Babiarz v. Landgraf et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 9/8/2017. (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 16-916-LPS
RITA LANDGRAF, et al.,
Carolyn Babiarz, Wilmington, Delaware, Pro Se Plaintiff.
Joseph Clement Handlon, Deputy Attorney General Deputy, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants.
September 8, 2017
Plaintiff Carolyn Babiarz ("Plaintiff'') filed this civil rights action on October 7, 2016. 1 (D.I.
1) She appears prose and has paid the filing fee. Pending is Defendants' motion to dismiss (D.I. 8)
and letter/motion to dismiss for failure to prosecute. (D.I. 9) Plaintiff did not respond to either
motion. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons that follow, the
Court will grant the letter/motion to dismiss for failure to prosecute.
As noted, Plaintiff commenced this action in October 2016. On January 23, 2017,
Defendants filed a motion to dismiss on the grounds of: (1) Eleventh Amendment immunity from
suit; (2) there is not respondeat superior liability under 42 U.S.C. § 1983; (3) to the extent Plaintiff
asserts Title VII claims, such claims cannot be maintained against individuals; (4) any civil rights
claims are time-barred; and (5) the complaint fails to state a plausible claim for relief. (See D.I. 8)
When Plaintiff had not responded to the motion by June 1, 2017, Defendants filed a letter/motion
to dismiss for failure to prosecute. (See D.I. 9) As with the motion to dismiss, Plaintiff did not
respond to the letter/motion for failure to prosecute. On June 19, 2017, Plaintiff filed a request for
counsel with an exhibit, but still did not respond to Defendants' letter/ motion to dismiss for failure
to prosecute. 2 (See D.I. 10, 11)
Plaintiff does not indicate under which statute she proceeds, but it appears she brings this
case pursuant to 42 U .S.C. § 1983. When bringing a § 1983 claim, a plaintiff must allege that some
person has deprived him of a federal right, and that the person who caused the deprivation acted
under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
Pursuant to 28 U.S.C. § 1915(e)(1), the court may request an attorney to represent any
personal unable to afford counsel. Section 1915 (e) (1) confers the district court with the power to
request that counsel represent a litigant who is proceeding in for7na pauperis. Plaintiff has paid the
filing fee and has not sought in for7na pauperis status. Therefore, she does not qualify for counsel
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. Ciry ef Phiiadelphia, 47 F.3d 1311, 1330 (3d Cir. 1995).
Under Local Rule 41.1, in a case pending wherein no action has been taken for a period of three
months, upon application of any party, and after reasonable notice and opportunity to be heard, the
Court may enter an order dismissing the case unless good reason for the inaction is given. See D.
Del. LR 41.1.
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. See 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 Plaintiff to dismiss the action. See Emerson v. Thiel
CoiL, 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 Pou/is factors are not satisfied. See Hicks v. Feenry, 850
F.2d 152, 156 (3dCir.1988).
Defendants move for dismissal based upon Plaintiffs failure to prosecute her case. The
Court notes that Defendants mailed the January 23, 2017 motion to dismiss (D.I. 8) to the address
provided by Plaintiff. To date, Plaintiff has not filed a response to the motion. Nor has Plaintiff
filed response to Defendants' June 1, 2017 letter/motion to dismiss for failure to prosecute. (D.I. 9)
It, too, was mailed to the address provided by Plaintiff. Instead, Plaintiff recently filed a request for
The Court finds that the Pou/is factors warrant dismissal of Plaintiff' case. 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)·. Defendants are prejudiced by Plaintiff's failure to prosecute.
Prejudice occurs when a plaintiff's failure to prosecute burdens the defendant's ability to prepare for
trial. See Ware v. Rodale Press, Inc., 322 F.3d 218, 222-23 (3d Cir. 2003). Here, Plaintiff's failure to
take any action hinders Defendants' ability to defend this case. 3
As to the third factor, the docket indicates a history of dilatoriness. As noted, Plaintiff has
failed to respond to motions to dismiss her case and, until the recently-filed request for counsel, had
taken no action since January 17, 2017. As to the fourth factor, the facts to date lead to a conclusion
that Plaintiff' failure to prosecute her claim against Defendants is willful or in bad faith. Only
Plaintiff can take steps to prosecute the case.
As to the fifth factor, the Court could impose sanctions precluding Plaintiff from presenting
evidence at trial, granting summary judgment in favor of State Defendants, or forbidding Plaintiff
from pursuing discovery, all of which would have the same effect as dismissal, or a monetary
sanction could be imposed. As to the sixth factor, the merits of the claim, a review of the law and
facts indicate that Defendants' motion to dismiss, filed January 23, 2017, is well-taken and that
Defendants indicate there has been no compliance with 10 Del. C. § 3103 and do not
concede that service has been effected or that the Court has personal jurisdiction over them.
dismissal is appropriate on the grounds raised in the motion. Accordingly, the Court finds the Poulis
factors weigh in favor of dismissal.
The Court will grant Defendants' letter/motion to dismiss for failure to prosecute (D.I. 9)
and will deny as moot Defendants' motion to dismiss (D.I. 8) and Plaintiffs request for counsel
An appropriate Order will be entered.
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