WEINHOFER et al v. WEIS MARKETS, INC.

Filing 42

MEMORANDUM. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 12/29/16. 12/29/16 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF'S, E-MAILED.(mas, ) Modified on 12/29/2016 (mas, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
:
KARLA J. WEINHOFER, and JOSEPH S. :
SPAGNOLA,
:
:
Plaintiffs,
:
:
v.
:
CIVIL ACTION NO. 15-CV-05002
:
WEIS MARKETS, INC.
:
:
Defendant.
:
____________________________________:
Henry S. Perkin, M.J.

December 29, 2016
MEMORANDUM

This matter is before the Court on Defendant, Weis Markets, Inc.’s Motion for Sanctions
Directed to Plaintiffs. A Hearing on Defendant’s motion for sanctions was held before the Court
on December 13, 2016. Following the Hearing, a Supplemental Memorandum of Law in
Support of Motion for Sanctions was filed by Defendant on December 16, 2016, and a Second
Supplemental Memorandum of Law was filed by Defendant on December 20, 2016. Having
considered the motion, supporting documentation, and oral argument presented by counsel for
Defendant at the December 13, 2016 hearing, the Court is prepared to rule on this matter.
Background
Based upon the record, the relevant facts and procedural history are as follows:
Plaintiffs Karla J. Weinhofer (“Weinhofer”) and Joseph S. Spagnola (“Spagnola”)
initiated this matter by filing a Complaint against Defendant Weis Markets, Inc. (“Weis”)
following an alleged slip-and-fall accident in a grocery store operated by Weis. See Dkt. 1.
Plaintiffs claim Weis allowed a liquid to exist on the store’s floor for an unreasonable amount of

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time and without a warning of the spill, and Weis’ negligence in doing so caused Weinhofer to
slip and fall. See id. Further, Weinhofer claims to have suffered a knee injury and several other
bodily injuries, including a traumatic brain injury. See id. In addition to this claim against Weis,
Spagnola also brings a claim for loss of consortium relating to his wife’s injuries. See id.
Plaintiffs seek consequential, compensatory, and punitive damages against Defendant. See id.
Defendant filed an Answer to the Complaint along with Affirmative Defenses on October
13, 2015. See Dkt. 5. Following a series of Rule 16 Conferences and status conferences,
counsel for Plaintiffs filed a Motion to Withdraw as Attorney on January 20, 2016. See Dkt. 14.
On January 29, 2016, the Motion was granted and the Order was mailed to Plaintiffs’ last known
mailing address. See Dkt. 16. On March 10, 2016, Plaintiffs were notified that they were
expected to proceed with or without counsel. See Dkt. 19. The immediate action was referred to
the undersigned on April 28, 2016. See Dkt. 29. Following a Rule 16 Conference held on June
1, 2016, 1 the parties were notified of the dates and deadlines for discovery, pretrial motions,
motion for summary judgment, and several other case management deadlines related to the
action. See Dkt. 33 and 34.
On October 6, 2016, Defendant filed a Motion for Sanctions. See Dkt. 35. Plaintiffs
were served with a copy of the Motion, memorandum, and proposed order. 2 See id. On
November 22, 2015, the Court ordered that a Hearing for oral argument on Defendant’s Motion
for Sanctions would be held on December 13, 2016. See Dkt. 36. The Court’s Order was

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Plaintiffs did not participate in the telephonic Rule 16 scheduling conference despite having received notice of
same. See Dkt. 32.
2
This Court notes that in addition to the notification of the filing of the motion for sanctions by the Clerk’s Office
(Dkt. 35), counsel for Defendant mailed a copy of the motion for sanctions with supporting memorandum of law to
Plaintiffs on October 7, 2106. See Dkt. 41. In addition, counsel for Defendant emailed a copy of the motion for
sanctions to Plaintiff Weinhofer at her last known email address on that same date, October 7, 2016. See id.
Plaintiff Weinhofer confirmed receipt of the motion and its attachments.

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entered and delivered to both parties by the Clerk’s Office. 3 See id. Plaintiffs did not appear for
the Hearing scheduled for December 13, 2016, and they did not respond to the Court’s Order.
See Dkt. 37. Counsel for Defendant appeared at the December 13 Hearing and provided oral
argument with respect to the motion for sanctions. Following the Hearing, the Court ordered
both parties to submit supplemental briefs and/or responses to Defendant’s Motion for Sanctions.
See Dkt. 38. The Court’s Order was entered and delivered to both parties. See id. Defendant
filed a Supplemental Memorandum in Support of Motion for Sanctions on December 16, 2016.
See Dkt. 40. A Second Supplemental Memorandum was filed on December 20, 2016. See Dkt.
41.
Defendant’s Motion for Sanctions contains information relevant to the steps Defendant
took in an effort to advance discovery and move this action forward. See Dkt. No. 35. The
Court finds the following uncontested averments relevant to its determination of this matter:
In December of 2015, former counsel for the Plaintiffs and Weis took steps to
arrange for the depositions and independent medical examinations of the Plaintiffs, who
are Texas residents, to occur in Philadelphia in January 2016.
This cooperative effort required numerous telephone calls, correspondence,
numerous communications with experts and other representatives.
The parties agreed Plaintiffs would appear in Pennsylvania for their depositions
and examinations. Thus, Weis accommodated Plaintiffs’ scheduling needs and agreed to
complete depositions and expert activity in a condensed schedule over several days.
In fact, Weis agreed to provide transportation to Plaintiffs to and from their hotel
in Philadelphia, PA, and agreed to complete depositions on a Sunday at[Weis] counsel’s
Philadelphia, PA office.
Weis further agreed to provide transportation to Plaintiffs to and from IME’s with
neurology and neuropsychology experts.
On December 30, 2015, former counsel for the Plaintiffs confirmed Plaintiffs’
3

With respect to the Hearing Scheduling Order, this Court notes that in addition to notification by the Clerk’s
Office, counsel for Defendant mailed a copy of the Order to Plaintiffs on November 29, 2016. See Dkt. 41.
Counsel for Defendant also emailed a copy of the Hearing Scheduling Order to Plaintiff Weinhofer. See id.

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availability on January 24, 2016 for depositions, and January 25 and 26, 2016 for
independent medical examinations.
Thereafter, on January 6, 2016, Notices of Deposition were distributed for the
confirmed date provided by [Plaintiffs’] counsel.
Plaintiffs independent medical examinations were properly Noticed and
scheduled, and Weis submitted records to the experts at its own cost and expense.
On January 17, 2016, former counsel for the Plaintiffs advised that their
representation had been terminated.
Thereafter, on January 19, 2016, Plaintiff Weinhofer wrote to Weis unilaterally
canceling her depositions and examinations.
This unilateral action required the cancellation of the three IMEs that had been
scheduled for the Plaintiff, along with depositions of the Plaintiffs themselves.
On March 15, 2016, counsel for Weis re-engaged in efforts to schedule the IMEs
and depositions of the Plaintiffs.
In response, Plaintiff [Weinhofer] suggested that she was considering appearing for
these activities between May 13, 2016 and May 18, 2016 in Pennsylvania.
Accordingly, on May 2, 2016, Weis scheduled IMEs with its experts to occur on
May 13, 2016, May 16, 2016 and May 18, 2016.
On May 3, 2016, Plaintiff [Weinhofer] responded in a manner that appeared to confirm
the proffered IME dates.
Notices of these activities were properly issued on May 4, 2016.
Despite numerous requests for the provision of Plaintiffs’ travel schedule in order
to enable Weis to take steps to schedule depositions, Plaintiff failed to respond.
Therefore, Weis issued Notices of Depositions for the Plaintiffs to occur on May
19, 2016, to coincide with Plaintiffs' expected travel itinerary.
Thereafter, on May 10, 2016, despite failing to provide dates for depositions upon
Weis’s request, Plaintiffs sent an email refusing to appear on May 19, 2016 for their
depositions, without providing any specific reason (e.g. such as prearranged travel,
etc.).
On May 11, 2016, having not received confirmation as to Plaintiffs’ intentions on
traveling for their noticed examinations and depositions, [counsel for Weis] sent a
follow up E-mail to Plaintiffs.

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On May 11, 2016, just two (2) days prior to a scheduled IME, Plaintiffs sent an
E-Mail demanding that all activity be rescheduled.
As a result of the Plaintiffs’ refusal to appear for their properly noticed and
scheduled examinations, Weis was charged cancellation fees in the amount of
$2,200.00.
Weis’s Notices had expressly indicated that such fees would be borne by the
cancelling party.
Thereafter, upon communication with the Court, it was agreed that a telephonic
scheduling conference would be beneficial for the parties to coordinate the necessary
discovery activities.
Plaintiff failed to contact chambers and participate in the scheduled conference [on June
1, 2016].
This Honorable Court entered a scheduling Order [on June 6, 2016].
Thereafter, in a good faith effort to attempt scheduling of the activities for a third
time, on July 8, 2016, Weis issued Notices of Examinations to the Plaintiff. The
scheduled activity was to occur on August 29, 30, 2016 and September 2, 2016,
providing Plaintiff nearly two months to make the necessary and appropriate
arrangements.
By email dated August 15, 2016, Weis served Third Notices of Depositions for
the Plaintiffs.
Plaintiffs had yet to respond to the Notices of Examinations or Notices of
Depositions and on August 22, 2016, Weis attempted to confirm Plaintiffs’ appearances
for the scheduled activity.
Plaintiffs failed to timely reply to Weis’s attempts to confirm the scheduled
activity.
On Friday, August 26, 2016, three days before the first scheduled IME, Weis
again wrote to Plaintiff to confirm attendance.
The weekend went by, and on Monday, August 29, 2016, Plaintiff had still not
confirmed her attendance or refusal to appear.
At 5:42 p.m. on Monday, August 29, 2016, after the time for her scheduled
appearance for an IME with Dr. Peter Badgio had already passed, Plaintiff wrote to
[counsel for Weis] in an apparent attempt to justify her non-appearance, refusal to
respond to counsel, and decision to stay in Texas, therefore, once again canceling all
scheduled activity.

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[Plaintiff attached] a purported note from a Dr. Lee Pollack, dated May
12, 2016, indicating that Plaintiff was not physically or mentally able to travel by air.
Plaintiff has offered no explanation as to why this letter was not produced back in
May of 2016 when she cancelled “Round II” of the scheduled activity, or why she
waited several more months and after blowing off an examination with Dr. Badgio (for
the 3rd time) to supply this purported medical excuse.
Once again, as a result of Plaintiffs’ last minute cancellation, Defendant incurred
substantial cancellation fees in the amount of $2,575.00.
In Plaintiffs E-mail [dated August 29, 2016] she suggests that she would appear
and cooperate for all testing or depositions that can be scheduled “there,” presumably
meaning Texas.
Plaintiffs conduct to date has shown a profound disrespect for this Honorable
Court.
Plaintiffs conduct to date has shown a profound disrespect for counsel, Weis,
several doctors and experts, court reporters, and counsel’s staff.
[It does not appear that this Court can] accept Plaintiffs’ representations as true, that
is, that they will fully cooperate with activity occurring in Texas, [it does not appear to
this Court] that Plaintiffs would actually cooperate and continue to cooperate in this
matter.
Regardless, Plaintiffs chose to file this civil litigation in [Pennsylvania] where the
accident occurred.
Plaintiffs are not entitled to require Weis to retain Texas-based medical experts, or by
default limit the experts Weis can obtain and terminate its relationship with existing
medical and vocational experts who are now familiar with the case (and Weis has
compensated for their efforts to date).
While counsel [may be] willing to travel to conduct depositions, Plaintiffs have made
no offer to compensate Weis for conducting activity in Texas, even if they were to
actually cooperate and appear for their depositions. Plaintiffs have done nothing to
assuage counsel that flying to and from Texas would actually result in completed
depositions as opposed to wasted travel time away from other obligations, professional
and personal.
Plaintiffs conduct has resulted in thousands of dollars in wasted attorney, paralegal and
secretarial time and expense - all of which has been absorbed by Weis and none of
which have been borne by Plaintiffs.
Plaintiffs have failed to reimburse the nearly $5,000 in cancelation fees Weis has

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incurred to date.
Weis has expended exhaustive efforts to secure Plaintiffs' cooperation, and those
efforts have been met with repeated refusals to appear, untimely excuses, and no
apparent respect for the time and efforts of others.
See Dkt. 35 (Paragraphs 9-54 of Defendant’s motion for sanctions)(citations to exhibits omitted).
Standard of Review
Pursuant to Federal Rule of Civil Procedure 41(b), a court may dismiss a plaintiff’s case for
failure to prosecute. See Fed. R. Civ. P. 41(b). The decision to dismiss a case pursuant to 41(b)
is within the discretion of the trial court. Burns v. Glick, 158 F.R.D. 354, 355 (E.D. Pa.
1994)(citations omitted). “The authority of a court to dismiss sua sponte for lack of prosecution
has generally been considered an ‘inherent power,’ governed not by rule or statute but by the
control necessarily vested in courts to manage their own affairs . . . to achieve the orderly and
expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-631 (1962).
Further, although Plaintiffs are proceeding pro se, they are subject to the sanction of dismissal.
Richardson v. Cox, 1993 U.S. Dist. LEXIS 16492, No. 91-7830, 1993 WL 481723, at *2 (E.D.
Pa. Nov. 17, 1993). In order to decide whether to dismiss a case, a district court must balance
the following factors:
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 alternative
sanctions; and (6) the meritoriousness of the claim or defense.
Poulis v. State Farm Fire and Casualty Co., 747 2.d 863, 868 (3d Cir. 1984).
It is not required that all of the factors be satisfied for a district court to find for a
dismissal. See Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Further, “in balancing the
Poulis factors, we do not have a ‘magic formula’ or ‘mechanical calculation’ to determine

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whether a District Court abused its discretion in dismissing a plaintiff’s case.” Briscoe v. Klaus,
538 F.3d 252, 263 (3d Cir. 2008) (citing Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).
Discussion of Poulis Factors
1. The extent of Plaintiff’s personal responsibility
Plaintiffs can be held personally responsible for their failure to advance this action. Pro
se plaintiffs can also be held responsible for their failure to attend a pretrial conference or
otherwise comply with a court’s orders. See Briscoe, 538 F.3d at 258. Further, “it is logical to
hold a pro se plaintiff responsible for delays in [her] case because a pro se plaintiff is solely
responsible for the progress of [her] case, whereas a plaintiff represented by counsel relies, at
least in part, on his or her attorney.” Id. at 258-259.
Plaintiff’s counsel filed a Motion to Withdraw on January 20, 2016, and it was granted on
January 29, 2016. See Dkt. No. 14, 16. As mentioned previously, the Court’s Order was entered
and copies were mailed to Plaintiffs. See Dkt. 16. On March 10, 2016, Plaintiffs were notified
that they were expected to proceed with or without counsel and were expected to comply with
the Court’s Orders and Rules. See Dkt. 19. Following their counsel’s withdrawal, Plaintiffs
have continued this action pro se.
According to Defendant’s Motion for Sanctions and Supplemental Memorandum in
Support of Motion for Sanctions, Defendant engaged in exhaustive efforts to conduct depositions
and Independent Medical Examinations (“IME’s”) of Plaintiffs. Defendant contends that it made
three scheduling attempts with Plaintiffs, including appointments on and between January 24-26,
2016, May 13-18, 2016, and August 29-30 to September 2, 2016. Further, Defendant alleges
that Plaintiffs gave “belated cancelations, excuses, or no communication whatsoever.” 4

4

See Def. Supp. Memo. p. 3

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As pro se plaintiffs, Plaintiffs were expected to proceed with and engage in the action.
Plaintiffs, however, have failed to attend conferences and hearings held by this Court. In
addition, Plaintiffs have not cooperated with repeated requests for discovery. As noted by the
aforementioned case law, Plaintiffs can be held responsible for their lack of action in this matter.
2. Prejudice to the Defendant
When evaluating the second Poulis factor, evidence of prejudice “would bear substantial
weight in support of a dismissal or default judgment.” Adams v. Trustees of the N.J. Brewery
Employees’ Pension Trust Fund, 29 F.3d 863, 873-874 (3d Cir. 1994) (internal quotation marks
and citations omitted). Prejudice includes “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); Curtis T. Bedwell & Sons, Inc. v. Intl’ Fidelity Ins. Co., 843 F.2d 683, 693694 (3d Cir. 1988). Examples of prejudice also include the “excessive and possibly irremediable
burdens or costs imposed on the opposing party,” “deprivation of information through noncooperation with discovery, and costs expended obtaining court orders to force compliance with
discovery.” Adams, 29 F.3d at 874.
Defendant avers that Plaintiffs’ actions have prevented it from obtaining additional
information regarding Plaintiffs’ claim beyond what it is contained in the Complaint and general
written responses related to discovery. Defendant further contends that it has been unable to
conduct a single medical or vocational examination of Weinhofer, and such examinations are
important to perform where the information that can be obtained directly relates to the
allegations placed forth by Plaintiffs. A failure to obtain such information can affect proper
preparation in the action for both parties. Further, Defendant alleges that it incurred several

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expenses following the cancellation of the scheduled depositions and IMEs, in addition to the
extensive effort taken to coordinate with Plaintiffs over the course of the past year.
Where Defendant has incurred great costs relating to Plaintiffs’ actions, where Plaintiffs
have failed to diligently advance the action, and where the failure to obtain information through
necessary discovery would affect a defense to the allegations, the Court can reasonably find
Defendant would be prejudiced by Plaintiffs’ actions.
3. History of dilatoriness
“Extensive or repeated delay or delinquency constitutes a history of dilatoriness.”
Adams, 29 F.3d at 874. “Time limits imposed by the rules and the [C]ourt serve an important
purpose for the expeditious processing of litigation.” Poulis, 747 F.2d at 868. In alleging
Plaintiffs’ history of dilatoriness, Defendant details a chronology, which demonstrates the
parties’ actions in the instant case over the past year. Defendant further alleges that Plaintiffs’
actions ignore discovery and expert report deadlines set forth by this Court.
Based on the evidence in the record, and considering the steps taken by Defendants to
advance the action, we conclude that Plaintiffs’ delayed actions, late cancellations, and failure to
respond or appear for court proceedings demonstrate a history of dilatoriness.
4. Whether the conduct was willful or in bad faith
Conduct that demonstrates a failure to comply with the Court’s Orders and a dragging out
of the case can be considered willful conduct. See Emerson v. Thiel College, 296 F.3d 184, 191
(3d Cir. 2001). Generally, “willfulness involves intentional or self-serving behavior,” and goes
beyond mere negligence. Poulis, 747 F.2d at 868-9; Emerson, 296 F.3d at 191. In the instant
action, Defendants allege that Plaintiffs’ actions demonstrates willful conduct by cancelling
depositions and IMEs close to the scheduled appointment or after the appointment had passed.

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As a result of such cancellations, Defendants incurred several expenses for the cancellation fees
and for the costs of attempting to advance discovery.
Based on the Defendant’s averments and the Motion for Sanctions, the Court takes note
of Plaintiffs’ delayed responses and cancellations. Over the past year, there have been three
scheduling attempts. The first attempt was cancelled after Plaintiffs refused to attend on account
of terminating her legal counsel; the second appointment was cancelled only two days prior to
the scheduled date, and the third attempt was also cancelled when Plaintiffs failed to notify
Defendant that they would not be attending. Specifically, after the third scheduled appointment
on August 29, 2016 had already passed and Plaintiffs had not attended the IME, Plaintiffs
emailed Defendant that she would not be traveling to Pennsylvania due to a disability. Plaintiff
attached a letter from her neurologist that was dated May 11, 2016, which is approximately three
months before the August 29, 2016 appointment. If Plaintiffs were aware of Weinhofer’s
limitations on travelling, Plaintiffs should have notified Defendant of the situation rather than
allowing Defendant to set up another appointment for an IME, only to cancel it after the
appointment had passed. When scheduling each of these appointments, Defendant has also made
it clear that a cancellation of the appointment would result in cancellation fees.
Therefore, the Court finds the evidence in the record convincing to find that Plaintiffs’
conduct in the instant action could be considered willful.
5. The effectiveness of sanctions other than dismissal
In determining whether dismissal is an appropriate sanction, the Court must consider the
availability of sanctions alternative to dismissal. Poulis, 747 F.2d at 869. “When a Plaintiff fails
to prosecute his action, outside of dismissal of the action, the Court cannot envision a sanction
that would be appropriate.” Briscoe, 538 F.3d at 262. Where an attorney has caused the delay

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and noncompliance in proceedings, it would not be justified to dismiss an action. Emerson, 296
F.3d at 191. However, where a Plaintiff is pro se, the Plaintiff can be held liable for his or her
own noncompliance. See Briscoe, 538 F.3d at 262.
In the instant action, pro se Plaintiffs caused the delay in discovery and in advancing this
action. Despite being aware of the possible monetary sanctions, Plaintiffs have failed to take any
steps to appear or prosecute. Therefore, the Court finds the most effective sanction is dismissal
of the action.
6. The meritoriousness of the claim
Under Poulis, a claim has merit when the allegations in the pleadings “would support
recovery by the plaintiff.” Poulis, 747 F.2d at 870. “The meritoriousness factor is neutral and
not dispositive.” Emerson, 296 F.3d at 192. Plaintiffs have only made facially meritorious
claims, but have not taken any steps to substantiate their allegations made in the pleadings. The
Court is unable to ascertain whether or not Plaintiffs’ claim may be considered meritorious based
on the evidence on the record.
Conclusion
Based on a balance of the Poulis factors and based on the evidence in the record,
Defendant’s Motion for Sanctions will be granted in part. Any requests for monetary sanctions
directed to Plaintiffs for reimbursement of medical examination cancellation fees and legal fees
and expenses are denied. With respect to Defendant’s request for dismissal of the action as a
result of Plaintiffs’ failure to prosecute and appear, the Motion is granted. An appropriate Order
follows.

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