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Loper v. Pendolino

United States District Court, W.D. Pennsylvania

October 30, 2019

MATT L. LOPER, Plaintiff
v.
SAMUEL VINCENT PENDOLINO, Defendant

          SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         It is hereby recommended that this action be dismissed due to Plaintiff's failure to prosecute.

         II. REPORT

         Plaintiff initiated this civil rights action on July 2, 2019, by filing a motion for leave to proceed in forma pauperis (“IFP”). In lieu of a civil complaint, Plaintiff submitted two exhibits: a document styled a “private criminal complaint” that he had previously mailed to the Office of the District Attorney in Meadville, Pennsylvania, and a response letter from the district attorney informing him that his private criminal complaint had been rejected. ECF No. 1. Plaintiff did not identify any legal claims, requests for relief, or supply any sort of factual narrative to explain the relevance of those documents.

         On July 26, 2019, this Court denied Plaintiff's IFP motion because it was not accompanied by a complaint. ECF No. 2. The Court ordered him to file a civil complaint on or before August 26, 2019, and provided him with guidance as to the appropriate format and content of a civil complaint. Plaintiff failed to respond.

         On September 5, 2019, the Court issued an order directing Plaintiff to show cause as to his failure to comply with the Court's previous order or otherwise take the necessary first steps to initiate a civil action. ECF No. 3. That order was mailed to Plaintiff at his address of record on the same date. The Court explicitly warned Plaintiff that failure to respond on or before September 20, 2019, would result in a recommendation that this matter be dismissed for failure to prosecute. Id. Plaintiff again failed to respond.

         The Court of Appeals for the Third Circuit has set out a six-factor balancing test to guide a court in determining whether a case or claim should be dismissed for failure to prosecute. See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must consider: 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 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. There is no “magic formula” or “mechanical calculation” to determine whether a case should be dismissed for failure to prosecute, Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992), and not all of the six factors need to weigh in favor of dismissal before dismissal is warranted. Hicks v. Feeney, 850 F.2d 152 (3d Cir. 1988). Rather, the court must “properly consider and balance” each of the six factors based on the record. See Hildebrand v. Allegheny County, -- F.3d --, 2019 WL 1783540, at *3 (3d Cir. Apr. 24, 2019) (citing Poulis, 747 F.2d at 868).

         As recently emphasized by the Court of Appeals, “dismissal with prejudice is an ‘extreme' sanction” that should be employed as a “last, not first, resort.” Hildebrand, 2019 WL 1783540, at *3 (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). Close calls should “be resolved in favor of reaching a decision on the merits.” Id. (citing Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994)). Nevertheless, the Court of Appeals “has not hesitated to affirm the district court's imposition of sanctions, including dismissals in appropriate cases.” Id. (citing Poulis, 747 F.2d at 867 n. 1).

         Turning to the first Poulis factor, the Court must consider the extent to which the dilatory party is personally responsible for the sanctionable conduct. See Adams, 29 F.3d at 873 (“[I]n determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal.”). Since the filing of this matter, Plaintiff has taken none of the necessary first steps to pursue his claims and has ignored multiple orders of this Court directing him to take various steps to prosecute this action. Because Plaintiff is proceeding pro se, he is solely responsible for his own conduct, including his failure to respond to orders from the Court. See, e.g., Colon v. Karnes, 2012 WL 383666, at *3 (M.D. Pa. Feb. 6, 2012) (“Plaintiff is proceeding pro se, and thus is responsible for his own actions.”). This factor weighs heavily in favor of dismissal.

         The second Poulis factor assesses whether the adverse party has suffered prejudice because of the dilatory party's behavior. Relevant concerns include “the irretrievable loss of evidence, the inevitable dimming of witnesses' memories[, ] the excessive and possibly irremediable burdens or costs imposed on the opposing party, ” Adams, 29 F.3d at 874, and “the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). Although this factor does not weigh heavily here, the Court notes that Plaintiff's “continued failure to communicate with the Court and continued inaction frustrates and delays resolution of this action” by preventing the unserved defendant from receiving notice of this lawsuit and seeking a timely resolution of Plaintiff's claims. See Mack v. United States, 2019 WL 1302626, at *1 (M.D. Pa. Mar. 21, 2019) (“[F]ailure to communicate clearly prejudices the Defendants who seek a timely resolution of the case.”).

         The third Poulis factor weighs strongly in favor of dismissal. At this point, Plaintiff has failed to engage with the Court or take any steps to pursue his claims for almost four months. Despite being warned that failure to comply with orders from the Court would result in a recommendation that this matter be dismissed for failure to prosecute, Plaintiff failed to respond to any of the Court's orders. See ECF Nos. 2, 3. This conduct is sufficient to establish a history of dilatoriness. See Mack, 2019 WL 1302626, at *2 (“Mack has established a history of dilatoriness through his failure to notify the Court of his whereabouts and failure to comply with Court Orders and rules.”).

         With respect to the fourth Poulis factor, “[w]illfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 874. While it is difficult to evaluate willfulness on the limited record available, there is nothing on the docket to suggest that Plaintiff is not receiving the Court's orders, nor has he offered any explanation for his repeated failures to respond. Under such ...


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