Matthew Weisberg, Esquire, entered his appearance on behalf of plaintiff, but on October 24, 2017, he moved to withdraw on the ground that “professional considerations require termination of the representation.” The court granted his motion on November 21, 2017. On January 3, 2018, the court granted the motion to withdraw of L. Anthony DiJiacomo, III, Esquire, an attorney in Mr. Weisberg's firm.[1] He offered the same reason as did Mr. Weisberg.

         On October 10, 2017, the court scheduled a Rule 16 status conference to be held on October 30, 2017. Because plaintiff's attorney had moved to withdraw his appearance shortly before the conference was to be held, the court rescheduled it for November 28, 2017. On that day, the plaintiff telephoned the court's deputy clerk that she had moved out of Pennsylvania and now resided in Florida. As a result, the court postponed the status conference until January 18, 2018. The court sent a copy of the notice of the January conference to plaintiff at her Florida address. The notice stated that “failure of plaintiff . . . to appear at the conference could result in dismissal of the complaint for failure to prosecute.” Plaintiff failed to appear, and the court proceeded with the conference in her absence. A scheduling order was then entered for the completion of discovery by July 31, 2018.

         On January 18, 2018, the defendant filed a motion to compel plaintiff to provide answers to its interrogatories and provide documents in response to its request for production of documents. The interrogatories and request for production had been served back on October 11, 2017, and plaintiff had neither responded nor objected. On January 19, pursuant to Local Civil Rule 26.1(g), the court ordered plaintiff to provide full and complete responses on or before February 2, 2018. Plaintiff did not comply. On February 2, 2018, the court issued an order scheduling another status conference for February 28, 2018. Plaintiff was required to appear or suffer possible dismissal of the complaint for failure to prosecute.

         On February 3, 2018, plaintiff emailed the court's deputy clerk that she “recently” had taken “a very bad fall causing multiple contusions, multiple left side fractured and broken ribs, injury to my right heel foot, constant pain to my right foot, right wrist[, ] neck, shoulders and upper back.” She did not state the date of the fall. According to her email, her chiropractor did not want her to travel for the next two months. Nothing was said about any inability to produce discovery.

         On February 20, 2018, plaintiff emailed to the court and defense counsel the handwritten note from her chiropractor which stated “no flying for 2 months patient Rossa Pallante.” As a result, on February 21, 2018, the court vacated its February 2, 2018 order and cancelled the February 28, 2018 status conference until further order of the court.

         Plaintiff never stated in her February 20, 2018 communication that her medical issues prevented her from responding to the defendant's interrogatories or other discovery requests. Accordingly, on February 21, 2018, the court granted defendant's unopposed motion for sanctions against plaintiff for failure to comply with the court's January 19, 2018 order to produce her discovery. This order also compelled plaintiff to pay defendant's counsel $500 as a sanction. The court gave plaintiff a second chance to produce full and complete responses to the interrogatories and document requests, this time with a deadline of March 10, 2018. The court warned that if she failed to comply with the February 21, 2018 order, “the court may dismiss this action for lack of prosecution.” Plaintiff has continued to ignore the court's order to this day.

         On March 2, the court further ordered:

1) plaintiff Rossa Pallante shall provide to the court on or before March 19, 2018 a detailed description prepared by and signed by her physician of her medical condition as it impacts her ability to travel from Florida to Philadelphia;
2) plaintiff Rossa Pallante must provide a copy of her physician's statement to defense counsel and copy defense counsel on any correspondence with the court; and
3) the court will not consider Rossa Pallante's statements about her medical condition except as set forth above.

         On March 16, 2018, the plaintiff provided the court with certain additional medical information. She enclosed a February 23, 2018 MRI of her cervical spine and a March 3, 2018 MRI of her wrist. Both explained that she experienced pain as a result of an October 6, 2017 slip and fall. There were also two March 15, 2018 referrals to Neuspine Institute for pain management. She submitted a handwritten note of her chiropractor which stated: “Due to severe pain and recent MRI findings of disc protrusions I do not ...

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