Mayhan v. Sunoco Inc

Filing 60

MEMORANDUM ORDER: The Complaint is DISMISSED without prejudice for Plaintiff's failure to prosecute the case. The Clerk of Court is directed to CLOSE the case (***Civil Case Terminated). Signed by Judge Richard G. Andrews on 3/23/2021. (nms)

Case 1:18-cv-00355-RGA Document 60 Filed 03/23/21 Page 1 of 3 PageID #: 312

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DEBORAH J. MAYHAN,
Plaintiff,
v.
SUNOCO, INC.,
Defendant.

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Civ. No. 18-355-RGA

MEMORANDUM ORDER
At Wilmington this 23rd day of March, 2021;
1.

Introduction. Plaintiff Deborah J. Mayhan, who appears pro se and has

been granted leave to proceed in forma pauperis, filed this employment discrimination
action on March 6, 2018, against Defendant Sunoco, lnc. (D.I. 2). On January 16,
2020, I granted Defendant’s motion to compel arbitration and stayed the proceedings
pending results of arbitration. (See D.I. 46, 47).
2.

Background. During the course of this litigation, I have entered four

show cause orders why the case should not be dismissed for Plaintiff’s failure to take
action. (See D.I. 16, 19, 22, 52). In each instance, Plaintiff provided reasons for her
failure to act. However, despite the January 16, 2020 order granting the motion to
compel arbitration, to date, Plaintiff has not initiated arbitration. As a result, on
February 12, 2021, I entered an order for Plaintiff to show cause on or before March 12,
2021 why the Court should not enforce its January 16, 2020 Order (D.I. 47) compelling
arbitration. (D.I. 58). The Order provided a date for Defendant to file a responsive
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brief. The Order placed Plaintiff on notice that her failure to respond to the Show
Cause Order would be considered a failure to prosecute and would result in dismissal of
the case. When Plaintiff failed to comply with the February 21, 2021 Order, Defendant
advised the Court that it would not be filing a responsive brief and asked for dismissal of
the case for Plaintiff’s failure to prosecute. (D.I. 59).
3.

Discussion. 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, 47 F.3d 1311, 1330 (3d Cir. 1995).
4.

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 Cir. 1984); see also Hildebrand v. Allegheny
Cty., 923 F.3d 128 (3d Cir. 2019). The Court must balance the factors and need not
find that all of them weigh against Plaintiff to dismiss the action. Emerson v. Thiel Coll.,
296 F.3d 184, 190 (3d Cir. 2002).
5.

Several factors support the sanction of dismissal including Plaintiff’s

dilatory history, her failure to initiate arbitration as ordered by the Court, her failure to
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comply with the Court’s February 12, 2021, her failure to prosecute the case, and her
apparent abandonment of the case. She is personally responsible for all of these
actions as she represents herself. There is no reason to believe that any lesser sanction
would be effective in causing her to go forward with the arbitration.
THEREFORE, it is ordered that:
1.

The Complaint is DISMISSED without prejudice for Plaintiff’s failure to

prosecute this case.
2.

The Clerk of Court is directed to CLOSE the case.

/s/ Richard G. Andrews
UNITED STATES DISTRICT JUDGE

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