Hussain v. PNC Financial Services Group
Filing
96
MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 8/3/2011. (ksr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MUHAMMAD MUJTABA HUSSAIN,
)
)
Plaintiff,
)
)
v.
) Civ. No. 09-269-SLR
)
PNC FINANCIAL SERVICES GROUP, )
)
Defendant.
)
Muhammad Mujtaba Hussain, Alexandria, Virginia. Pro Se Plaintiff.
Kathleen Furey McDonough, Esquire, Potter Anderson & Corroon LLP, Wilmington,
Delaware. Counsel for Defendant.
MEMORANDUM OPINION
Dated: August .3 ,2011
Wilmington, Delaware
I. INTRODUCTION
Plaintiff Muhammad Mujtaba Hussain ("plaintiff'), who proceeds pro se, filed this
employment discrimination complaint pursuant to Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 2000e through 2000e-17. (0.1. 2, 86) Presently before the
court are several motions filed by the parties including motions to amend, to dismiss for
failure to prosecute, to compet to stay, and to strike. (0.1. 56, 65, 70, 74, 75, 80, 88, 90,
91) The court has jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5.
For the reasons set forth below, the court will dismiss the complaint for failure to
prosecute.
II. BACKGROUND
Plaintiff was employed by defendant as a licensed financial sales consultant from
August 8,2005 until March 15,2007, when he was terminated. He alleges that his work
from the date of his employ until June 2006 was considered excellent and he was not
disciplined but that, from June 2006 until the date of his termination, he was harassed
and periodically disciplined due to his national origin and religion. Plaintiff is Pakistani
and a Muslim. (0.1. 2. Equal Employment Opportunity Commission ("EEOC") Charge of
Discrimination) He also alleges that he was a victim of retaliation for filing a charge
against his supervisor who is an "American Christian." Plaintiff was told that he was
terminated for insubordination and willful misconduct by individuals whose religion and
national origin are unknown. He submitted a charge of discrimination and received his
right to sue letter on February 1, 2009.
Plaintiff filed his complaint on April 21 ,2009. A May 2010 scheduling order
provided a deadline of June 15, 2010 to file motions to join parties and amend pleadings
and a discovery deadline of October 15, 2010. (0.1. 34) Plaintiff moved to extend
deadlines and, on July 8, 2010, the court set new deadlines of August 9, 2010 to file
motions to join parties and amend pleadings and a new discovery deadline of December
9,2010. (0.1. 41) Plaintiff moved to amend on August 9,2010, and the motion was
granted on October 26,2010. (0.1. 53) The amended complaint was subsequently
sealed. (See 0.1. 86)
At the time the court granted the motion to amend, it imposed a deadline of
December 1, 2010 for plaintiff to file his initial disclosures and response to defendant's
interrogatories. The order states, "BECAUSE THESE DISCOVERY RESPONSES ARE
LONG OVERDUE, FAILURE BY PLAINTIFF TO COMPLY WITH THIS DEADLINE
SHALL RESULT IN DISMISSAL OF THE CASE FOR FAILURE TO PROSECUTE
PURSUANT TO D. DEL. LR 41.1. If plaintiff timely complies, the case shall proceed
according to the following schedule" which included an amended discovery deadline of
January 26, 2011 and an amended summary judgment motion deadline of March 1,
2011. (See 0.1. 53) The order did not extend the time to file motions to amend the
pleadings.
To date, plaintiff has not filed his initial disclosures as ordered by the court. He
did, however, answer defendant's interrogatories on December 1, 2010. On the same
date, he filed an out-of-time second motion to amend the complaint. (0.1. 56) Later, on
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January 26,2011, plaintiff filed a third motion to amend the complaint. 1 (0.1. 74) In the
meantime, defendant scheduled plaintiffs deposition to take place on January 20,2011,
prior to the expiration of the January 26, 2011 discovery deadline. On January 15, 2011,
plaintiff filed a motion to reschedule the deposition due to a prior commitment. (0.1. 70)
The deposition was scheduled to be held in Wilmington, Delaware. Plaintiff asked for
two months' notice of any rescheduled deposition "since [he] does not live in the state of
DE."2 (Id.)
Defendant opposes plaintiffs motions to amend and filed cross-motions to
dismiss the amended complaint for failure to prosecute pursuant to Fed. R. Civ. P. 37
and 41. (0.1. 63, 78) With regard to plaintiffs scheduled deposition, defendant
responded on January 19, 2011 (prior to the expiration of the discovery deadline) that,
"had plaintiff contacted [it] and requested another day, it would be, and still is, amenable
to rescheduling the deposition within the discovery period." (0.1. 71)
On April 5, 2011, the court ordered that "on or before April 25, 2011, plaintiff shall
file whatever final papers he intends to file, including a response to defendant's motion
to dismiss, embedded in its answering brief to plaintiffs 'motion to correct amended
complaint.'" (See 0.1. 89) On April 25,2011, plaintiff filed a response to defendant's
opposition to his motions to compel filed on January 26,2011 (0.1. 75) and March 29,
2011 (0.1. 88). (See 0.1. 95) The filing, however, was not responsive to defendant's
1The motions to amend seek to add facts, not new claims or defendants.
2Plaintiff resides in Alexandria, Virginia, a two or three hour drive from
Wilmington, Delaware.
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motions to dismiss nor did plaintiff file a separate response or any documents in
opposition to the motions to dismiss for failure to prosecute.
III. FAILURE TO PROSECUTE
A. Standard of Review
Pursuant to Fed. R. Giv. P. 41 (b), a court may dismiss an action "[f]or failure of
the plaintiff to prosecute or to comply with [the Federal Rules] or any order of court ...."
Although dismissal is an extreme sanction that should only be used in limited
circumstances, dismissal is appropriate if a party fails to prosecute the action. Harris v.
City of Philadelphia, 47 F.3d 1311, 1330 (3d Gir. 1995).
The following six factors determine whether dismissal is warranted: (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 was willful or in bad faith; (5) the
effectiveness of sanctions other than dismissal, which entails an analysis of other
sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire
and Cas. Co., 747 F.2d 863,868 (3d Gir. 1984); see also Emerson v. Thiel Coli., 296
F.3d 184, 190 (3d Gir. 2002); Huertas v. United States Dep'tof Educ., 408 F. App'x 639
(3d Gir. 2010) (not published).
The court must balance the factors and need not find that all of them weigh
against plaintiff to dismiss the action. Emerson, 296 F.3d at 190 (3d Gir. 2002).
Because dismissal for failure to prosecute involves a factual inquiry, it can be
appropriate even if some of the Poulis factors are not satisfied. Hicks v. Feeney, 850
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F.2d 152, 156 (3d Cir. 1998); Curtis T. Bedwell & Sons, Inc. v. International Fidelity Ins.
Co., 843 F.2d 683, 696 (3d Cir. 1988) (holding that not all Poulis factors must weigh in
favor of dismissal).
IV. DISCUSSION
The court finds that the Poulis factors warrant dismissal of plaintiff's case. First,
as a pro se litigant, plaintiff is solely responsible for prosecuting his claim. Hoxworth v.
Blinder, Robinson & Co., 980 F .2d 912, 920 (3d Cir. 1992).
Second, defendant is prejudiced by plaintiff's failure to prosecute. Prejudice
occurs when a plaintiff's failure to prosecute burdens the defendant's ability to prepare
fortrial. Ware
V.
Rodale Press, Inc., 322 F.3d 218,222-23 (3d Cir. 2003). Plaintiff's
failure to provide initial disclosures and to make himself available for his deposition prior
to the expiration of the discovery deadline severely impedes defendant's ability to
prepare a trial strategy.
As to the third factor, there is a history of dilatoriness inasmuch as plaintiff never
filed his initial disclosures as ordered by the court despite a warning that the case would
be dismissed, filed motions to amend out-of-time and in derogation of the scheduling
orders, and failed to respond to defendant's motions to dismiss for failure to prosecute.
As to the fourth factor, the facts to date lead to a conclusion that plaintiff's failure
to prosecute is willful or in bad faith. The court ordered plaintiff to file his initial
disclosures; he did not. The court entered scheduling orders; plaintiff did not abide by
them. Plaintiff's deposition was set to take place prior to the expiration of the discovery
deadline; plaintiff required two months advance notice of his deposition even though he
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lives a short distance from Delaware. Accordingly, the court finds plaintiffs actions
willful and in bad faith.
As to the fifth factor, there are no alternative sanctions the court could effectively
impose. Because plaintiff proceeds pro se and in forma pauperis, it is doubtful that
monetary sanctions would be effective.
As to the sixth factor, the merits of the claim, plaintiff alleges he was discharged
from his employment because of his national origin and religion. The record, however,
contains evidence of a legitimate nondiscriminatory reason for plaintiffs discharge.
Plaintiff was discharged following serious customer complaints and insubordinate
behavior. (See 0.1. 83, 03-011)
Given plaintiffs failure to: (1) provide initial disclosures as ordered by the court
despite its admonition that failure to do so would result in dismissal; (2) abide by the
court's scheduling orders; (3) make himself available for deposition prior to the
expiration of the discovery deadline; and (4) respond to defendant's motion for failure to
prosecute, as well as the unlikelihood of success on the merits of his claim, the court
finds that the Poulis factors weigh in favor of dismissal.
V. CONCLUSION
For the above reasons, the court will grant defendant's motions to dismiss for
failure to prosecute. The court will decline to impose sanctions upon plaintiff. A" other
motions will be denied as moot. An appropriate order will issue.
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