Atwell v. SPX Cooling Technologies, Inc.

Filing 55

MEMORANDUM AND ORDER GRANTING deft's motion to dismiss 49 , DISMISSING all claims filed by pltf against deft with prejudice, DENYING deft's MSJ 26 as MOOT, & directing Clrk of Ct to CLOSE case. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 01/26/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL ATWELL,
Plaintiff
v.
SPX COOLING TECHNOLOGIES,
INC.,
Defendant

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:10-CV-1271
(Judge Conner)

MEMORANDUM
Presently before the court is the motion to dismiss (Doc. 49) pursuant to Rule
41(b) of the Federal Rules of Civil Procedure, filed by defendant SPX Cooling
Technologies, Inc. (“SPX”). For the reasons that follow, the court will grant the
motion.
I.

Background
On June 17, 2010, plaintiff Michael Atwell (“Atwell”) instituted the present

action against SPX alleging violations of the Age Discrimination in Employment
Act of 1967, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981. (Doc. 1).
During the discovery phase of the litigation, Atwell and his counsel failed to attend
six noticed depositions agreed to by both parties, cancelling those depositions the
day before they were scheduled to begin, and after outside counsel for SPX had
traveled from Kansas City, Missouri to York, Pennsylvania to attend them. As a
result of the discovery violations, on March 8, 2011, SPX filed a motion for costs,
fees and sanctions. (Doc. 24). Approximately one week later, on March 16, 2011,

SPX filed a motion for summary judgment. (Doc. 26). The court granted the
motion for costs, fees and sanctions in part by memorandum and order dated June
6, 2011. (Doc. 39). The court issued a supplemental memorandum and order on
October 11, 2011, directing the payment of a sum certain to SPX. (Doc. 46).
That same day, the court granted counsel for Atwell’s motion to withdraw as
counsel.1 (Doc. 47). The court granted Atwell sixty (60) days to secure new counsel
and/or respond to SPX’s motion for summary judgment. (Id.) In the order the
court warned that Atwell’s failure to comply with the order “will be deemed an
abandonment of this action.” After the sixty-day period elapsed, and having
received no response, or other communication from Atwell whatsoever, SPX filed
the instant motion to dismiss (Doc. 49) pursuant to Federal Rule of Civil Procedure
41(b). On January 10, 2012, still having received no response from Atwell, the court
directed Atwell to file a brief in opposition to SPX’s motion to dismiss within
fourteen days. (Doc. 53). The time for a response has expired, and the court has
received no reply from Atwell. The motion to dismiss (Doc. 49) is now ripe for
consideration.

1

Counsel for Atwell initially filed a motion to withdraw as counsel on
February 14, 2011 (Doc. 20), which the court denied without prejudice on February
24, 2011. (Doc. 23). Counsel renewed their motion to withdraw on April 15, 2011.
(Doc. 35). The court deferred ruling on the motion pending resolution of SPX’s
motion for costs, fees and sanctions.
2

II.

Discussion
Pursuant to Federal Rule of Civil Procedure 41(b), a defendant may move to

dismiss any claim against it as a result of the plaintiff’s failure to prosecute or
failure to comply with court orders. FED . R. CIV . P. 41(b) (stating that a defendant
may move to dismiss an action against it “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order”); see also Briscoe v. Klaus, 538 F.3d 252,
258 (3d Cir. 2008). In determining whether dismissal under Rule 41(b) is
appropriate, the Third Circuit directs district courts to consider the following
factors: (1) the extent of the plaintiff’s personal responsibility; (2) the prejudice to
the defendant caused by plaintiff’s failure to meet scheduling orders and respond to
discovery; (3) whether there is a history of dilatoriness; (4) whether the conduct of
the plaintiff was willful or in bad faith; (5) the effectiveness of sanctions other than
dismissal; and (6) the meritoriousness of the plaintiff’s claim or defense. Poulis v.
State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984); Gillespie v. Beard,
Civil No. 3:-09-CV-1453, 2011 WL 4463727, at *2 (M.D. Pa. Sept. 26, 2011). Every
factor need not be satisfied to justify dismissal. Gillespie, 2011 WL 4463727, at *2.
With respect to the Poulis factors, the court finds as follows: Atwell, who has
been proceeding in the matter as a pro se party since October 11, 2011, is personally
responsible for the failure to respond to the court’s orders. The court finds that
SPX is prejudiced in its ability to defend against this action by Atwell’s failure to
engage in discovery or otherwise respond to court orders. SPX has been thwarted
in its efforts to conduct discovery and thus to prepare an adequate defense. The
3

court further finds that Atwell’s dilatoriness is substantial, and his failure to
respond to both the motion for summary judgment and the motion to dismiss after
court orders directing responses amounts to bad faith. Although his complaint on
its face raises claims that appear meritorious, and the assertion of meritorious
claims weighs against dismissal of the action, see Adams v. Trustees of N.J.
Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 877 (3d Cir. 1994), the other
Poulis factors weigh in favor of dismissal. Given Atwell’s lack of engagement in this
litigation stemming back to at least October of last year, and likely longer, given his
former counsel’s representations (see Docs. 20, 35, 51), it appears that Atwell has
abandoned the action. The court therefore concludes that sanctions other than
dismissal would be ineffective. The court will grant SPX’s motion to dismiss.
IV.

Conclusion
For the above-stated reasons, the court will grant SPX’s motion (Doc. 49) to

dismiss with prejudice. An appropriate order follows.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Dated:

January 26, 2012

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL ATWELL,
Plaintiff
v.
SPX COOLING TECHNOLOGIES,
INC.,
Defendant

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:10-CV-1271
(Judge Conner)

ORDER
AND NOW, this 26th day of January, 2012, upon consideration of the motion
(Doc. 49) to dismiss pursuant to Federal Rule of Civil Procedure 41(b), filed by
defendant SPX Cooling Technologies, Inc., and for the reasons stated in the
accompanying memorandum, it is hereby ORDERED that:
1.

The motion (Doc. 49) to dismiss is GRANTED.

2.

All claims filed by plaintiff against defendant are DISMISSED with
prejudice.

3.

Defendant’s motion for summary judgment (Doc. 26) is DENIED as
MOOT.

4.

The Clerk of Court is directed to CLOSE the case.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge