YERKE v. AETNA
MEMORANDUM SIGNED BY HONORABLE GERALD J. PAPPERT ON 10/31/17. 10/31/17 ENTERED AND COPIES E-MAILED. (va, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
October 31, 2017
Albert Yerke sued the Aetna Life Insurance Company in state court and Aetna
removed the case to federal court on December 19, 2016, basing federal jurisdiction on
the preemptive effect of the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001, et seq. (ECF No. 1, Ex. A.) Aetna subsequently filed a
motion to dismiss, which the Court granted without prejudice on May 19, 2017. (ECF
Nos. 9 &10.) In its May 19 Order, the Court granted Yerke leave to file, by June 16,
2017, an amended complaint asserting federal claims pursuant to ERISA Section
502(a). (ECF No. 10.) Yerke never did so. On August 24, 2017, Aetna filed a motion to
dismiss for lack of prosecution. (ECF No. 11.) Yerke never responded to the motion.
On October 3, 2017, the Court ordered Yerke to show cause why the case should not be
dismissed for failure to prosecute. (ECF No. 12.) The Court informed Yerke that
failure to do so may result in dismissal of the case. (Id.) Yerke failed to comply with
the Court’s Order. In fact, Yerke has not communicated with the Court since January
20, 2017—more than nine months ago. The Court now grants Aetna’s motion and
dismisses the case with prejudice.
Federal Rule of Civil Procedure 41(b) permits a court to dismiss a suit for failure
to prosecute. Fed. R. Civ. P. 41(b). Courts may dismiss a case with prejudice to enable
them to “manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” Spain v. Gallegos, 26 F.3d 439, 454 (3d Cir. 1994). Generally,
when deciding to use dismissal as a sanction, a district court balances the six Poulis
factors. See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984).
But, in cases where “a litigant’s conduct makes adjudication of the case impossible . . .
balancing under Poulis is unnecessary.” Jones v. New Jersey Bar Ass’n, 242 Fed. App’x.
793, 794 (3d Cir. 2007) (affirming the district court’s dismissal with prejudice, without
analysis of the Poulis factors, because plaintiff did not file an amended complaint by the
imposed deadline); see also Allen v. Am. Fed’n of Gov’t Employees, 317 F. App’x 180 (3d
Cir. 2009) (affirming the district court’s dismissal with prejudice, without analysis of
the Poulis factors, because plaintiff did not file an amended complaint within 15 days of
an order being issued). In Allen, the court explained that the plaintiff’s failure to file
the amended complaint signaled to the court that he was not pursuing his claim. 317
F. App’x at 181. Without the amended complaint, the court was “uncertain of the
contours” of the plaintiff’s claims. Id. Here, Yerke’s silence makes “adjudication of the
case impossible” and the case can be dismissed with prejudice and without any further
analysis. The Court nonetheless addresses the Poulis factors as well.
There is no “magic formula” or “mechanical calculation” when analyzing the
Poulis factors. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008) (citation omitted).
“[N]o single [ ] factor is dispositive,” and “not all of the Poulis factors need be satisfied
in order to dismiss a complaint.” Id. The six factors to consider are:
(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 or the attorney was willful or in bad faith; (5) the effectiveness of
sanctions other than dismissal, which entails an analysis of alternate
sanctions; and (6) the meritoriousness of the claims or defenses.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (emphasis
First, the extent of the party’s responsibility is unknown to the Court. In cases
with pro se litigants, courts usually find the litigant solely responsible for the failure to
prosecute. Briscoe, 538 F.3d at 258–59. Yerke has always been represented by counsel;
in a case where a party is represented by an attorney, the party’s individual
responsibility may be unclear. Patel v. Patel, No. 14-2949, 2015 WL 4391304, at *3
(E.D. Pa. July 17, 2015). The Court does not know whether Yerke has failed to
communicate with his attorney, though Yerke’s counsel has never sought to withdraw
from the case, or whether the lawyer has failed to respond to the motion or the Court’s
directives. This factor is neutral.
Second, the prejudice to Aetna caused by Yerke’s failure to respond weighs
slightly against dismissal. Prejudice is not limited to irreparable harm and it can
include “the burden imposed by impeding a party’s ability to prepare effectively a full
and complete trial strategy.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir.
2003). When a plaintiff fails to attend depositions or court hearings, it may be
prejudicial to the defendant as they are inconvenienced in time and money. See Alexe v.
Lucent Techs., Inc., No. 07–453, 2007 WL 3026864, at *3 (D.N.J. Oct.17, 2007). When a
defendant is forced to “research, write, file, and argue” motions due to a plaintiff’s
conduct, it may be prejudicial to the defendant. See Cummings v. Allstate Ins. Co., No.
11-02691, 2012 WL 2327855, at *6 (E.D. Pa. June 19, 2012). Here, Aetna argues that it
“should not be forced to sit and wait for Plaintiff to take action.” (Def. Mot. at 4, ECF
No. 11.) Aetna has only filed a motion to dismiss for lack of prosecution and has not
lost time preparing or traveling for depositions or court hearings.
Third, the history of dilatoriness weighs heavily in favor of dismissal.
“[E]xtensive or repeated delay or delinquency constitutes a history of dilatoriness” but
conduct that occurs once or twice is insufficient. Adams v. Trustees of New Jersey
Brewery Employees’ Pension Tr. Fund, 29 F.3d 863, 874 (3d Cir. 1994); Briscoe, 538 F.
3d at 260–61. In Mazzuca v. U.S. Sec. Assocs., Inc., the court determined that the
plaintiff’s failure to respond to written discovery, ignoring the court’s order to do so, and
offering no excuse for not doing so amounted to dilatory conduct. 2009 WL 529865, at
*6 (E.D. Pa. Mar. 3, 2009). Here, Yerke failed to amend his complaint, failed to respond
to Aetna’s motion, failed to provide the Court with a required status update, and failed
to offer any explanation for his shortcomings.
Fourth, the willful or bad faith conduct of the party or attorney weighs in favor
of dismissal. Courts have held where there is no indication that a plaintiff’s failure was
from excusable neglect, “the conclusion that their failure is willful is inescapable.”
Palmer v. Rustin, No. 10-42, 2011 5101774, at *2 (W.D. Pa. Oct. 25, 2011); see also
Roman v. City of Reading, 121 F. App’x 955, 960 (3d Cir. 2005) (“Absence of reasonable
excuses may suggest that the conduct was willful or in bad faith.”); Breeland v. Doll,
No. 11-cv-1415, 2012 WL 1424778, at *5 (M.D. Pa. Mar. 21, 2012), report and
recommendation adopted, No. 11-cv-1415, 2012 WL 1454016 (M.D. Pa. Apr. 25, 2012)
(“when the Plaintiff has failed to comply with instructions of the Court directing the
Plaintiff to take specific actions in this case, and has violated the local rules, the Court
is compelled to conclude that the Plaintiff’s actions are not accidental or inadvertent
but instead reflect an intentional disregard for this case and the Court's instructions”).
Yerke’s failures are not the result of excusable neglect.
Fifth, the effectiveness of alternative sanctions weighs in favor of dismissal.
When there is an indication that a plaintiff may not be able to pay the monetary
sanctions, courts have used dismissal as an alternative. See Briscoe, 538 F.3d at 263
(monetary sanctions would be ineffective because a pro se plaintiff was proceeding in
forma pauperis). Although an individual party justly may suffer dismissal as a result of
their counsel’s conduct, the Third Circuit has “increasingly emphasized visiting
sanctions directly on the delinquent lawyer, rather than on a client who is not actually
at fault.” Carter v. Albert Einstein Medical Ctr., 804 F.2d 805, 807 (3d Cir. 1986). In
some instances, courts have determined that threatening sanctions would be futile
because of a party’s failure to communicate with the court. See Schwartzberg v.
Comm’r of Soc. Sec., No.15-4172, 2016 WL 3912853 (D.N.J. July 18, 2016) (finding that
any sanction other than dismissal would be futile and dismissing the case with
prejudice where plaintiff, represented by an attorney, failed to file her statement of
contentions, and ignored the court’s order to show cause why the case shouldn’t be
dismissed); Olsen v. Comm'r of Soc. Sec., No. 15-2889, 2016 WL 2625327, at *1 (D.N.J.
May 9, 2016) (finding that any sanction other than dismissal would be futile and
dismissing the case with prejudice where plaintiff failed to file his statement of
contentions, failed to respond to defendant, and ignored the court’s order to show cause
why the case shouldn’t be dismissed); Aronson v. Buy4Less Esales Ltd., No. 12-415,
2013 WL 5817070 (D.N.J. Oct. 11, 2013) (finding that any sanction other than dismissal
would be futile and dismissing the case with prejudice when plaintiff, represented by an
attorney, failed to appear for a conference or notify the court as to why, failed to reply
to a notification explaining the failure to appear, and had not contacted the court for
fourteen months); Harris v. Crown Castle Intern. Corp., No. 11-1302, 2012 WL 1884383,
at *4 (W.D. Pa. May 7, 2012), report and recommendation adopted, No. 11-1302, 2012
WL 1884359 (W.D. Pa. May 23, 2012) (finding that any sanction other than dismissal
would be futile and dismissing the case with prejudice where plaintiff’s attorney failed
to attend a status conference, return phone calls, respond to discovery requests, or
oppose a motion).
Yerke failed to file an amended complaint by the Court’s deadline, failed to
respond to Aetna’s motion to dismiss the case, and failed to provide the Court with a
status update despite the Court informing him that his case could be dismissed for
failure to do so. Yerke has not communicated with the Court in over nine months.
Threatening Yerke with sanctions would be futile.
Sixth, the meritoriousness of the claim is unknown and at best a neutral factor.
Yerke sued Aetna in state court for breach of contract and for violating the Unfair
Trade Practices Consumer Protection Law (“UTPCPL”) by denying him benefits under
a long-term disability benefits plan maintained with Aetna by his employer, AutoZone.
Once the case was removed, Aetna filed a motion to dismiss, contending that Yerke’s
claims were completely preempted by ERISA Section 502(a), which the Court granted.
(ECF Nos. 4, 9, 10.) Because Yerke has not filed an amended complaint that asserts
any federal claims, the Court is unable to determine whether Yerke has any
meritorious claims under ERISA.
An appropriate order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
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