Jean-Louis v. Capital One
Filing
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MEMORANDUM OPINION - Signed by Judge Colm F. Connolly on 11/5/18. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FRANCIS JEAN-LOUIS ,
Plaintiff,
Civil Action No. 15-524-CFC
V.
CAPITAL ONE,
Defendant.
Frances Jean-Louis, Philadelphia, Pennsylvania. Pro Se Plaintiff.
Barry M. Willoughby, Esquire, and Lauren E.M. Russell, Esquire, Young , Conaway,
Stargatt & Taylor LLP, Wilmington, Delaware. Counsel for Defendant.
MEMORANDUM OPINION
November 5" , 2018
Wilmington , Delaware
CONNOLLY, U.S. District Judge
I.
INTRODUCTION
Plaintiff Frances Jean-Louis ("Plaintiff'), who proceeds pro se, filed this
employment discrimination case on June 22, 2015, pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. ยง 2000e, et seq. (D.I. 2) She also alleges defamation.
Defendant Capital One ("Defendant") moves to dismiss for failure to prosecute and
failure to cooperate in discovery or, in the alternative, for summary judgment. (D.I. 25)
Defendant also moves to strike exhibits and related portions of Plaintiffs response and
answer to its motion to dismiss. (D.I. 28) Plaintiff opposes both motions. (D.I. 27, 30)
II.
BACKGROUND
Plaintiff alleges employment discrimination by reason of religion when she was
not promoted in October 2013 and then terminated from her employment in December
2013. (D.I. 2) After Plaintiff failed to timely serve Defendant, the Court issued an order
on April 29, 2016, for Plaintiff to show cause why her case should not be dismissed for
failure to timely serve. (D.I. 8) Plaintiff responded, she was given an extension of time
to serve, and Defendant was served on May 31, 2016. (D.I. 9, 12, 20)
Once Defendant answered the Complaint, the Court entered a scheduling order
on June 21, 2016. (D.I. 16) The order set a discovery deadline of December 22, 2016
and a summary judgment deadline of February 22, 2017. (D.I. 16)
On June 22, 2016, Defendant served Plaintiff a request for production of
documents. (D.I. 19) When Plaintiff failed to respond to the discovery requests, she
was contacted by defense counsel and, as of March 22, 2017 has not responded to the
discovery requests. (D.I. 26-2 at 1) On June 22, 2016, Defendant also served Plaintiff
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with a notice to take her deposition on August 2, 2016. (0.1. 17) Plaintiff did not appear
for her deposition. (/d.) Plaintiff's deposition was rescheduled for August 26, 2016.
(0.1. 22) According to Defendant, on August 25, 2016, Plaintiff requested
postponement of her deposition because she was trying to acquire counsel, and
Defendant agreed to postpone the deposition. (0.1. 26 at 5)
On November 21, 2016, Plaintiff asked the Court for an extension to "seek legal
counsel." (0.1. 23) Defendant advised the Court that it did not oppose Plaintiff's request
to the extent she sought an extension of the December 22, 2016 discovery deadline.
(0.1. 24) Plaintiff did not seek an extension of the discovery deadline, and it was not
extended by the Court. Defendant states that, since November 2016, Plaintiff has not
contacted Defendant's attorney to explain her failure to engage in discovery, and
Plaintiff has failed to respond to Defendant's attempts to contact her which includes
attempts to reschedule her deposition. (0.1. 26 at 6)
On February 22, 2017, Defendant filed the pending motion to dismiss for failure
to prosecute and failure to cooperate in discovery, or in the alternative for summary
judgment. 1 (0.1. 25)
Ill.
LEGAL STANDARDS
Federal Rule Civil Procedure 37(b )(2) provides for sanctions once a court has
ordered a party to answer discovery and the party fails to comply with the order. Fed.
R. Civ. P. 37(b)(2). Rule 37(d) provides for sanctions when a party fails to attend its
own deposition, serve answers to interrogatories, or respond to a request for inspection.
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Because dismissal is warranted for Plaintiff's failure to prosecute, the Court will not
address Defendant's alternative motion for summary judgment.
2
Fed. R. Civ. P. 37( d). Dismissal of an action pursuant to Rule lies within the discretion
of the trial court. See Curtis T. Bedwell and Sons, Inc. v. International Fidelity Ins. Co.,
843 F.2d 683, 691 (3d Cir. 1988).
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. See
Harris v. City of Philadelphia, 47 F.3d 1311, 1330 (3d Cir. 1995).
The Court considers the following factors to 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. See Pou/is v.
State Farm Fire and Gas. Co., 747 F.2d 863,868 (3d Cir. 1984); see also Emerson v.
Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002).
The Court must balance the factors and may dismiss the action even if all of the
factors do not weigh against Plaintiff. See Emerson, 296 F.3d at 190 (3d Cir. 2002).
Because dismissal for failure to prosecute involves a factual inquiry, it can be
appropriate even if some of the Pou/is factors are not satisfied. See Hicks v. Feeney,
850 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 Pou/is factors must weigh
in favor of dismissal).
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IV.
DISCUSSION
Defendant seeks dismissal for Plaintiff's failure to prosecute due to her failure to
respond to discovery, failure to respond to Defendant's attempts to reschedule her
deposition, and failure to respond to Defendant's attempt to contact her. (D.I. 26)
Defendant argues that, because the Pou/is factors have been met, dismissal is an
appropriate sanction. (/d.) Plaintiff responds there has been no dilatory conduct,
Defendant agreed to an extension and could have contacted her anytime, it is up to
both sides to "work things out" according to each schedule, and she is continuing with
prosecution of the case. (D.I. 27) Plaintiff argues that Rule 37 is inapplicable, she asks
for a stay, and requests more time to respond to Defendant's discovery requests. (D.I.
30 at 2)
Plaintiffs response includes documents filed in opposition to Defendant's
alternative motion for summary judgment. (D.I. 27 at 4-24) Defendant moves to strike
the documents noting that Plaintiff failed to produce them in response to discovery
requests and failed to provide Defendant with a reasonable explanation for her failure to
produce the responsive documents in her possession. (D.I. 28)
Having reviewed the filings, the Court finds that the Pou/is factors warrant
dismissal of Plaintiffs Complaint. First, as a pro se litigant, Plaintiff is solely responsible
for prosecuting her claim. See Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 920
(3d Cir. 1992). Second, Defendant is prejudiced by Plaintiffs 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).
Here, Plaintiff did not seek an extension of the discovery deadline. Prior to the
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December 22, 2016 deadline, Plaintiff did not respond to discovery propounded upon
her, did not appear for her first deposition, cancelled her rescheduled deposition the day
before it was to take place, and, it seems, would not coordinate with Defendant to
reschedule the deposition. In addition, there is no indication that Plaintiff ever sought
discovery from Defendant. Plaintiff blames Defendant, arguing that it agreed to an
extension and could have contacted her anytime. Plaintiff commenced this action, and
it up to her to prosecute her case. Her failure to cooperate in discovery impedes
Defendant's ability to conduct discovery and/or develop trial strategy.
As to the third factor, there is a history of dilatoriness. The court docket indicates
that Plaintiff did not serve Defendant until a show cause order was issued, she never
responded to Defendant's discovery request, she did not appear for her first scheduled
deposition and, although she asked the Court for time to retain an attorney, an attorney
has not appeared, and she continues to proceed prose.
As to the fourth factor, the Court is unable to discern whether Plaintiff's failure to
prosecute is willful or in bad faith but notes that Plaintiff did not respond to discovery
requests, nor appear for her first scheduled deposition. As to the fifth factor, there are
no alternative sanctions the Court could effectively impose. Although the Court denied
Plaintiff's request to proceed in forma pauperis, she has claimed poverty, and it is
doubtful monetary sanctions would be effective. As to the sixth factor, due to the lack of
discovery it is difficult to assess the merits of Plaintiff's claim. 2
2
As to the employment discrimination claim, Defendant proffered a legitimate,
non-discriminatory reason for terminating Plaintiffs employment. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (if a defendant proffers a nondiscriminatory reason for an adverse employment decision, the burden shifts to the
plaintiff to offer some evidence that the defendant's reason was pretext for
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Due to Plaintiff's failure to respond to discovery requests, appear, or make
herself available to be deposed in an action she commenced, and failure to adequately
explain her dilatory actions, the Court finds that the Pou/is factors weigh in favor of
dismissal. Therefore, the Court will grant the motion to dismiss for failure to prosecute.
The Court will deny as moot, Defendant's motion to strike.
V.
CONCLUSION
For the above reasons, the Court will: (1) grant Defendant's motion to dismiss
for failure to prosecute and deny as moot Defendant's motion for summary judgment
(D.I. 25); and (2) deny as moot Defendant's motion to strike exhibits and related
portions of Plaintiff's response and answer to Defendant's motion to dismiss (D.I. 28).
An appropriate Order follows.
discrimination). With regard to the defamation claims raised under Delaware,
Defendant argues that it is immune from suit under Delaware's absolute litigation
privilege as to statements made during the course of the Delaware Department of Labor
and EEOC litigation. See Barkerv. Huang, 610 A.2d 1341, 1345 (Del. 1992).
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