Dunkleberger v. Seeley et al

Filing 14

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
PAMELA A. DUNKLEBERGER,
Plaintiff
v.
JOANNE M. SEELEY, et al.,
Defendants

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Civil Action No. 1:10-cv-00081
(Chief Judge Kane)

MEMORANDUM ORDER
Plaintiff Pamela A. Dunkleberger filed a complaint in this action on January 13, 2010.
(Doc. No. 1.) On that same date, the Court issued summons to Plaintiff for service on, inter alia,
Defendants Joanne M. Seeley, S&D Property Solutions, LLC, and JMS Business Solutions,
LLC. On June 2, 2010, the Clerk of Court sent a letter to Plaintiff’s counsel, Ms. Margaret M.
Stuski, directing her to file a status report on or before June 14, 2010, informing the Court of the
dates on which each Defendant was served and including details regarding her intent to file a
motion for default. (Doc. No. 9.) Ms. Stuski failed to file a status report. As of October 25,
2010, proof of service had not been filed with the Court as to any Defendant, and the Court
issued an order on that date to show cause why Defendants Seeley, S&D Property Solutions,
LLC, and JMS Business Solutions, LLC should not be dismissed for failure to serve in
accordance with Rule 4(m) of the Federal Rules of Civil Procedure. (Doc. No. 11.) On
November 1, 2010, Ms. Stuski filed a reply to the Court’s order in letter form, stating that the
aforementioned Defendants were served on May 4, 2010. (Doc. No. 12.) Ms. Stuski also
expressed her intent to file for entry of default against those Defendants. (Id.) After two months
passed with no activity in the action, the Court issued an order on February 1, 2011, directing
Plaintiff to show cause why the action should not be dismissed for Plaintiff’s failure to prosecute
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her claims. (Doc. No. 13.) To date, Plaintiff has 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, district courts should provide a plaintiff with an opportunity to
explain her reasons for failing to prosecute her 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 discove ry; (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 dism issal, which entails an
analysis of alternative sanctions; and ( 6) the meritoriousness 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 order or
otherwise prosecute the instant action. However, Plaintiff cannot be totally devoid of
responsibility solely because she is represented by counsel in this action. See Poulis, 747 F.2d at

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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 her attorney was actively pursuing this litigation or to retain new counsel if her
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 her 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 nearly two years, and neither Plaintiff nor Ms. Stuski has given
any indication that Plaintiff plans to return to this case. Further, Defendants have been given no
information regarding Plaintiff’s claims beyond the allegations contained in the complaint.
Accordingly, the Court finds that the prejudice to Defendants is severe and weighs heavily 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
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 one year and
failed to even attempt to comply with the Court’s February 1, 2011 order, which warned her that
failure to respond to the order may result in dismissal of the action for failure to prosecute. It

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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 her 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; her complaint is
thirty-one pages in length, includes eleven counts, and avers facts in support of each alleged
violation. (Doc. No. 1.) Accordingly, this factor will weigh against dismissal of the action.
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

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the fact that Plaintiff has taken virtually no action to pursue this litigation other than file a
complaint. Further, she has had over eleven months to respond to the Court’s show cause order
and has made no effort to do so. 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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