Morris et al v. Kesselring et al
Filing
156
MEMORANDUM AND ORDER granting 117 Motion to Dismiss. The Clerk or Court is directed to mark the case as CLOSED. Signed by Honorable A. Richard Caputo on 5/9/11 (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID L. MORRIS, PAMELA MORRIS,
and RANDY MORRIS,
CIVIL ACTION NO. 1:09-CV-1739
Plaintiffs,
(JUDGE CAPUTO)
RONALD KESSERLING, et al.,
Defendants.
MEMORANDUM
Presently before the Court is a Motion to Dismiss Pursuant to Fed. R. Civ. P. 41(b)
brought by Defendants Brady, Kesselring, James Rowe, Whitson, Smith, and the Borough
of Hanover. For the reasons stated below, the Motion will be granted.
BACKGROUND
A concise history of this suit is provided by Magistrate Judge Prince in his
Memorandum Opinion dated October 27, 2010 (Doc. 102) and need not be recapitulated
here. The facts giving rising to the suit allegedly resulted from the termination of a
relationship between Plaintiff Pamela Morris and Defendant Ronald Kesselring, which led
to Plaintiffs being retaliated against by the Defendants in order to harass and intimidate
them and deprive them of their constitutional rights. Plaintiffs originally initiated this suit on
September 9, 2009 (Doc. 1) and then filed an Amended Complaint on February 2, 2010
(Doc. 45). Defendants then filed a number of Motions to Dismiss as well as a Motion for a
More Definite Statement pursuant to Federal Rule of Civil Procedure 12(e). Judge Conner
referred these motions to Magistrate Judge Prince, who granted the Motion for a More
Definite Statement. Citing the “sweeping statements and generalized allegations” of the
Amended Complaint as well as that “those averments [in the amended complaint]
containing facts are devoid of particularized details as to time and date, person(s) involved,
and other basic tenants of proper notice pleading,” the Magistrate Judge ordered Plaintiffs
to “provide factual information corresponding to the allegations of the amended complaint”
when submitting further pleadings. (Doc. 102.) The Magistrate Judge also advised Planitiffs
to seek the assistance of additional counsel. Plaintiffs filed Objections and sought to have
the order struck on the grounds that it was an impertinent personal attack on Plaintiffs’
counsel. The objections were denied by Judge Connor and the Plaintiffs were ordered to
file their Second Amended Complaint by December 28, 2010. (Doc. 107.) However, in their
Second Amended Complaint, Plaintiffs’ counsel has refused to heed the directive of
Magistrate Judge Prince and the Order of Judge Conner and has submitted a Second
Amended Complaint whose factual allegations are essentially identical to those of the
Amended Complaint. After the Second Amended Complaint was filed, several Motions to
Dismiss were filed by Defendants (Docs. 117, 119, 123, 126, 127), including a Motion to
Dismiss pursuant to Fed. R. Civ. P. 41(b). While the Court is extremely reluctant to grant
a Rule 41(b) Motion, the inexplicable truculence of Plaintiffs and their counsel cannot be
ignored, and the Motion will therefore be granted.
DISCUSSION
Fed. R. Civ. P. 41(b) provides:
If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule — except one for lack of jurisdiction, improper
venue, or failure to join a party under Rule 19 — operates as an adjudication on
the merits.
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While a district court has authority under 41(b) to dismiss a suit, the Third Circuit has
emphasized that dismissal is “extreme,” and is a “sanction of last, not first, resort.” Poulis
v. State Farm Fire & Cas. Co., 747 F.2d 863, 869 (3d Cir. 1984). Therefore, prior to the
dismissal of an action, a district court is required to make explicit findings regarding the
factors enumerated in Poulis. See, e.g., Moultrie v. Luzerne County Prison, 272 Fed. Appx.
208, 209 (3d Cir. 2008) (citing Emasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir.
1987)). The Poulis factors the district court must 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 ... 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.
Poulis, 747 F.2d at 868. While every Poulis factor does not need to be satisfied in order for
the trial court to dismiss a claim, each factor needs to be weighed in order to assure that
dismissal is merited. Ware v. Rodale Press, Inc., 322 F.3d 218 (3d Cir. 2003).
Here, a review of the Poulis factors amply demonstrates that dismissal is merited.
First, the Court finds that Plaintiffs are solely responsible for failing to comply with the
Court’s prior orders. In Magistrate Judge Prince’s Memorandum, he directed Plaintiffs to
amend their Amended Complaint with factual information corresponding to the complaint’s
allegations and to seek alternate or additional counsel. Rather than follow either of these
directives, the Plaintiffs objected to the Memorandum and sought to have it struck on the
grounds that Magistrate Prince’s commonsensical directive was a personal attack on
Plaintiffs’ counsel. After the Memorandum was affirmed and the Plaintiffs were ordered to
comply, they chose to simply ignore the Order and instead filed a Second Amended
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Complaint that is indistinguishable from the Amended Complaint.
Second, the Court finds the prejudice suffered by Defendants is substantial.
Although this suit was initiated almost two years ago, due to the sheer incoherence of
Plaintiffs’ filings the Defendants have been unable to prepare effective legal strategies to
counter Plaintiffs’ claims.
Third, the Court finds a willful dilatoriness on the part of the Plaintiffs. Rather than
adhere to the Magistrate Judge Prince’s non-dispositive Order, Plaintiffs chose instead to
try and have it stricken. Once the Order was affirmed by Judge Conner, Plaintiffs chose
simply to ignore it. These actions have led to substantial delays in the suit’s moving forward
and have been wholly Plaintiffs’ doing.
Fourth, the Court finds Plaintiffs’ behavior to have been willful. In fact, Plaintiffs have
made a point of defying the Court. First by attempting to have Magistrate Judge Prince’s
non-dispositive Order stricken and then by ignoring Judge Conner’s affirmation in submitting
their Second Amended Complaint. It is also clear from Plaintiffs’ Brief supporting their
Objection to Magistrate Prince’s non-dispositive Order that Plaintiffs’ counsel is not solely
to blame for this course of action, as the Brief makes clear the Order was discussed with
the parties.
Fifth, the Court finds that no sanction short of dismissal is appropriate here.
Plaintiffs’ scornful refusal to abide by the clear and reasonable Order of the Court is a direct
affront to the judicial process. Further, the Court’s prior directives and warnings have not
only fallen on deaf ears, they have been treated with outright contempt. Assessing lawyer’s
fees and costs to Plaintiffs for their actions would not properly address the graveness of this
situation.
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Sixth, the Court finds that it cannot assess the meritoriousness of Plaintiffs’ claims
given the prolix character of the Second Amended Complaint. Although Plaintiffs claim
harassment and intimidation by various police officers, it is hard to discern more from the
sweeping and muddled allegations that make up the Second Amended Complaint.
Assessing the actions of Plaintiffs and their counsel in light of the Poulis factors, the
Court finds dismissal of the suit to be more than justified.
CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss (Doc. 117) pursuant
to Fed. R. Civ. P. 41(b) will be granted. An appropriate order follows.
5/9/11
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
5
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID L. MORRIS, PAMELA MORRIS,
and RANDY MORRIS,
CIVIL ACTION NO. 1:09-CV-1739
Plaintiffs,
(JUDGE CAPUTO)
RONALD KESSERLING, et al.,
Defendants.
ORDER
NOW, this
9th
day of May, 2011, IT IS HEREBY ORDERED that
Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 41(b) (Doc. 117) is
GRANTED. The Clerk of Court is directed to mark the case as CLOSED.
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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