United States District Court, E.D. Pennsylvania
R. SÁNCHEZ, C.J.
Ethan Policastro filed this action pursuant to the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et
seq., against Defendant Kross Lieberman & Stone, Inc.
(Kross). After Kross was served, it failed to appear in this
action. The Court directed Policastro to request the Clerk of
Court enter Kross's default pursuant to Federal Rule of
Civil Procedure 55(a) and to apply for entry of default
thereon pursuant to Rule 55(b). Instead, Policastro moved the
Court for default judgment, which the Court denied for
Policastro's failure to have the Clerk enter Kross's
default. To date, despite additional direction from the
Court, Policastro has taken no further action to litigate
this case. The Court will therefore dismiss this action
without prejudice for failure to prosecute.
October 10, 2018, Policastro filed this case alleging
violations of the FDCPA. On November 6, 2018, Policastro
filed an affidavit of service with the Court asserting Kross
had been served by United States Mail. See Aff. of
Service, Nov. 6, 2018, ECF No. 2. Policastro then took no
action for two months. On January 18, 2019, the Court ordered
Policastro to seek entry of Kross's default by the Clerk
of Court pursuant to Federal Rule of Civil Procedure 55(a),
and to apply for entry of default thereon pursuant to Rule
55(b), on or before February 1, 2019. See Order,
Jan. 18, 2019, ECF No. 3.
February 1, 2019, Policastro filed a motion for entry of
default judgment. See Mot. for Entry of Default J.,
Feb. 1, 2019, ECF No. 5. On April 9, 2019, the Court denied
Policastro's motion without prejudice because he had not
sought entry of default by the Clerk. See Order,
Apr. 9, 2019, ECF No. 6. Policastro again took no action with
regard to seeking the entry of default by the Clerk.
7, 2019, the Court directed Policastro to seek entry of
Kross's default or show cause as to why a request for
default had not been filed on or before June 21, 2019.
See Order, June 7, 2019, ECF No. 7. The Court
informed Policastro that failure to comply with its June 7
Order may result in dismissal of his action for failure to
prosecute. See Id. To date, Policastro has not taken
any further action in regard to this case.
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 necessary, given Policastro's failure to
comply with the Court's Orders or to communicate with the
Court in any way since February 2019. Assuming a
Poulis analysis is required, the Court finds
dismissal is warranted under Poulis.
the first Poulis factor-personal
responsibility-weighs against dismissal. Because Policastro
is represented by counsel, it is unclear the extent that
Polcastro is responsible for the failure to prosecute this
action. See Parks v. Ingersoll-Rand Co., 380
Fed.Appx. 190, 194 (3d Cir. 2010) (finding responsibility
factor weighed against dismissal where there was no evidence
the plaintiff, as opposed to counsel, was personally
responsible for not securing default judgment).
second Poulis factor-the prejudice to Kross-also
weighs against dismissal. Kross has not entered an appearance
or otherwise defended against Policastro's claims.
Furthermore, there is no evidence that Policastro's
failure to prosecute this case has impaired Kross's
ability to prepare a meaningful defense or has imposed
excessive costs on Kross. See Ware v. Rodale Press,
Inc., 322 F.3d 218, 222 (3d Cir. 2003) (affirming
district court's finding that “the burden imposed
by impeding a party's ability to prepare effectively a
full and complete trial strategy is sufficiently
prejudicial” to warrant dismissal); Adams v. Trs.
of N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d
863, 873 (3d Cir. 1994) (“Examples of prejudice include
“the irretrievable loss of evidence, the inevitable
dimming of witnesses' memories, or the excessive and
possibly irremediable burdens or costs imposed on the
opposing party.” (internal quotations omitted)). The
Court therefore weighs this factor against dismissal.
Policastro has displayed a pattern of dilatoriness in this
case, which weighs in favor of dismissal. After initially
serving Kross, Policastro has routinely failed to take
affirmative steps to litigate this case or obtain a default
judgment. On three separate occasions, Policastro has further
failed to comply with Court Orders directing him to request
entry of default from the Clerk. See Adams, 29 F.3d
at 874 (“Extensive or repeated delay or delinquency
constitutes a history of ...