Wright v. Sovereign Bank N.A. et al

Filing 89

MEMORANDUM. Signed by Judge Gregory M. Sleet on 3/19/15. (etg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ERRICK M. WRIGHT,
Plaintiff,
V.

EXPERIAN INFORMATION SOLUTIONS,
et al.,
Defendants.

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) Civ. Action No. 12-656-GMS
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MEMORANDUM
The plaintiff Errick M. Wright ("Wright"), who proceeds pro se and was granted leave to
proceed informa pauperis, filed this lawsuit pursuant to the Fair Credit Reporting Act, 15 U.S.C.
§ 1681, et seq.

I. BACKGROUND
The complaint was filed on May 24, 2012 (D.I. 2) and amended on September 5, 2012
(D.I. 22). On March 4, 2014, the court ordered Wright to show cause why the case should not be
dismissed, noting that Wright: (1) had taken no action since he propounded discovery on the
defendants in January 2014 (D.I. 75, 76, 77, 78, 79); (2) failed to comply with the September 18,
2012 (D.I. 26) and July 18, 2013 (D.l. 38) orders for service that required him to complete a
summons and submit the summons to the Clerk of Court for issuance when a defendant fails to
return an executed waiver of service; (3) failed to file an opposition to the November 7, 2013
motion to dismiss (D.I. 67); and (4) failed to file an opposition to the May 23, 2014 motion to
dismiss.

Wright timely responded to the show cause order and stated that his housing had been
unstable and that he now lives with his relative, having done so since September 2013. (See D.I.
88.) Wright will continue to live with his relative until he "can get back on his feet." (Id.) In
addition, Wright states that he made every attempt possible to comply with court orders but, with
his uncertain housing condition and the fact that he did not have access to relevant documents, it
was difficult for him to effectively present his case. He states that the documents were in a
storage unit and he did not have access to retrieve them until June 2014. Wright argues that
dismissal is a harsh sanction and asks that the case not be dismissed and that he be allowed to
comply with all court orders and respond to all outstanding motions.

II. STANDARD OF LAW
Pursuant to Fed. R. Civ. 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, 4 7 F .3d 1311,
1330 (3d Cir. 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 of defense.

Pou/is v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). The court must
balance the factors and need not find that all of them weigh against Wright to dismiss the action.

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Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). Because dismissal for failure to

prosecute involves a factual inquiry, it can be appropriate even if some of Paulis factors are not
satisfied. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1998).

III. DISCUSSION
The court finds that the first through the fifth Paulis factors warrant dismissal of Wright's
case. First, as a pro se litigant, Wright is solely responsible for prosecuting his claim. Hoxworth

v. Blinder, Robinson & Co., 980 F.2d 912, 920 (3d Cir. 1992). Second, the defendants are
prejudiced by Wright's failure to prosecute. Prejudice occurs when a plaintiffs failure to
prosecute burdens the defendant's ability to prepare for trial. Ware v. Rodale Press, Inc., 322
F.3d 218, 222-23 (3d Cir. 2003). As to the third factor, there appears to be a history of
dilatoriness, given Wright's failure to comply with court orders and file responses to motion filed
by the defendants. Thus, the third factor weighs in favor of dismissal. As to the fourth factor,
the court takes judicial notice that Wright has another case pending in this court, Wright v.
Equifax, Civ. No. 09-612-GMS and, during the time-frame wherein he indicates difficulty in

prosecuting this case (i.e., September 2013 to date), he filed numerous pleadings in Civ. No. 09612-GMS. It does not appear his housing situation constrained his ability to prosecute that case.
(See id. at D.I. 128, 130, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 146, 147, 148,

149, 153, 154, 155, 156, 158, 159, 161, 167, 138.) Thecourtfurthertakesjuridicalnoticethat
shortly after June 2014 (when Wright gained access to his materials in storage), he filed several
motions and discovery requests on July 11, 14, 16, 25, 29 and August 8, 2014, again leading to
the conclusion that he was not constrained in prosecuting his case due to materials formerly in
storage. (See id. at 153, 154, 155, 156, 158, 159.) Wright's ability to fully prosecute Civ. No.
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09-612-GMS during the time-frame as the one that he now asserts made it impossible for him to
prosecute this case, leads to the conclusion that Wright's failure to prosecute is willful or in bad
faith. Only Wright can take steps to prosecute this case.
As to the fifth factor, there are no alternative sanctions the court could effectively impose.
Precluding Wright from presenting evidence at trial would have the same effect as dismissal. For
the same reason, granting summary judgment in favor of the defendants or forbidding Wright
from pursuing further discovery would have the same effect as dismissal. Finally, a monetary
sanction is ineffective inasmuch as Wright proceeds as a pauper. The court finds the sixth factor,
the merits of the claim, is neutral. The other five Poulis factors, however, weigh in favor of
dismissal.

IV. CONCLUSION
The court finds that Wright has failed to show cause why this case should not be
dismissed for failure to prosecute. For the above reasons, the court will dismiss the case pursuant
to D. Del. LR 41.1
An appropriate order will be entered.

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'2015
Wilmington:Delaware

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