United States District Court, E.D. Pennsylvania
R. SÁNCHEZ, C.J.
Plaintiff Maribel Cubero filed this action against Defendant
PBM, CMSI of Philadelphia (PBM), alleging PBM discriminated
against her in violation of Title VII of the Civil Rights Act
of 1964. Cubero later informed the Court she had retained an
attorney, but the attorney never entered his or her
appearance in this action. After Cubero was granted several
extensions to have her attorney appear or proceed pro se, she
has not complied with this Court's orders. As a result,
the Court will dismiss this action for failure to prosecute.
November 11, 2018, Cubero filed this action against PBM
alleging sexual harassment, hostile work environment, and
retaliation. Because Cubero appeared pro se, the Court
referred this case to the Attorney Panel for Pro Se
Plaintiffs in Employment Cases and placed the case in
suspense on November 19, 2018. The Court received notice that
Cubero had retained counsel and, on November 26, 2018,
removed the case from suspense.
December 17, 2018, PBM filed a motion to dismiss. By that
time Cubero's attorney had not entered his or her
appearance. On December 19, 2018, and on May 30, 2019, the
Court ordered Cubero to advise the Court whether she had
obtained counsel, wanted to be re-referred to the attorney
panel, or wanted to proceed pro se. On June 20, 2019, Cubero
informed the Court she hired a new attorney. The Court then
ordered Cubero to cause her attorney to appear by July 22,
2019. The Court issued an order on October 24,
2019, granting a final extension and directing Cubero to file
written notice with the Court of whether she intended to have
her attorney appear or proceed pro se by November 4, 2019. To
date, no attorney has appeared on behalf of Cubero, and
Cubero has not complied with this Court's July 12, 2019,
and October 24, 2019, Orders.
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 Cubero's failure
to respond to the Court's orders or to communicate with
the Court in any way since June 20, 2019, when she informed
the Court she had retained an attorney. Even assuming a
Poulis analysis is required, four factors weigh in
favor of dismissal.
the entirety of this action, Cubero appears to have proceeded
pro se and her failure to comply with the Court's orders
is attributable only to her. See Briscoe v. Klaus,
538 F.3d 252, 258 (3d Cir. 2008) (stating pro se plaintiff is
responsible for his or her own failure to comply with
court's orders). Although Cubero informed the Court she
had retained an attorney, no attorney has appeared on record
as of this date. Because an attorney has not yet appeared, it
is unlikely the failure to comply with the Court's orders
can be attributable to the attorney. PBM has experienced some
prejudice because the Court delayed ruling on its motion to
dismiss without Cubero's attorney. Further, this case has
been prolonged awaiting Cubero's compliance and PBM has
been unable to proceed to discovery. See Id. at 259
(noting defendants experience prejudice when they are unable
to retrieve evidence for discovery and when there may be a
“dimming of witnesses' memories”).
history of dilatoriness includes her failure to comply with
two court orders directing her to inform the Court of how she
wishes to proceed in this action. Also, Cubero failed to
comply with this Court's December 19, 2018, Order, before
she responded to the Court's May 30, 2019, Order.
Regarding sanctions, this is not a case in which alternative
sanctions such as fines, costs, or attorneys' fees are
available, given Cubero appears pro se and the Court has
noted that failure to comply with an order would result in
dismissal of the action.
remaining factors are neutral. There is no evidence
Cubero's conduct is willful to the extent it warrants
this factor weighing in favor of dismissal. See Id.
at 262 (stating district courts must determine whether
conduct “was the type of willful or contumacious
behavior which was characterized as flagrant bad faith”
(internal citations and quotation marks omitted)). As to the
final factor, the Court can only determine the merits of
Cubero's claims through the allegations in her Complaint.
that “not all of the Poulis factors need be
satisfied in order to dismiss a complaint, ” Mindek
v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992), because
Cubero's failure to comply with the Court's orders
have stalled the ...