Nowland v. Lucas et al

Filing 30

MEMORANDUM AND ORDER granting 28 MOTION to Dismiss filed by Andrew R. Crone, Benjamin Lucas. Signed by Magistrate Judge Martin C. Carlson on January 3, 2012. (kjn )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ZACHARY NOWLAND,
Plaintiff,
v.
BENJAMIN LUCAS, et al.,
Defendant.

:
:
:
:
:
:
:
:
:

Civil No. 1:10-CV-1863

(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
I.

Statement of Facts and of the Case

This is a civil rights action brought by Zachary Nowland. Nowland initially
filed this action through counsel on September 2, 2010. (Doc. 1) On September 16,
2011, Nowland’s counsel moved to withdraw from this action, citing repeated failures
by the plaintiff to comply with his counsel’s instructions. (Doc. 18) On September 19,
2011, we granted this request. (Doc. 19)
Upon the withdrawal of his counsel, Nowland elected to proceed pro se, but
immediately began defaulting on his obligations as a litigant in federal court. Thus,
on October 24, 2011, and November 18, 2011, we directed Nowland to appear for a
deposition which was ultimately scheduled for December 5, 2011, and provide other
discovery sought by the defendants in this case. (Doc. 24 and 26) In our November
18 order we also advised Nowland in clear and precise terms of the consequences that

would flow if he failed to attend this deposition, or otherwise neglected his discovery
obligations, stating that: “If the plaintiff fails to comply with this order, the plaintiff
is advised that this action may be subject to dismissal” (Doc. 26)
This order was returned as undeliverable. (Doc. 27) Thus, it became apparent
that Nowland was no longer accepting communications at the last address which he
had provided to the Court. As a pro se litigant Nowland’s failure to maintain an
address where he could be reached itself violated the rules of this Court; specifically,
Local Rule 83.18, which provides that:
LR 83.18 Appearance of Parties Not Represented by Counsel.
Whenever a party by whom or on whose behalf an initial paper is offered
for filing is not represented in the action, such party shall maintain on file
with the clerk a current address at which all notices and copies of
pleadings, motions or papers in the action may be served upon such
party.
On December 5, 2011, Nowland failed to appear for his deposition as directed
by this Court. Nor has Nowland advised the Court or opposing counsel of his current
whereabouts. Therefore Nowland also remains in violation of Local Rule 83.18.
On December 15, 2011, the defendants moved to dismiss this action pursuant to
Rule 41 of th Federal Rules of Civil Procedure, citing Nowland’s persistent falure to
prosecute this action over the past several months. (Docs. 28 and 29) The 14-day
response deadline for this motion prescribed by Local Rule 7.5 has now passed without

-2-

any action on Nowland’s part to respond to this motion, provide discovery, or
otherwise prosecute this case. Therefore, this matter is now ripe for resolution.
For the reasons set forth below, the motion to dismiss will be granted.
II.

Discussion
A.

Under The Rules of This Court This Motion to Dismiss Should
Be Deemed Unopposed and Granted

At the outset, under the Local Rules of this Court the plaintiff should be deemed
to concur in this motion, since Nowland has failed to timely oppose the motion, or
otherwise litigate this case. This procedural default completely frustrates and impedes
efforts to resolve this matter in a timely and fair fashion, and under the rules of this
Court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court
imposes an affirmative duty on the plaintiff to respond to motions and provides that:
Any party opposing any motion, other than a motion for summary
judgment, shall file a brief in opposition within fourteen (14) days after
service of the movant's brief, or, if a brief in support of the motion is not
required under these rules, within seven (7) days after service of the
motion. Any party who fails to comply with this rule shall be deemed not
to oppose such motion. Nothing in this rule shall be construed to limit the
authority of the court to grant any motion before expiration of the
prescribed period for filing a brief in opposition. A brief in opposition to
a motion for summary judgment and LR 56.1 responsive statement,
together with any transcripts, affidavits or other relevant documentation,
shall be filed within twenty-one (21) days after service of the movant’s
brief.
Local Rule 7.6 (emphasis added).

-3-

It is now well-settled that “Local Rule 7.6 can be applied to grant a motion to
dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with
the [R]ule after a specific direction to comply from the court.’ Stackhouse v.
Mazurkiewicz, 951 F.2d 29, 30 (1991).” Williams v. Lebanon Farms Disposal, Inc.,
No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). In this case Nowland
has not complied with the Local Rules, or this Court’s order, by complying with
discovery or filing a timely response to this motion. Furthermore, Nowland is in
violation of Local Rule 83.18 by failing to maintain an address where he can be
contacted by the Court, making communications regarding this litigation virtually
impossible. On these facts, Nowland’s procedural defaults compel the Court to
consider:
[A] basic truth: we must remain mindful of the fact that “the Federal Rules
are meant to be applied in such a way as to promote justice. See
Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve
cases on their merits whenever possible. However, justice also requires
that the merits of a particular dispute be placed before the court in a timely
fashion ....” McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191,
197 (3d Cir.1998).
Lease v. Fishel, 712 F. Supp. 2d 359, 371 (M.D.Pa. 2010).
With this basic truth in mind, we acknowledge a fundamental guiding tenet of
our legal system. A failure on our part to enforce compliance with the rules, and
impose the sanctions mandated by those rules when the rules are repeatedly breached,
“would actually violate the dual mandate which guides this Court and motivates our
-4-

system of justice: ‘that courts should strive to resolve cases on their merits whenever
possible [but that] justice also requires that the merits of a particular dispute be placed
before the court in a timely fashion’.” Id. Therefore, we are obliged to ensure that one
party’s refusal to comply with the rules does not lead to an unjustified prejudice to
those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the plaintiff has failed
comply with this Court’s discovery order, has violated Local Rule 83.18 by abandoning
this litigation without providing the Court with a means to contact him, and has
neglected to comply with Local Rule 7.6 by filing a timely response to the motion to
dismiss filed by the defendants. These cumulative failures now compel us to apply the
sanction called for under Rule 7.6 and deem the plaintiff to not oppose this motion to
dismiss.
B.

Dismissal of this Case Is Also Warranted Under Rule 41

Beyond the requirements imposed by the Local Rules of this Court, Rule 41(b)
of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for
failure to prosecute, stating that: “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.” Fed. R. Civ. P. 41(b). Decisions regarding dismissal of actions for failure
to prosecute rest in the sound discretion of the court, and will not be disturbed absent
-5-

an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir.
2002)(citations omitted). That discretion, however, while broad is governed by certain
factors, commonly referred to as Poulis factors. As the United States Court of Appeals
for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in
dismissing a case for failure to prosecute], we evaluate its balancing of the
following factors: (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 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 Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).
Emerson, 296 F.3d at 190.
In exercising this discretion “there is no ‘magic formula’ that we apply to
determine whether a District Court has abused its discretion in dismissing for failure
to prosecute.” Lopez v. Cousins, No. 10-1877, 2011 WL 2489897, *3 (3d Cir. June
23, 2011)(quoting Briscoe v. Klem, 538 F.3d 252 (3d Cir. 2008)) Therefore, “[i]n
balancing the Poulis factors, [courts] do not [employ] a . . . ‘mechanical calculation’
to determine whether a District Court abused its discretion in dismissing a plaintiff's
case. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992).” Briscoe v. Klaus, 538
F.3d at 263. Consistent with this view, it is well-settled that “ ‘no single Poulis factor
is dispositive,’ Ware, 322 F.3d at 222, [and it is] clear that ‘not all of the Poulis factors
-6-

need be satisfied in order to dismiss a complaint.’ Mindek, 964 F.2d at 1373.” Briscoe
v. Klaus, 538 F.3d at 263. However, recognizing the broad discretion conferred upon
the district court in making judgments weighing these six factors, the court of appeals
has frequently sustained such dismissal orders where there has been a pattern of
dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See,
e.g., Emerson v. Thiel College, supra; Tillio v. Mendelsohn, 256 F. App’x 509 (3d Cir.
2007); Reshard v. Lankenau Hospital, 256 F. App’x 506 (3d Cir. 2007); Azubuko v.
Bell National Organization, 243 F. App’x 728 (3d Cir. 2007).
In this case, a dispassionate assessment of the Poulis factors weighs heavily in
favor of dismissing this action. At the outset, a consideration of the first Poulis factor,
the extent of the party's personal responsibility, shows that the delays in this case are
entirely attributable to the Plaintiff, who has failed to abide by court orders and has
neglected to litigate this case.
Similarly, the second Poulis factor– the prejudice to the adversary caused by the
failure to abide by court orders–also calls for dismissal of this action. Indeed, this
factor–the prejudice suffered by the party seeking sanctions–is entitled to great weight
and careful consideration. As the United States Court of Appeals for the Third Circuit
has observed:
“Evidence of prejudice to an adversary would bear substantial weight in
support of a dismissal or default judgment.” Adams v. Trustees of N.J.
-7-

Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d
Cir.1994) (internal quotation marks and citation omitted). Generally,
prejudice includes “the irretrievable loss of evidence, the inevitable
dimming of witnesses' memories, or the excessive and possibly
irremediable burdens or costs imposed on the opposing party.” Id. at 874
(internal quotation marks and citations omitted). . . . However, prejudice
is not limited to “irremediable” or “irreparable” harm. Id.; see also Ware
v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir.2003); Curtis T. Bedwell
& Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d Cir.1988).
It also includes “the burden imposed by impeding a party's ability to
prepare effectively a full and complete trial strategy.” Ware, 322 F.3d at
222. Oftentimes, this type of prejudice involves disputes between the
parties on discovery matters because the defendants were deprived of
necessary information or had to expend costs to obtain court orders for
compliance. See, e.g., Poulis, 747 F.2d at 868 (finding that the defendants
were prejudiced where the plaintiffs did not answer interrogatories,the
defendants had to file a motion to compel the plaintiffs' answers, and the
defendant had “to file its pre-trial statement without the opportunity to
review plaintiffs' pretrial statement which was due to be filed first”);
Ware, 322 F.3d at 220-23 (affirming the District Court's conclusion that
a defendant had been prejudiced where the plaintiff repeatedly ignored the
defendant's discovery request for the plaintiff's computation of damages
and did not provide it until one week prior to trial).
Briscoe v. Klaus, 538 F.3d at 259-60.
In this case the Plaintiff’s failure to litigate this claim or comply with court orders now
wholly frustrates and delays the resolution of this action. In such instances, dismissal
of the case clearly rests in the discretion of the trial judge. Tillio v. Mendelsohn, 256
F. App’x 509 (3d Cir. 2007) (failure to timely serve pleadings compels dismissal);
Reshard v. Lankenau Hospital, 256 F. App’x 506 (3d Cir. 2007) (failure to comply
with discovery compels dismissal); Azubuko v. Bell National Organization, 243 F.
-8-

App’x 728 (3d Cir. 2007) (failure to file amended complaint prejudices defense and
compels dismissal).
When one considers the third Poulis factor-the history of dilatoriness on the
plaintiff’s part–it becomes clear that dismissal of this action is now appropriate. In this
regard, while it is evident that “‘[e]xtensive or repeated delay or delinquency
constitutes a history of dilatoriness, such as consistent non-response to interrogatories,
or consistent tardiness in complying with court orders.’ Adams, 29 F.3d at 874; [it is
also clear that] conduct that occurs one or two times is insufficient to demonstrate a
‘history of dilatoriness.’” Briscoe v. Klaus, 538 F.3d at 260-61 (some citations
omitted). Here, over the span of several months, the plaintiff has failed to timely file
pleadings, provide the Court with any means of communicating with this party and has
not complied with orders of the Court. Thus, Nowland’s conduct displays “[e]xtensive
or repeated delay or delinquency [and conduct which] constitutes a history of
dilatoriness, such as consistent non-response to [discovery], or consistent tardiness in
complying with court orders.’ Adams, 29 F.3d at 874
The fourth Poulis factor–whether the conduct of the party or the attorney was
willful or in bad faith–also cuts against the plaintiff. In this setting we must assess
whether Nowland’s conduct reflects mere inadvertence or willful conduct, in that it
involved “strategic,” “intentional or self-serving behavior,” and not mere negligence.

-9-

Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863, 875 (3d
Cir.1994). Here, we find that the plaintiff’s actions were willful, and reflect a pattern
of willfulness.

At this juncture, when the plaintiff has failed to comply with

instructions of the Court directing the plaintiff to take specific actions in this case, has
provided us with no means to communicate with him, and has violated the local rules,
the Court is compelled to conclude that the plaintiff’s actions are not accidental or
inadvertent but instead reflect an intentional disregard for this case and the Court’s
instructions.
While Poulis also enjoins us to consider a fifth factor, the effectiveness of
sanctions other than dismissal, cases construing Poulis agree that in a situation such as
this case, where we are confronted by a pro se litigant who will not comply with the
rules or court orders, lesser sanctions may not be an effective alternative. See, e.g.,
Briscoe v. Klaus, 538 F.3d 252, 262-63 (3d Cir. 2008); Emerson, 296 F.3d at 191. This
case presents such a situation where the plaintiff’s status as a pro se litigant severely
limits the ability of the court to utilize other lesser sanctions to ensure that this
litigation progresses in an orderly fashion. In any event, by entering our prior orders,
and counseling the plaintiff on his obligations in this case, we have endeavored to use
lesser sanctions, but to no avail. The plaintiff still declines to obey court orders, and
otherwise ignores his responsibilities as a litigant. Since lesser sanctions have been
tried, and have failed, only the sanction of dismissal remains available to the Court.
-10-

Finally, under Poulis we are cautioned to consider one other factor, the
meritoriousness of the plaintiff’s claims. In our view, however, consideration of this
factor cannot save this particular plaintiff’s claims, since Nowland is now wholly noncompliant with his obligations as a litigant. The plaintiff cannot refuse to cooperate
with this discovery, which would address the merits of his claims, and then assert the
untested merits of these claims as grounds for denying a motion to sanction him for this
refusal to participate in discovery. In any event, it is well-settled that “ ‘no single
Poulis factor is dispositive,’ Ware, 322 F.3d at 222, [and it is] clear that ‘not all of the
Poulis factors need be satisfied in order to dismiss a complaint.’ Mindek, 964 F.2d at
1373.” Briscoe v. Klaus, 538 F.3d at 263. Therefore, the untested merits of the noncompliant plaintiff’s claims, standing alone, cannot defeat this sanctions motion.
In sum, Zachary Nowland has disobeyed the orders of this Court, disregarded his
discovery obligations, and discounted his duty under the Local Rules to provide the
Court with a means of contacting him. On these facts, and in the face of Nowland’s
failure to respond to the defendant’s motion to dismiss, we are compelled to conclude
that Nowland has abandoned this litigation, and we will grant the defendants’ motion.

-11-

III.

Conclusion

For the foregoing reasons, the defendants’ motion to dismiss (Doc. 28), is
GRANTED.
So ordered this 3d day of January 2012.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

-12-