PRESTON v. KAYE PERSONNEL, INC. et al
MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE LYNNE A. SITARSKI ON 9/22/17. 9/22/17 ENTERED AND COPIES EMAILED TO COUNSEL.(jaa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EMR SCRAP, et al.,
September 22, 2017
Presently before this Court is a motion to dismiss Plaintiff’s complaint for failure to
appear for Court ordered deposition, filed by Defendant, EMR Scrap, 1 and Defendant, Camden
Iron & Metal, LLC (collectively “Defendants”). (Mot. to Dismiss, ECF No. 26). For the reasons
that follow, Defendants’ Motion is GRANTED.
On April 28, 2016, Plaintiff Derrick Preston filed a civil complaint in the Philadelphia
County Court of Common Pleas against Kaye Personnel Inc., Labor Force Inc., EMR Scrap, and
Camden Iron & Metal, LLC. (Pl.’s Compl., ECF No. 1, Ex. A). 2 In his complaint, Plaintiff
alleged that on October 28, 2014, Defendants, acting through their employees, negligently
allowed a conveyor belt to become overloaded causing a metal beam to fall from the conveyor
belt onto Plaintiff. (Id. ¶ 11).
EMR (USA Holdings), Inc. has been improperly identified in the caption as EMR
Scrap. For consistency, we will refer to EMR (USA Holdings), Inc. as EMR Scrap.
On August 10, 2016, the Court granted Defendants Kaye Personnel Inc. and Labor
Force Inc.’s motion for judgment on the pleadings, and these parties were dismissed from the
case. (ECF No. 12).
On May 26, 2016, Defendants petitioned for removal to federal court pursuant to
28 U.S.C. §§ 1332 and 1441. (ECF No. 1). 3 On May 28, 2017, Defendants Camden Iron &
Metal, LLC, and EMR Scrap filed this motion to dismiss based upon Plaintiff’s failure to appear
for deposition on three separate occasions, including a Court ordered deposition. (ECF No. 26).
Plaintiff’s deposition initially was scheduled for May 31, 2017; all counsel were present, but
Plaintiff failed to appear. (Id. ¶¶ 2-3). The deposition was re-noticed for June 6, 2017, and
Plaintiff again failed to appear. (Id. ¶ 4). On June 8, 2017, following a teleconference with
counsel for the parties, I entered an Order compelling Plaintiff to appear for his deposition on
June 28, 2017. I further noted that, should Plaintiff again fail to appear, Defendants could file a
motion requesting sanctions as appropriate, including dismissal of the action with prejudice.
(ECF No. 24). Plaintiff again failed to appear for the deposition, and Defendants filed the
present Motion to Dismiss. (ECF No. 26).
The Court may order sanctions if a party fails to attend its own deposition. Fed. R. Civ.
P. 31(d)(1)(A)(i). If a plaintiff fails to comply with a court order, a defendant may move to
dismiss the action. Fed. R. Civ. P. 41(b); see also Fed. R. Civ. P. 31(b)(2)(A) (stating sanctions
for failure to obey a discovery order include, inter alia, dismissal of the action). When deciding
whether dismissal is an appropriate sanction, I must balance the six factors set forth in Poulis v.
State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984). These factors are:
(1) [T]he extent of the party’s personal responsibility; (2) the
prejudice to the adversary caused by the failure to meet scheduling
This matter initially was assigned to the Honorable C. Darnell Jones. On April 12,
2017, the parties consented to the exercise of jurisdiction by a United States Magistrate Judge
under 28 U.S.C. §636(c) and Fed. R. Civ. P. 73. See ECF Docket No. 17.
orders and respond to discovery; (3) a history of dilatoriness; (4)
whether the conduct of the party or the attorney was willful or in
bad faith; (5) the effectiveness of the sanctions other than
dismissal, which entails an analysis of alternative sanctions; and
(6) the meritoriousness of the claim.
Id. at 868 (emphasis omitted). There is no “magic formula” or “mechanical calculation” for
balancing the Poulis factors. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). “No single
Poulis factor is dispositive,” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003), and
not all of the Poulis factors need to be satisfied to dismiss a complaint. See Emerson v. Thiel
College, 296 F.3d 184, 190 (3d Cir. 2002); Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.
1992). Deciding whether to dismiss the action requires a balancing of the factors articulated in
Poulis. Huertas v. City of Philadelphia, 2005 WL 226149 *2 (E.D. Pa. 2005).
Defendants have filed the instant motion to dismiss after Preston’s third failure to appear
for his deposition. Due consideration of each of the Poulis factors leads me to conclude that
dismissal with prejudice is an appropriate sanction for Plaintiff’s failure to attend his own
deposition on three separate occasions, including a court-ordered deposition.
Each of the Poulis factors will be discussed in turn.
The Extent of the Party’s Personal Responsibility
Plaintiff is personally responsible for his own failure to appear for his deposition, and for
the resulting delay in the litigation. On three separate occasions, Plaintiff failed to attend his
scheduled deposition. The first and second deposition dates were confirmed by counsel the day
prior. (Mot. to Dismiss, ECF No. 26, Ex. C). Moreover, all counsel were present for these
depositions; Plaintiff was the sole absentee from the scheduled proceedings, evincing his
personal responsibility. Additionally, the third failure to appear was in direct violation of the
Court Order dated June 9, 2017. I conclude that this factor weighs in favor of the imposition of
the extreme sanction of dismissal.
Prejudice to the Adversary
Defendants have suffered prejudice due to Plaintiff’s failure to appear for deposition.
Defendants incurred costs to prepare and travel to each of the three depositions. See
Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984) (stating that “excessive and possibly
irremediable burdens or costs” prejudices an adversary). More significantly, Plaintiff’s failure to
submit to deposition prevents Defendants from developing and implementing their trial strategy.
See Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003); Wiley v. Star Chrysler/Jeep
LLC, 2009 WL 410673, at *2 (D. Del. 2009) (“Plaintiff’s repeated failure to attend his deposition
severely impedes Defendant’s ability to prepare a trial strategy.”). As in Poulis, “defendant[s]
encountered lack of cooperation from the plaintiff in areas where the plaintiff should cooperate
under the spirit of the federal procedural rules.” Poulis, 747 F.2d at 868. I conclude this factor
weighs in favor of dismissal.
A History of Dilatoriness
Plaintiff has shown a history of dilatoriness here, given his failure to attend three
scheduled depositions. See Huertas, 2005 WL 226149 at *3 (finding a history of dilatoriness
where Plaintiff failed to appear for properly noticed depositions, including in violation of a Court
Order); Hicks v. Feeney, 124 F.R.D. 79, 82 (D. Del 1987) (finding a history of dilatoriness where
Plaintiff failed to appear for three duly noticed depositions). This factor weighs in favor of
Whether the Conduct was Willful or in Bad Faith
I find Plaintiff’s failure to appear on three separate occasions to be willful. Plaintiff’s
failure to inform defense counsel and his own counsel of his absence, as well as his disregard for
this Court’s Order compelling his attendance at the third scheduled deposition, indicates willful
behavior. See Wiley, 2009 WL 410673, at *2. I conclude this factor supports dismissal.
Dismissal with prejudice is a drastic sanction, Poulis, 747 F.2d at 867, but I conclude that
it is warranted in this case. A party’s failure to attend his own deposition on multiple occasions
without informing counsel and in direct violation of a Court Order is obviously unacceptable
conduct. See Hicks, 124 F.R.D. at 85; Huertas, 2005 WL 226149 at *4. Moreover, I specifically
warned Plaintiff that his failure to appear for his third scheduled deposition could result in
dismissal of the action with prejudice.
Meritoriousness of the Claim
This Court cannot determine whether Plaintiff has a meritorious claim “because Plaintiff
has refused to be deposed.” Caldwell v. Vineland Police Dep’t, 2010 WL 2545966, at *2 (D.N.J.
2010); see also Wiley, 2009 WL 410673 at *3. Neither party has presented the Court with any
insight into the strengths and weaknesses of the claims and defenses, so this factor is neutral.
Plaintiff has failed to attend his scheduled deposition on multiple occasions, and has
violated this Court’s Order compelling his appearance. By Order dated June 9, 2017, I
specifically advised Plaintiff that if he failed to appear for his deposition (for the third time), I
would consider appropriate sanctions, including dismissal of the action with prejudice. (Order,
ECF No. 24).
In light of the foregoing, I conclude that dismissal of the action with prejudice is the
appropriate sanction, and grant Defendants’ motion.
BY THE COURT:
/s/ Lynne A. Sitarski
LYNNE A. SITARSKI
UNITED STATES MAGISTRATE JUDGE
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