United States District Court, E.D. Pennsylvania
OPINION DEFENDANT PELLA CORP.'S MOTION TO
DISMISS, ECF NO. 4 - GRANTED AS UNOPPOSED
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
Edward Melhem commenced this action in the Court of Common
Pleas of Lehigh County in January 2018 by filing a Writ of
Summons naming Pella Corporation and Gunton Corporation as
Defendants. See Notice of Removal Ex. B, ECF No. 1.
Melhem subsequently filed a Complaint against Pella and
Gunton in March 2018. See Notice of Removal Ex. A.
In the Complaint, Melhem alleges that in December 2012 he
purchased a property in which Pella windows and doors had
been installed. Compl. ¶¶ 6-10. He alleges that
“[f]ollowing his purchase, [he] observed window and
door leakage due to the significant rotting seen in the
windows/doors, ” which, “upon inspection, ”
he believes was caused by defects in the windows and doors.
Compl. ¶¶ 11-13.
removed the case to this Court on May 11, 2018. Ten days later,
on May 21, Pella filed the present motion to dismiss
Melhem's Complaint for failure to state a claim,
contending that it is clear from the face of the Complaint
that Melhem's claims were filed well beyond
Pennsylvania's two-year statute of limitations for
product defect claims and that, moreover, his claims have
been abolished by Pennsylvania's twelve-year statute of
repose for construction defects. Pella Mot. Dismiss, ECF No.
failed to respond to Pella's motion within the fourteen
days, as required by Local Rule of Civil Procedure 7.1(c). On
July 2, 2018, this Court entered an order directing Melhem to
file a response to Pella's motion no later than July 9,
2018, and stating that if he failed to do so, Pella's
motion might be granted as uncontested without further notice
under Local Rule 7.1(c). See E.D. Pa. Local R. Civ.
P. 7.1(c) (“In the absence of timely response, [a]
motion may be granted as uncontested except as provided under
Fed.R.Civ.P. 56.”). Melhem again failed to file a
Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir.
1991), the United States Court of Appeals for the Third
Circuit held that a motion to dismiss should not be granted
simply because it is unopposed. However, the court did not
preclude dismissal based upon an unopposed motion after
We do not suggest that the district court may never rely on
the local rule to treat a motion to dismiss as unopposed and
subject to a dismissal without a merits analysis. There may
be some cases where the failure of a party to oppose a motion
will indicate that the motion is in fact not opposed,
particularly if the party is represented by an attorney and
in that situation the rule may be appropriately invoked. Nor
do we suggest that if a party fails to comply with the rule
after a specific direction to comply from the court, the rule
cannot be invoked.
who is represented by counsel, has now had fifty-one days to
respond to Pella's motion to dismiss and, as discussed
above, was advised by the Court's July 2, 2018 order that
failure to file a response to Pella's motion could result
in dismissal under Local Rule 7.1(c). As no response has been
filed, “[i]t thus appears that [Melhem] no longer
wishes to pursue this action.” See Biddle v.
Grandview Hosp., No. CIV.A. 14-06614, 2015 WL 3536595,
at *2 (E.D. Pa. June 5, 2015) (dismissing as uncontested a
motion to dismiss against a represented party). “The
district courts may sua sponte grant a motion as
uncontested.” Id.; see Kabacinski v. Bostrom
Seating, Inc., 98 Fed.Appx. 78, 82 n.4 (3d Cir. 2004)
(“Local Rule 7.1(c) does not require a motion to grant
another motion as uncontested.”). Due to Melhem's
failure to oppose Pella's motion to dismiss, the Court
grants the motion as unopposed without a merits analysis.
See Kabacinski, 98 Fed.Appx. at 82
(“If Kabacinski missed this new deadline, Local Rule
7.1(c) gave the District Court the power to grant
Bostrom's motion as uncontested.”); see
also Fed. R. Civ. P. 41(b) (“If 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.”). A separate order follows.
 Pella states that it has no record or
information that Gunton has been served with the Complaint,
and Melhem has not filed an Affidavit of Service as to
 Pella points out that the deed
attached to Melhem's Complaint reflects that the prior
deed involving the builder (from whom Melhem purchased the
property) was dated December 16, 2004, and recorded January
26, 2005. On this basis, Pella contends that it is
“apparent that construction of the subject residence
was complete, including installation of the windows, by
December 2004, ” and that, pursuant to
Pennsylvania's twelve-year ...