Domenic Tricome v. eBay, Inc., et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, COWEN and FUENTES, Circuit Judges. Total Pages: 4.

Case: 16-2710

Document: 003112571279

Page: 1

Date Filed: 03/23/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2710
___________
DOMENIC TRICOME,
Appellant
v.
EBAY, INC.; BARACK OBAMA
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:15-cv-05614)
District Judge: Honorable Gene E. K. Pratter
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 22, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: March 23, 2017)
___________
OPINION*
___________
PER CURIAM
Domenic Tricome appeals from a District Court order dismissing his complaint for
lack of prosecution. We will affirm.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 16-2710

Document: 003112571279

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Date Filed: 03/23/2017

I.
On October 7, 2015, Domenic Tricome filed a complaint in the Eastern District of
Pennsylvania alleging antitrust and contract claims. The District Court directed the Clerk
of that court to place the matter in suspense, pending Tricome’s submission of a complete
copy of the complaint, noting that several pages were missing. After Tricome failed to
file a complete complaint, the District Court again ordered Tricome to file a complete
copy of his complaint and warned that if he failed to comply, his complaint would be
subject to dismissal for failure to prosecute. Tricome failed to comply with this order and
the District Court dismissed Tricome’s complaint without prejudice for failure to
prosecute. Tricome appeals.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Although an order dismissing
a complaint without prejudice typically is not final under § 1291, this Court has
jurisdiction where the defect in the complaint cannot be cured. See Borelli v. City of
Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per curiam). A dismissal without
prejudice is final for purposes of § 1291 if the statute of limitations had expired by the
time of the court’s order. Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1156 (3d Cir.
1986). Although it is difficult to discern Tricome’s exact claims, it appears that a four
year statute of limitations applied. See 42 Pa. Cons. Stat. § 5525 (setting out a four year
statute of limitations for contract actions in Pennsylvania); see 15 U.S.C. § 15b
(providing a four year statute of limitations for antitrust damage actions). In his

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complaint, Tricome alleged that his claims arose on May 7, 2007.1 Accordingly,
Tricome’s claims are effectively barred as the statute of limitations had run at the time of
the District Court’s dismissal. Accordingly, we are satisfied that the District Court’s
order is final within the meaning of § 1291.
III.
A district court has the authority to dismiss a suit sua sponte for failure to
prosecute by virtue of its inherent powers and under Federal Rule of Civil Procedure
41(b). See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Donnelly v. JohnsManville Sales Corp., 677 F.2d 339, 340-41 (3d Cir. 1982) (holding that a district court
may sua sponte dismiss for failure to prosecute or failure to comply with court orders).
We review a District Court’s dismissal of a plaintiff’s claim pursuant to Rule 41(b) for an
abuse of discretion. Doe v. Megless, 654 F.3d 404, 411 (3d Cir. 2011). Ordinarily a
district court is required to consider and balance six factors enumerated in Poulis v. State
Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), when deciding, sua sponte, to
use dismissal as a sanction. Id. When a litigant’s conduct makes adjudication of the case
impossible, however, such balancing under Poulis is unnecessary. See Guyer v. Beard,
907 F.2d 1424, 1429-30 (3d Cir. 1990) (holding that dismissal of a habeas petition was
proper where the petitioner’s behavior was “contumacious” and “made adjudication of
the case impossible.”); see also Spain v. Gallegos, 26 F.3d 439, 454-55 (3d Cir. 1994)

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Tricome’s complaint also stated that the Supreme Court of the United States denied his
petition for certiorari on October 7, 2013. There is no basis to believe that Tricome’s
antitrust and contract claims arose on the date the Supreme Court denied a petition for
certiorari.
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(finding sua sponte dismissal appropriate where the plaintiff willfully refused to
prosecute her case). Tricome’s complaint provided no basis for an opposing party to
respond, as it referred to “page 6” of the complaint for a detailing of the claim, but “page
6” was not filed as part of the complaint. The complaint as filed failed to present any
clear articulation of actionable conduct by the defendants, injuries sustained by Tricome,
or relief requested. Tricome failed to correct the defect in his complaint that was pointed
out in two explicit orders of the District Court, and he clearly was advised that he faced
dismissal of his complaint if he failed to submit a complete copy it. Tricome’s failure to
file a complete complaint in the nearly seven months provided by the District Court made
adjudication of his case impossible. See Guyer, 907 F.2d 1430. Under the
circumstances, the District Court did not abuse its discretion in dismissing Tricome’s
complaint.
IV.
For the foregoing reasons, we will affirm the order of the District Court.

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