United States District Court, W.D. Pennsylvania
Pupo Lenihan United States Magistrate Judge.
case was filed on October 21, 2016. On June 15, 2018,
Plaintiffs filed a Motion for Default Judgment. That Motion
was denied. ECF No. 144. On July 1, 2019, Plaintiff filed a
Renewed Motion for Default. ECF No. 167. The Motion will be
denied for the reasons set forth below.
case has a somewhat tortured history. Initial counsel for
Defendants missed numerous discovery deadlines and was
generally non responsive. In addition, the case was
reassigned to visiting Judge Ponsor on September 26, 2017. A
Motion to Disqualify Counsel was filed on January 31, 2018.
ECF No. 73. A hearing on both motions was held on February 2,
2018. Judge Ponsor ruled that the Court would not impose
sanctions at that time but any failure to respond to
discovery by April 1, 2018 “may trigger substantial
sanctions, including monetary sanctions, or other relief
including default judgment.” ECF No. 74. A Certificate
of Compliance was filed by Defendant on April 1, 2018. ECF
thereafter, current counsel entered their appearance and
former counsel withdrew. ECF Nos. 79, 80 and 81. The initial
Motion for Default followed on June 15, 2018. The case was
transferred back to the undersigned July 12, 2018. ECF No.
103. The Court conducted a Poulis analysis and,
finding that a majority of the factors weighed in favor of
the Defendant, denied the motion. ECF No. 144.
then, discovery has been ongoing and contentious. The present
motion was filed while a Second Motion to Compel Answers to
Interrogatories and Requests for Admission was pending
against Plaintiffs. This Motion was subsequently granted in
part and denied in part; with all but 2 of the 14 requests to
compel additional and/or satisfactory responses granted in
favor of Defendant. ECF No. 186.
argument forming the basis for the default begins with a
hearing on February 1, 2018 regarding its motion to compel
discovery responses from Defendant. Following this hearing,
new counsel for Defendant promised production but did not
follow through. This caused Plaintiffs to file the first
motion for default. They argue first that as of the date of
filing this Motion, Defendant has not corrected allegedly
false interrogatory responses. Second, at a hearing on March
28, 2018, counsel for Defendant represented that there was no
additional evidence to produce. This was followed by a
production on June 28 of that year of 2, 600 pages of
documents. Plaintiffs aver that a majority of these documents
are “irrelevant order forms.” ECF No. 168 at 10.
They further aver that the production as made in an attempt
to “bulk up” the document production and suggest
good faith compliance when in fact, there was bad faith. In
sum, Plaintiffs rely upon a continued dilatory nature of
Defendant's conduct in renewing their Motion for Default.
counter that Plaintiffs have been every bit as
“dilatory” if not more so, and cite to various
issues in their responsive brief. ECF No. 178. They
importantly point out that there are no pending motions to
compel discovery, nor are there pending orders compelling
discovery that have not been complied with. In addition,
discovery is still open and the Court notes that this is in
part due to the fact that Plaintiffs did not properly respond
to 30(b)(6) questioning and the Court has ordered them to
provide additional written discovery responses. In addition,
Defendant's Motion to Compel Plaintiffs to provide
discovery was recently granted. ECF No. 186.
majority of the conduct complained of in this Motion was
reviewed by the Court when it decided Plaintiffs' first
Motion for Default. That motion was denied, and the reasons
set forth in that opinion are incorporated into this opinion.
ECF No. 145. The Court will not re-entertain those issues at
this time. As to the allegations of dilatoriness in providing
discovery responses since, Plaintiffs have chosen to move
directly into nuclear option of default, while skipping over
the normal preliminary procedures such as motions to compel
discovery. See Poulis v. State Farm Fire & Cas.
Co., 747 F.2d 863, 869 (3d Cir. 1984) (“Dismissal
must be a sanction of last, not first, resort.”). The
Court believes that it could deny this Motion on that basis
alone but will conduct a legal analysis nonetheless.
Third Circuit in Poulis set forth the following six
factors to be weighed in considering whether dismissal is
(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.
Id. at 868 (emphasis omitted). These factors must be
balanced in determining whether dismissal is an appropriate
sanction, although not all need to weigh in favor of
dismissal before dismissal is warranted. Hicks v.
Feeney, 850 F.2d 152 (3d Cir. 1988). In determining
whether a dismissal is warranted, the Court must analyze the
factors in light of the “strong policy favoring
decisions on the merits.” Hildebrand v. ...