Trotter v. Berryhill

Filing 25

REPORT AND RECOMMENDATIONS- the court recommends dismissing the case without prejudice for failure to prosecute. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 5/8/2019. Signed by Judge Sherry R. Fallon on 4/24/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KIMBERLY D. TROTTER
Plaintiff,
V.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Defendant.

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Civil Action No. 18-233-CFC-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Plaintiff Kimberly D. Trotter filed this action on February 9, 2018. (D.I. 1) She proceeds

pro se. A briefing schedule was entered on June 25, 2018, and it gave Plaintiff until August 6,
2018 to submit an opening brief. (D.I. 11) To date, Plaintiff has not filed an opening brief. On
April 12, 2019, Plaintiff filed a letter with the court indicating that the Plaintiff is "currently still
under doctor [sic] orders." (D.I. 24) The court treats this letter as a further request for an
extension to file Plaintiffs opening brief on appeal.

II.

BACKGROUND
Plaintiff commenced this action on February 9, 2018. (D.I. 1) The scheduling order

provided a deadline for filing Plaintiffs opening brief of August 6, 2018. (D.I. 11) On August
3, 2018, Plaintiff filed a motion to extend time to file her opening brief, which was granted by
the court on August 6, 2018. (D.I. 12) Plaintiffs opening brief became due on or before
September 6, 2018. The deadline passed and Plaintiff did not file an opening brief nor request a
further extension of time to file it.
On November 16, 2018, the court issued an Order to Show Cause on or before December
7, 2018 as to why this case should not be dismissed for failure to prosecute, pursuant to D. Del.

LR 41.1. (D.I. 14) On November 30, 2018, Plaintiff filed a motion for extension of time to file a
response to the Order to Show Cause, which the court granted on December 4, 2018. (D.I. 15;
D.I. 16) Plaintiffs opening brief became due on or before January 4, 2019. (D.I. 16) On the
January 4, 2019 deadline, Plaintiff did not file an opening brief. However, she submitted a letter
to the court indicating that she was seeking attorney representation. (D.I. 17)
Therefore, on January 7, 2019, the court issued an Order to Show Cause as to why the
case should not be dismissed for failure to prosecute, pursuant to D. Del. LR 41.1, and ordered
that Plaintiff submit her opening brief on or before February 8, 2019. (D.I. 18) On January 7,
2019, Plaintiff filed a letter that she called an "Amended Statement," expressing concern over
her previous attorney's legal advice. (D.I. 19) Beyond this letter response, Plaintiff did not
respond to the Order to Show Cause. On February 4, 2019, Plaintiff filed another motion for
extension of time to file a response to the Order to Show Cause, which the court granted on
February 5, 2019. (D.I. 20; D.I. 21) Plaintiffs opening brief became due on or before March 8,
2019. (D.1. 21)
On March 8, 2019, without filing her opening brief, Plaintiff filed yet another motion for
extension of time to file a response to the Order to Show Cause, which the court granted on
March 11, 2019. (D.I. 22; D.I. 23) Plaintiffs opening brief became due on or before April 12,
2019 and the court explained that there would be no further extensions. (D.I. 23) On April 12,
2019, Plaintiff filed a motion for extension of time to file her opening brief. (D.I. 24) Plaintiffs
most recent motion equates to at least her fifth request to extend the time to file her opening brief
on appeal.

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III.

LEGAL STANDARD
Pursuant to Fed. R. Civ. P. 41(b), a court may dismiss an action "[i]fthe plaintiff fails to

prosecute or to comply with [the Federal Rules] or a court order .... " Fed. R. Civ. P. 41(b).
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 Paulis v. State Farm Fire and Cas. 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 them 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 Paulis
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 Paulis factors must weigh in favor of dismissal).

IV.

DISCUSSION
I recommend that the Paulis factors warrant dismissal of Plaintiffs claims. 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). In addition, Defendant is prejudiced by

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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, Plaintiffs failure to file her opening brief impedes Defendant's ability to
meaningfully respond to the scope of Plaintiffs appeal and to submit Defendant's cross-motion
for summary judgment.
As to the third factor, there is a history of dilatoriness given that Plaintiff has filed
numerous (at least five) motions for extension of time to respond to the court's Orders to Show
Cause and file her opening brief. (D.I. 15; D.I. 20; D.I. 22; D.I. 24) As to the fourth factor, the
court will not conclude at this time that the Plaintiffs failure to prosecute is willful or in bad
faith. As to the fifth factor, monetary sanctions are not a consideration. 1 As to the sixth factor,
the merits of the claim, Plaintiff filed for both Social Security Disability Insurance Benefits
("DIB") under Title II, and Supplemental Security Income Benefits ("SSI") under Title XVI of
the Social Security Act (the "Act"). (D.I. 8-5 at 2-12) On September 1, 2016, the
Administrative Law Judge ("ALJ") dismissed Plaintiffs request for a hearing based on her DIB
application. (D.I. 8-2 at 38) The Appeals Council subsequently denied Plaintiffs request for
review on December 11, 2017, rendering the ALJ' s decision the final decision of the
Commissioner. (Id. at 6-9) On February 9, 2018, Plaintiff brought the instant civil action
challenging the ALJ's decision. (D.I. 2) At this stage of the proceedings, the court cannot assess
whether Plaintiffs claims have merit, despite her failure to prevail on the merits of her claims at
the administrative level.

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The Plaintiff was granted leave to proceed in forma pauperis. (D.I. 4)
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Therefore, given Plaintiff's failure to file an opening brief and her history of dilatoriness,
the court recommends that the Paulis factors weigh in favor of dismissal. 2

V.

CONCLUSION
For the foregoing reasons, the court recommends dismissing the case without prejudice

for failure to prosecute. The Clerk of Court shall cause a copy of this Report and
Recommendation to be mailed to Plaintiff.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to five (5)
pages each.
The parties are directed to the court's Standing Order In Pro Se Matters For Objections
Filed Under Fed. R. Civ. P. 72, dated October 9, 2013, a copy of which is available on the
court's website, http://www.ded.uscourts.gov.

Dated: April ~ ' 2019
AGISTRATE JUDGE

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To the extent that Plaintiff alleges attorney malpractice, the court cannot address these
allegations on appeal. (D.I. 19) See Peters v. Berryhill, 2017 WL 3437332, at *4 (S.D. Ill. Aug.
10, 2017) ("Any argument that plaintiff's attorney committed malpractice in representing him
before the agency cannot be considered here because professional negligence, if it occurred,
would not be grounds to reverse the Commissioner's decision.").

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