JOHNSON v. WELTMAN, WEINBERG & REIS COMPANY, L.P.A.

Filing 13

MEMORANDUM AND ORDER THAT DEFENDANT WELTMAN,WEINBERG & RIES COMPANY, L.P.A. MOTION TO DISMISS IS GRANTED AND PLAINTIFF'S COMPLAINT IS DISMISSED FOR FAILURE TO PROSECUTE; ETC.. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 2/22/17. 2/22/17 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANISHA JOHNSON
Plaintiff - pro se

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v.
WELTMAN, WEINBERG & REIS
COMPANY, L.P.A.
Defendant

CIVIL ACTION
NO. 16-1497
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NITZA I. QUIÑONES ALEJANDRO, J.

FEBRUARY 22, 2017

MEMORANDUM OPINION
INTRODUCTION
Presently before this Court is a motion to dismiss Plaintiff’s complaint filed by Defendant
Weltman, Weinberg & Reis Company, L.P.A. (“Defendant”), [ECF 12], premised on pro se
Plaintiff Anisha Johnson’s (“Plaintiff”) failure to prosecute this action and her repeated failures
to comply with this Court’s Orders. In light of the procedural posture of this case and after
having carefully considered and weighed the factors set forth in Poulis v. State Farm Fire &
Casualty Co., 747 F.2d 863 (3d Cir. 1984), for the reasons stated, this matter is dismissed.
BACKGROUND
On March 30, 2016, Plaintiff filed an application to proceed in forma pauperis, (the “IFP
application”) and a complaint against Defendant essentially charging Defendant with illegal
conduct stemming from a collection practice. [ECF 1]. The IFP application was granted by
Order dated April 6, 2016, [ECF 2], and Plaintiff’s complaint was docketed. [ECF 3]. On June
30, 2016, Defendant filed its answer. [ECF 6]. By Order dated July 1, 2016, this Court
scheduled a preliminary pretrial conference for December 14, 2016, and directed the parties to
prepare and file a joint Rule 26(f) report prior to the scheduled pretrial conference. [ECF 7]. On

December 12, 2016, Defendant filed its Rule 26(f) report, and advised the Court, inter alia, of
Defendant’s unsuccessful attempts to confer with Plaintiff in order to conduct the requisite Rule
26(f) meeting. [ECF 8].
On December 14, 2016, this Court held the scheduled pretrial conference, which was
attended by counsel for Defendant but not by Plaintiff. [ECF 10]. As a result of Plaintiff’s
failure to attend the pretrial conference, this Court issued a Rule to Show Cause Order, [ECF 11],
which directed Plaintiff to show cause, by December 30, 2016, why this matter should not be
dismissed for her failure to comply with this Court’s previous Order and appear for the pretrial
conference. The Order also advised that Plaintiff’s failure to comply “may result in the dismissal
of this action.” Plaintiff has not responded in any way to this Court’s Order. On January 30,
2017, Defendant filed the underlying motion to dismiss the complaint based on Plaintiff’s failure
to prosecute.
LEGAL STANDARD
Federal Rule of Civil Procedure (“Rule”) 41(b) provides that an action may be dismissed
if a plaintiff “fails to prosecute or to comply with these 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. Harris v. City of
Phila., 74 F.3d 1311, 1330 (3d Cir. 1995). Because of the extreme nature of this type of
sanction, the Third Circuit Court of Appeals in Poulis v. State Farm Fire and Casualty Co., 747
F.2d 863 (3d Cir. 1984), instructed district courts to apply a six-factor balancing test to determine
whether the entry of such a dismissal order is appropriate. Id. at 867-68.
The Poulis factors require district courts to consider: (1) the extent of the party’s personal
responsibility; (2) the prejudice to the adversary; (3) whether the party has a history of

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dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) the effectiveness
of sanctions other than dismissal; and (6) the meritoriousness of the claim. Id. at 868. However,
not all of the factors need weigh in favor of entering the dismissal order against a plaintiff nor
need be satisfied. See Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008) (“While no single
Poulis factor is dispositive, we have also made it clear that not all of the Poulis factors need be
satisfied in order to dismiss a complaint.”); C.T. Bedwell & Sons, Inc. v. Int’l. Fidelity Ins. Co.,
843 F.2d 683, 696 (3d Cir. 1988) (noting that the district court did not abuse its discretion where
five Poulis factors favored dismissal). A decision to enter a dismissal order is within the district
court’s discretion. Poulis, 747 F.2d at 868.
DISCUSSION
Relying on the case law cited, this Court will review and balance the Poulis factors to
determine whether Defendant’s motion to dismiss is warranted. Therefore, each Poulis factor
will be briefly addressed and weighed.
1. Extent of Plaintiff’s Responsibility
Plaintiff is proceeding pro se in this matter. There is no indication that she has not
received this Court’s previous Orders and admonishment. Further, more than 30 days have
elapsed since the filing of the Rule to Show Cause Order. This passage of time is more than
sufficient for Plaintiff to have responded to the Court’s Orders. Thus, she alone is responsible
for her failure to comply with this Court’s Orders. See Briscoe, 538 F.3d at 258. Since her
failures to comply with this Court’s Orders cannot be attributed to counsel or another party, this
factor weighs in favor of dismissal.

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2. Prejudice to Defendant
Prejudice occurs when a plaintiff’s failure to prosecute burdens a defendant’s ability to
defend against a case and/or prepare for trial. Ware v. Roadle Press, Inc., 322 F.3d 218, 222-23
(3d Cir. 2003).

Here, Plaintiff’s failure to confer with Defendant prior to the scheduled

preliminary pretrial conference, as required by this Court’s July 1, 2016 Order, her failure to
attend the preliminary pretrial conference, her failure to respond to this Court’s Rule to Show
Cause Order, and her failure to respond to Defendant’s motion to dismiss have prevented
Defendant from obtaining relief in any way other than by dismissal of this action. Under the
circumstances, this factor weighs in favor of dismissal.
3. Plaintiff’s History of Dilatoriness
Plaintiff’s dilatoriness is evidenced by her failure to comply with this Court’s July 1,
2016 Order, her failure to attend the preliminary pretrial conference, her failure to respond to this
Court’s December 14, 2016 Rule to Show Cause Order, and her failure to respond to
Defendant’s motion to dismiss. Notably, Plaintiff was advised that her case may be dismissed if
she did not respond to the Rule to Show Cause Order. Indeed, Plaintiff has done nothing in this
case since she sought leave to proceed in forma pauperis on March 30, 2016, that would
evidence any desire on her part to continue to pursue this action. This factor, therefore, weighs
in favor of dismissal.
4. Willfulness and Bad Faith Conduct
“Willfulness and bad faith can be inferred from the totality of the record.” Schutter v.
Herskowitz, 2008 WL 2726921, at *17 (E.D. Pa. July 11, 2008). The Third Circuit has held that
the “[a]bsence of reasonable excuses may suggest that the conduct was willful or in bad faith.”
Roman v. City of Reading, 121 F. App’x 955, 960 (3d Cir. 2005). Plaintiff’s repeated failure to

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comply with this Court’s Orders without any offered justification evidences willfulness. Thus,
this factor weighs in favor of dismissal.
5. Effectiveness of Sanctions other than Dismissal
Plaintiff’s inaction since March 30, 2016, and her repeated failures to comply with this
Court’s Orders have deprived this Court of the ability to fashion, if appropriate, a less severe and
more moderate sanction that might ensure future compliance. It appears Plaintiff has simply
ignored this Court’s Orders, including the most recent which specifically advised her that failure
to respond may result in dismissal of the action; or has simply lost interest in this matter. In the
absence of any mitigating circumstances or offered justification for her repeated failures,
Plaintiff’s conduct makes it clear that any other less severe sanction would be ineffective. This
factor, therefore, weighs in favor of dismissal.
6. Meritoriousness of Plaintiff’s Claim
A claim is meritorious if the allegations of the pleadings would support recovery if
established at trial. Poulis, 747 F.2d at 869-70. Given the lack of any discovery to date, and
Plaintiff’s failure to respond to this Court’s Rule to Show Cause Order or to Defendants’ motion
to dismiss, it is difficult to assess the merits of her claims. This Court, therefore, finds this factor
neutral. See Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002).
CONCLUSION
Having carefully considered and balanced each of the Poulis factors, this Court finds that
these factors collectively weigh in favor of dismissal. As such, Plaintiff’s claims are dismissed
for failure to prosecute. An Order consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, J.

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