United States District Court, E.D. Pennsylvania
se plaintiff Feyez Hanna's case is dismissed due to
his failure to comply with the Court's orders and timely
prosecute his case.
October 2018, Hanna filed a complaint, pro se,
against the Secretary of the United States Department of
Agriculture (“USDA”) and three other USDA
employees, alleging retaliation and discrimination based on
ethnicity and disability. Hanna also requested an attorney,
and the Court referred his case to the Employment Panel.
moved to dismiss in December 2018. The motion was denied. The
parties subsequently held a Rule 26(f) conference on February
25, 2019. The scheduling order set a deadline of May 30, 2019
for the conclusion of fact discovery including fact
depositions of fact witnesses.
March 6, 2019, Hanna secured the services of an attorney, and
the attorney made an appearance on Hanna's behalf later
that month. About two months later, however, Hanna terminated
his attorney due to disagreements about the scope of
discovery-specifically, Hanna's unwillingness to be
moved for a stay or extension of discovery following
Hanna's attorney's termination, and the Court granted
an extension to September 17, 2019. During this time,
Defendants continued attempting to obtain discovery from
Hanna, and, particularly, to schedule a deposition. However,
Hanna did not respond to Defendants' requests. Then, on
August 30, 2019, Hanna himself moved to postpone discovery
and to once again be referred to the Employment Panel. The
Court denied both of his motions, keeping the September 17
discovery deadline in place. Though over a month has passed
since the extended discovery deadline, Hanna has yet to
respond to Defendants' discovery requests or to complete
his own discovery. He also has not responded to the motion at
Rule of Civil Procedure 41(b) allows a court to dismiss an
action “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order.” Such a
dismissal operates “as a dismissal on the merits,
” meaning that dismissal is with prejudice.
See F.R.C.P. 41(b). “A federal trial court is
empowered to dismiss such actions because it must be able to
effectively rid its docket of such cases that interfere with
the ability of diligent litigants to obtain prompt judicial
resolution of their disputes.” Milligan v.
Davidson, 1996 WL 680134, at *7 (E.D. Pa. Nov. 19,
1996). “Failure to prosecute does not require that a
plaintiff take ‘any positive steps to delay trial[;] .
. . ‘[i]t is quite sufficient if he does
nothing.'” Marrero v. Ross, 2019 WL
3833943, at *2 (E.D. Pa. Aug. 15, 2019) (quoting Adams v.
Trustees of New Jersey Brewery Employees' Pension Tr.
Fund, 29 F.3d 863, 875 (3d Cir. 1994)). Though
“the Third Circuit Court of Appeals [has] emphasized
its strong policy favoring decisions on the merits and
cautioned that dismissal with prejudice is an ‘extreme
sanction' and ‘a sanction of last, not first,
resort,' it ‘has not hesitated to affirm . . .
district court[s'] imposition of sanctions, including
dismissals in appropriate cases.'” Id.
(internal quotations omitted).
must determine whether dismissal is appropriate by
considering the six factors set forth in Poulis v. State
Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir.1984).
See, e.g., Herrman v. Allstate Ins. Co.,
450 F.Supp.2d 537, 542 (E.D. Pa. 2006). “None of the
Poulis factors is alone dispositive, and . . . not
all of the factors need to be satisfied to justify dismissal
of a complaint for lack of prosecution.” Hildebrand
v. Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019). The
(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, 747 F.2d at 868.
first factor assesses a “party's personal
responsibility, ” as opposed to the party's
attorney's responsibility. The purpose of this analysis
is to avoid penalizing a party for his attorney's
“acts or omission.” Id. Here, Hanna has
primarily represented himself pro se, and there is
no indication that his former attorney was less than diligent
in his representation. In fact, by Hanna's own admission,
his former attorney attempted to schedule a deposition, which
Hanna himself refused to attend. See In re Alloui,
2019 WL 5061086, at *2 (E.D. Pa. Oct. 8, 2019) (explaining
that responsibility for any failure to prosecute fell on
plaintiff because he had proceeded pro se).
second factor-“prejudice to the
adversary”-“includes deprivation of information
through non-cooperation with discovery.”
Milligan, 1996 WL 680134, at *7; see also
Poulis, 747 F.2d at 868 (citing party's failure to
answer interrogatories and answer objections as prejudicial
to adversary); Lurwick v. Lehigh Valley Health Network,
Inc., 2019 WL 2060070, at *4 (E.D. Pa. May 9, 2019).
Hanna's repeated refusal to answer Defendants'
discovery requests has impaired their ability to prepare
their defense. For example, in addition to refusing to be
deposed, Hanna has refused to produce medical records
relating to his stated disability; without such discovery,
Defendants have been unable to properly assess the strength
of Hanna's claims related to his disability.
Hanna has a “history of dilatoriness.”
Id. As noted, Hanna has repeatedly refused
Defendants' discovery requests. Fourth, Hanna's
actions have been willful. Hanna himself admitted in filings
to the Court that he refused his attorney's and
Defendants' attempts to schedule a deposition. See In
re Alloui, 2019 WL 5061086, at *2 (interpreting failure
of pro se plaintiff to obey court orders as
“willful” where plaintiff did not comply with
the fifth factor-the “effectiveness of sanctions other
than dismissal”-courts have typically considered the
imposition of costs or attorney's fees as alternatives to
dismissal. However, “[w]hen a Plaintiff fails to
prosecute his action, outside of dismissal of the
action” it is difficult to “envision a[n
alternative] sanction that would be appropriate.”
Lurwick., 2019 WL 2060070, at *5 (quoting
Briscoe v. Klaus, 538 F.3d 252, 262 (3d Cir. 2008)).
This is particularly true where a plaintiff is proceeding
pro se and there is no attorney to sanction for
noncompliance. See Id. Courts have also declined to
impose monetary sanctions as an alternative to dismissal
where “the imposition of such sanctions would undermine
the purpose behind a federal trial court's authority to
dismiss actions for failure to prosecute, ” for