United States District Court, M.D. Pennsylvania
E. Schwab Chief United States Magistrate Judge
case, which arises from an alleged breach of an agreement for
the purchase of a long-haul tractor-trailer, is currently in
the discovery phase of litigation. As part of the discovery
process, counsel for the defendants wrote a letter to the
court regarding the plaintiffs' alleged failure to
respond to the defendants' discovery requests. We issued
numerous orders for the plaintiffs to respond to that letter,
none of which elicited any response from the plaintiffs.
Given the plaintiffs' failure to respond, we issued an
order for the plaintiffs to show cause as to why the case
should not be dismissed for their failure to abide by court
orders and failure to respond to the defendants' letter.
The plaintiffs have not responded to the order to show cause.
Accordingly, this case will be dismissed pursuant to Rule
41(b) of the Federal Rules of Civil Procedure.
Background and Procedural History.
plaintiffs, Joseph Nebroskie ("Nebroskie") and HSF
Transportation LLC ("HSF"), initiated this case by
filing a complaint on March 13, 2018 in the United States
District Court for the Eastern District of Pennsylvania.
Doc. I. The complaint names as defendants Ameriline
Trucking Incorporated ("Ameriline"), Igor Yusupov
("Yusupov"), and Halyna Zabronska
("Zabronska"). Id. at 1. According to the
complaint,  Nebroskie responded to a Craislist posting
in 2016 advertising the sale of a tractor-trailer.
Id. ¶¶ 23-24. Following from that initial
contact, Nebroskie agreed to purchase the truck from
Ameriline through a lease-to-own purchase agreement.
Id. ¶¶ 24-27. Nebroskie took possession of
the truck in August 2016 and subsequently made all required
payments. Id. ¶¶ 35-42. Nebroskie then
requested that title to the truck be turned over to him.
Id. ¶ 43. Instead of turning over title to the
truck, however, the defendants reported the truck stolen and
had Nebroskie arrested. Id. ¶¶ 46-53.
April 26, 2019, the case was transferred from the Eastern
District to this district on motion from the defendants.
See doc. 32. Following the transfer, the defendants
filed an answer to the complaint on May 17, 2019. Doc.
34. The parties subsequently consented to the
jurisdiction of a United States Magistrate Judge, and the
case was reassigned to the undersigned. Doc. 40. We
conducted a case management conference with the parties and
issued a case management order to govern the discovery
process. See doc. 43.
September 20, 2019, counsel for the defendants wrote a letter
to the court stating that the defendants had made numerous
requests for discovery from the plaintiffs and that the
plaintiffs had repeatedly failed to respond to those
requests. Doc. 44. The defendants requested a
telephonic status conference with the court to discuss the
plaintiffs' failure to respond. Id. On September
24, 2019, we issued an order requiring the plaintiffs to
respond to the defendants' letter on or before October 7,
2019. Doc. 45. Having not received a response from
the plaintiffs, we issued a second order on October 16, 2019
requiring the plaintiffs to respond on or before October 22,
2019. Doc. 46. The plaintiffs again failed to
respond to the defendants' letter, so we issued a third
order on October 23, 2019 requiring the plaintiffs to show
cause on or before October 30, 2019 for their failure to
abide by court orders and failure to respond to the
defendants' letter. Doc. 47. When the plaintiffs
still did not respond, the defendants filed a letter
requesting that this case be dismissed, or, alternatively,
that the court impose sanctions on the plaintiffs for their
continued failure to respond. Doc. 48. On November
1, 2019, we issued an order requiring the plaintiffs to show
cause on or before November 15, 2019 as to why the case
should not be dismissed for their failure to prosecute their
case and failure to abide by court orders. Doc. 49.
To date, the plaintiffs have not responded to that order, nor
have they responded to any of the previous three court orders
or the defendants' letter.
plaintiff fails to prosecute a case or to comply with court
rules or court orders, the court may dismiss the action
pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure. "'[Dismissals with prejudice or defaults
are drastic sanctions' that 'must be a sanction of
last, not first, resort.'" Hildebrand v.
Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019)
(quoting Poulis v. State Farm Fire & Cas.
Co., 747 F.2d 863, 867, 869 (3d Cir. 1984)). Decisions
regarding dismissal of actions for failure to prosecute rest
in the sound discretion of the district court and will not be
disturbed absent an abuse of that discretion. Id.
(citing Briscoe v. Klaus, 538 F.3d 252, 257 (3d Cir.
2008)). But that discretion, while broad, is governed by the
following factors, commonly referred to as Poulis
factors, which the court must balance in deciding whether to
dismiss a case:
(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 (emphases in original). No.
single factor is dispositive, Briscoe, 538 F.3d at
263, and each factor need not be satisfied for the court to
dismiss an action, Ware v. Rodale Press, Inc., 322
F.3d 218, 221 (3d Cir. 2003). In this case, an assessment of
the Poulis factors weighs in favor of dismissal.
first Poulis factor is the extent of the party's
personal responsibility. While the failure to respond is
largely the responsibility of the plaintiffs' counsel
rather than the plaintiffs themselves, "[a] party may
suffer dismissal justly because of its counsel's
conduct." Cox v. UPS, No. 15-CV-02013, 2017 WL
3189022, at *4 (M.D. Pa. July 26, 2017) (citing Adams v.
Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29
F.3d 863, 873 (3d Cir. 1994)). "Plaintiff here
'voluntarily chose this attorney as his representative in
the action and he cannot now avoid the consequences of the
acts or omissions of this freely selected agent. Any other
notion would be wholly inconsistent with our system of
representative litigation, in which each party is deemed
bound by the acts of his lawyer-agent and is considered to
have notice of all facts, notice of which can be charged upon
the attorney.'" Id. (quoting Link v.
Wabash R. Co., 370 U.S. 626, 633-34 (1962)). Even if
plaintiffs bear no responsibility for the actions of their
attorneys, such "lack of responsibility for their
counsel's dilatory conduct is not dispositive, because a
client cannot always avoid the consequences of the acts or
omissions of its counsel." Wallace ex rel. Wallace
v. Novartis Pharm. Corp., 984 F.Supp.2d 377, 386 (M.D.
Pa. 2013) (quoting Poulis, 747 F.2d at 868).
Nevertheless, given that the failure to respond to the
defendants' letter and failure to abide by court orders
is largely the responsibility of plaintiffs' counsel, we
find that the first Poulis factor does not weigh
heavily in favor of dismissal.
second Poulis factor is prejudice to the adversary.
Relevant examples of prejudice include 'the irretrievable
loss of evidence and the inevitable dimming of witnesses'
memories." Hildebrand, 923 F.3d at 134
(alterations omitted) (quoting Scarborough v.
Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). "The
bar is not so high that a party needs to show
'irremediable harm' for the prejudice to weigh in
favor of dismissal." Id. (quoting
Ware, 322 F.3d at 222). In this case, the
plaintiffs' failure to respond to court orders and
failure to litigate their case frustrates and delays
resolution of his action, and such failure can be seen to
prejudice the defendants, who seek a timely resolution of the
third Poulis factor is a history of dilatoriness.
"Extensive or repeated delay or delinquency constitutes
a history of dilatoriness." Id. at 135
(alterations omitted) (quoting Adams v. Trs. of N.J.
Brewery Emps. 'Pension Tr. Fund,29 F.3d 863, 874
(3d Cir. 1994)). "Normally, 'conduct that occurs one
or two times is insufficient to demonstrate a history of
dilatoriness.'" Id. (quoting
Briscoe, 538 F.3d at 261). "[A] party's
problematic acts must be evaluated in light of [the
party's] behavior over the life of the case."
Adams, 29 F.3d at 875. In this case, the plaintiffs
have a history of dilatoriness. The plaintiffs have failed to
respond to the defendants' discovery requests for over
four months. See doc. 44 at 1 (representing that the
defendants first made ...