United States District Court, E.D. Pennsylvania
DONELL PATRICE BRANTLEY, SR., et al.
AMERICAN STAR BOOKS/PUBLISH AMERICA, et al.
R. Sánchez, C.J.
Plaintiffs Donell Patrice Brantley, Sr. and Tyrone Taylor
Benn filed this action pursuant to 42 U.S.C. § 1983
seeking royalties and damages against Amazon because it sold
Brantley's book without permission. After Amazon was
served, it failed to appear in this action, and Plaintiffs
sought default judgment. The Court denied default judgment
and expressed doubt as to Plaintiffs' § 1983 claim
against Amazon-a private entity, and the Court's
jurisdiction. The Court ordered Plaintiffs to file amended
complaint stating the Court's personal jurisdiction over
Amazon, the Court's subject matter jurisdiction over the
action, the specific cause of action, and the facts
underlying the cause of action. Because Plaintiffs have not
filed an amended complaint to date, the Court dismisses this
action with prejudice for failure to prosecute.
filed this action against Defendants American Star
Books/Publish America (American Star), Director of American
Star Books Jackie Velnosky, and Amazon Corporation (Amazon).
This action arises out of American Star's agreement to
publish Brantley's book, The Symbol: The Extra
Footage. Brantley alleges after American Star published
his book, it “severed all ties” with him and
“refused to pay him royalties” but continued
distributing his work to third parties, like Amazon. Compl.
3. Plaintiffs seek royalties and damages in the amount of
$11, 500, 000.00.
November 1, 2017, the Court issued an Order granting
Plaintiffs' applications to proceed in forma pauperis and
ordered the Clerk of Court to serve written waiver requests
on Defendants to effectuate service. The Order further stated
that if Defendants failed to submit a signed waiver within
the time permitted, the Clerk of Court would issue summonses
and transmit them and a copy of the Complaint to the United
States Marshals Service for immediate service pursuant to
Federal Rule of Civil Procedure 4(c). Defendants failed to
waive service, and on November 17, 2017, the summonses were
forwarded to the Marshals Service.
1, 2018, the Clerk's Office updated the docket to show
that Amazon had been served on April 4, 2018. Plaintiffs
filed a request for entry of default against all three
Defendants on June 13, 2018, and the Clerk entered
Amazon's default that same day. Plaintiffs filed a
Request for Judgment on August 29, 2018, seeking $11, 500,
000.00 in damages. In November 2018, Plaintiff Benn filed a
notice of his change of address. On January 17, 2019,
Plaintiffs filed a notice that the summonses for American
Star Books/Publish America and Jackie Velnosky were returned
February 5, 2019, the Court ordered Plaintiffs to show cause
why the action should not be dismissed for failure to serve
as to Defendants American Star and Velnosky. See
Order, Feb. 5, 2019, ECF No. 34. Plaintiffs filed no response
to this Order. Because American Star and Velnosky were not
served, and Plaintiffs failed to provide the Marshals Service
with the information to effectuate service, the Court issued
an Order dismissing the claims against those two Defendants
for failure to serve. See Order, May 13, 2019, ECF
No. 36. Thus, the Request for Judgment remained solely
September 24, 2019, the Court denied Plaintiffs' Request
for Judgment and ordered Plaintiffs to file an amended
complaint within 30 days. See Order, Sept. 24, 2019,
ECF No. 37. The Court directed Plaintiffs to include in the
amended complaint explicit statements regarding (1) the
Court's personal and subject matter jurisdiction over
Amazon and the claims against Amazon, (2) the specific cause
of action against Amazon, and (3) specific facts underlying
Amazon's liability. See Order, Sep. 24, 2019,
ECF No. 37. To date, Plaintiffs have not filed an amended
complaint in compliance with the Court's Order.
Rule of Civil Procedure 41 permits a court to dismiss an
action “[i]f the plaintiff fails to prosecute or to
comply with th[e] [Federal Rules of Civil Procedure] or a
court order.” Fed.R.Civ.P. 41(b); see also Link v.
Wabash R.R. Co., 370 U.S. 626, 630 (1962) (holding Rule
41(b) does not “abrogate the power of courts, acting on
their own initiative, to clear their calendars of cases that
have remained dormant because of the inaction or dilatoriness
of the parties seeking relief”). Ordinarily, before
dismissing a case as a sanction for a party's litigation
conduct, a court is required to evaluate the factors
identified by the Third Circuit in Poulis v. State Farm
Fire & Cas. Co.:
(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.
747 F.2d 863, 868 (3d Cir. 1984) (emphasis omitted).
“When a litigant's conduct makes adjudication of
the case impossible, however, such balancing under
Poulis is unnecessary.” Jones v.
N.J. Bar Ass'n, 242 Fed.Appx. 793, 794 (3d Cir.
2007); see also McLaren v. N.J. State Dep't of
Educ., 462 Fed.Appx. 148, 149 (3d Cir. 2012).
questionable whether an analysis of the Poulis
factors is required in this case, given Plaintiffs'
failure to respond to the Court's Orders or to
communicate with the Court in any way since January 2019,
when Plaintiffs filed the unexecuted summonses against
American Star and Velnosky. Even assuming a Poulis
analysis is required, five factors weigh in favor of
Poulis factors-the extent of Plaintiffs'
personal responsibility, a history of dilatoriness,
willfulness/bad faith, effectiveness of alternative
sanctions, and the merit of Plaintiffs' claims-weigh in
favor of dismissal. First, throughout the entirety of this
action, Plaintiffs have proceeded pro se and their failure to
comply is attributable only to them. Second, it has been more
than two years since Plaintiffs filed this action and more
than nine months since they made any communication with the
Court. Plaintiffs have failed to comply with two Court orders
requesting them to show cause why two Defendants should not
have been dismissed for failure to serve or to file an
amended complaint as to Amazon. As to willfulness,
Plaintiffs' filing of their Request for Judgment and
change of address suggests they have received the Court's
notices and any failure to respond is purposeful. Fourth,
this is not a case in which alternative sanctions such as
fines, costs, or attorneys' fees are available, given
Plaintiffs' in forma pauperis status. Finally, the Court
expressed doubt in its September 24, 2019, ...