Oldaker v. Sheeley et al

Filing 18

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the claims of Pltf are DISMISSED with prejudice. The Clerk of Court is directed to CLOSE the case. Signed by Chief Judge Yvette Kane on Jan. 9, 2012. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONAL OLDAKER,
Plaintiff
v.
JOANNE M. SEELEY, et al.,
Defendants

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Civil Action No. 1:09-cv-02170
(Chief Judge Kane)

MEMORANDUM ORDER
Plaintiff Donal Oldaker filed a complaint in this action on November 5, 2009. (Doc. No.
1.) On January 25, 2010, the Court issued an order staying the case pending resolution of
Defendant Taylor, Bean & Whitaker Mortgage Corporation’s (“Taylor, Bean & Whitaker”)
bankruptcy action. (Doc. No. 5.) On June 29, 2010, the Court ordered the parties to file a joint
status report by July 16, 2010. (Doc. No. 10.) Plaintiff’s counsel, Ms. Margaret M. Stuski, filed
a status report on July 18, 2010, stating that she was engaged in settlement discussions with
Taylor, Bean & Whitaker and that she would move to lift the stay once a settlement was
finalized. (Doc. No. 11.) Ms. Stuski requested sixty days to finalize the settlement. (Id.)
After Plaintiff failed to file a motion to lift the stay or otherwise inform the Court of
settlement discussions, the Court ordered the parties to submit a joint status report by October 1,
2010. (Doc. No. 12.) Ms. Stuski filed a status report on October 1, 2010, stating that no
settlement had been reached with Taylor, Bean & Whitaker, that she intended to file a motion for
leave to file an amended complaint, and that she intended to file a motion to lift the stay in order
to proceed against the other Defendants. (Doc. No. 13.) On December 17, 2010, after Plaintiff
failed to file those, or any other, motions with the Court, the Court ordered the parties to submit
a joint status report by December 29, 2010. (Doc. No. 16.) The parties failed to respond to the
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Court’s order. Accordingly, on January 27, 2011, the Court ordered the parties to submit a joint
status report by February 4, 2011 and noted that failure to file a status report may result in
dismissal of the action for failure to prosecute. (Doc. No. 17.) To date, the parties have not
responded to the order. For the following reasons, the Court will dismiss Plaintiff’s action.
District courts have the inherent power to dismiss an action for failure to prosecute sua
sponte. Chambers v. NASCO, Inc., 50 1U.S. 32, 44 (1991). Nevertheless, because of the
severity of a dismissal sanction, districts court should provide a plaintiff with an opportunity to
explain his reasons for failing to prosecute his action or comply with court orders prior to
dismissing a case sua sponte. Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008). After a
plaintiff is given this opportunity, the United States Court of Appeals for the Third Circuit has
identified six factors a court should consider before dismissing an action for failure to prosecute:
(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 t he
conduct of the party or the attorney
was willful or in bad faith; (5) the
effectiveness of sanctions other than dism issal, which entails an
analysis of alternative sanctions; and (6) the m eritoriousness of the
claim or defense.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (emphases omitted).
None of these factors is dispositive, and “[e]ach factor need not be satisfied for the trial court to
dismiss a claim.” Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). However, the
factors “should be weighed by the district courts in order to assure that the ‘extreme’ sanction of
dismissal . . . is reserved for the instances in which it is justly merited.” Poulis, 747 F.2d at 870.
First, with respect to Plaintiff’s personal responsibility, the Court finds that Plaintiff’s
counsel, Ms. Stuski, is primarily responsible for the failure to comply with the Court’s orders or

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otherwise prosecute the instant action. But Plaintiff cannot be totally devoid of responsibility
solely because he is represented by counsel in this action. See Poulis, 747 F.2d at 868. While
the Court may excuse a plaintiff’s ignorance of the Federal Rules of Civil Procedure, the Court
notes that, in this case, a reasonably diligent plaintiff would have taken steps to either ensure that
his attorney was actively pursuing this litigation or to retain new counsel if his attorney was not
willing or able to do so.
Second, the Court will address the prejudice to Defendants caused by Plaintiff’s failure to
prosecute his claims. “Generally, prejudice includes the irretrievable loss of evidence, the
inevitable dimming of witness memories, or the excessive and possibly irremediable burdens or
costs imposed on the opposing party.” Briscoe, 538 F.3d at 259 (internal quotation marks and
citation omitted). But “prejudice is not limited to ‘irremediable’ or ‘irreparable’ harm. It also
includes the burden imposed by impeding a party’s ability to prepare effectively a full and
complete trial strategy.” Id. (internal citations and quotation marks omitted). The instant
litigation has been pending for over two years, and neither Plaintiff nor Ms. Stuski has given any
indication that Plaintiff plans to return to this case. Further, it has been over fifteen months since
Ms. Stuski filed a status report with the Court, indicating that she intended to lift the stay and
proceed with Plaintiff’s claims against Defendants, save for Taylor, Bean & Whitaker. (Doc.
No. 13.) As a result, Defendants have been given no information regarding Plaintiff’s claims
beyond the allegations contained in the complaint. The Court, therefore, concludes that this
prejudice to Defendants weighs in favor of dismissal.
Third, the Court will consider Plaintiff’s history of dilatoriness before the Court.
“Extensive or repeated delay or delinquency constitutes a history of dilatoriness, such as

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consistent . . . tardiness in complying with court orders.” Id. at 260. Plaintiff’s conduct in this
litigation has not been acceptable. Plaintiff has taken no action in this case for over fifteen
months and failed to even attempt to comply with the Court’s December 17, 2010 and January
27, 2011 orders, the latter of which warned him that failure to respond to the order may result in
dismissal of the action for failure to prosecute. It appears that Plaintiff has completely ignored
that order as well as this litigation in its entirety. Accordingly, the Court finds that Plaintiff’s
dilatoriness has been significant and weighs heavily in favor of dismissal.
With respect to the fourth factor, the Court must consider whether the conduct of Plaintiff
or his counsel was “the type of willful or contumacious behavior which was characterized as
flagrant bad faith.” Id. at 262. The Court finds that the conduct of Plaintiff and Ms. Stuski
demonstrates a willful disregard for the Court’s directives and the opposing parties. This factor,
therefore, weighs in favor of dismissal.
Regarding the fifth factor, the Court must consider whether alternative sanctions would
be effective. Because the Court “cannot envision a[n] [alternative] sanction” that would be
effective in bringing about Plaintiff’s compliance with Court orders in this action, the Court
concludes that this factor weighs in favor of dismissal. See id.
Finally, in determining whether a plaintiff’s claims are meritorious, courts generally use
the standard for a motion to dismiss for failure to state a claim. Id. at 263. Thus, a claim is
deemed meritorious “when the allegations of the pleadings, if established at trial, would support
recovery by plaintiff.” Id. Plaintiff’s claims appear to be facially meritorious; his complaint is
thirty-five pages in length, includes twelve counts, and avers facts in support of each alleged
violation. (Doc. No. 1.) Accordingly, this factor will weigh against dismissal of the action.

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In balancing the Poulis factors, there is no “magic formula” or “mechanical calculation”
to determine how they are considered. Briscoe, 538 F.3d at 263. Instead, it is within this
Court’s discretion to balance these factors. Id. Upon weighing the factors, the Court finds that
dismissal is warranted in this action. In reaching this decision, the Court is especially mindful of
the fact that Plaintiff has taken virtually no action to pursue this litigation other than file a
complaint. While this action has been stayed since January 25, 2010, it has been over fifteen
months since Ms. Stuski indicated that she intended to file a motion to lift the stay against all
Defendants except for Taylor, Bean & Whitaker. She has failed to file such a motion and has
also made no effort to respond to the Court’s orders. The conduct of Plaintiff and Ms. Stuski,
quite simply, indicates that they have no intention whatsoever to further pursue Plaintiff’s
claims.1 Such conduct cannot be tolerated.
ACCORDINGLY, on this 9th day of January 2012, IT IS HEREBY ORDERED
THAT, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, the claims of Plaintiff
are DISMISSED WITH PREJUDICE. The Clerk of Court is directed to close the case.
S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania

The Court notes that Ms. Stuski is counsel for the plaintiff in a similar case pending
before this Court, Hocker v. CitiMortgage, Inc., 1:09-cv-00973. In Hocker, Ms. Stuski filed five
responses to Court orders during the past two months, indicating that there are no extraordinary
circumstances excusing her lack of diligence in the present matter.
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