Reisinger v. Connor et al

Filing 38

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 12/3/14. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH R. REISINGER,
Plaintiffs

v.
RICHARD L. CONNOR, et al.,
Defendants.

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Case No. 3:12-cv-02117

(Judge Brann)

Consolidated with 3:12-cv-2553

MEMORANDUM
December 3, 2014
Responding to this Plaintiff’s lack of response, the Defendants filed a
Motion to Dismiss Plaintiffs’ Consolidated Action Pursuant to Federal Rule of
Civil Procedure 41(b) for Plaintiff’s Failure to Prosecute (ECF No. 36). That
Motion is now before this Court.
The Defendants submitted a Brief in Support of their Motion (ECF No. 37).
The Plaintiff remains a silent enigma. For the reasons that follow, the Defendants’
Motion is granted.
I.

BACKGROUND
In October 2012, Plaintiff Joseph R. Reisinger (“Plaintiff” or “Reisinger”)

filed two lawsuits against more than twenty (20) defendants, including the City of
Wilkes-Barre, Mayor Thomas Leighton, NOVA Bank, members of the news
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media, lawyers, law firms, and other individuals and corporations as the docket
indicates. In a gargantuan three hundred twenty-six (326) page Complaint whose
very existence incites mockery of Rule 8's mandate that a pleading “must contain .
. . a short and plain statement of the claim,” Reisinger alleged a vast conspiracy
among these many Defendants to defame him. FED. R. CIV. P. 8(a).
Consistent with federal statutory mandates, on December 17, 2012, this
Court stayed those actions and ordered that Reisinger first pursue and exhaust his
administrative claims against NOVA Bank through the Federal Deposit Insurance
Corporation (“FDIC”), NOVA Bank’s receiver (“FDIC-Receiver”). There is no
indication that Reisinger ever commenced the administrative process in the
intervening two-year period since that stay was issued.
This Court scheduled a telephone status conference on October 8, 2014 in
order to discern the Plaintiff’s progress on his administrative action. Despite
numerous attempts by Defense counsel to communicate with the Plaintiff, he was
never successfully contacted and was not present on the telephone call. In addition
to Reisinger’s failure to respond to both the Defendants requests to contact him and
multiple Court Orders, his last activity on the docket in this case was on November
29, 2012. Despite attempts to contact him, this Court has not heard from the
Plaintiff in this case since the undersigned joined the bench. Accordingly, the
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Defendants’ moved for the dismissal of this action for the Plaintiff’s failure to
prosecute his case.
II.

DISCUSSION
A.

Involuntary Dismissal Standard

“A District Court has the authority to dismiss a suit sua sponte for failure to
prosecute by virtue of its inherent powers and pursuant to Federal Rule of Civil
Procedure 41(b).” Iseley v. Bitner, 216 Fed. App’x 252, 254–55 (3d Cir. 2007).
Rule 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) . . . operates as an adjudication on the
merits.
FED. R. CIV. P. 41(b).
The United States Court of Appeals for the Third Circuit has articulated six
factors for a court to consider when pondering dismissal under Rule 41(b):
(1)
(2)
(3)
(4)
(5)
(6)

the extent of the party’s personal responsibility;
the prejudice to the adversary caused by the failure to meet
scheduling orders and respond to discovery;
a history of dilatoriness;
whether the conduct of the party or the attorney was willful or
in bad faith;
the effectiveness of sanctions other than dismissal, which
entails an analysis of alternative sanctions; and
the meritoriousness of the claim or defense.
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Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). “In
balancing these factors, there is no ‘magic formula,’ nor must they all be satisfied.”
Parks v. Ingersoll-Rand Co., 380 Fed. App’x 190, 194 (3d Cir. 2010). The Court
applies these factors to the facts of this case.
B.

Application of Poulis Factors
1.

Plaintiff Is Solely Responsible for the Delay

Plaintiff is an attorney representing himself in this action. He received the
Court’s Order of December 17, 2012, which stayed the case until Reisinger
pursued and exhausted his administrative remedies. There is no indication
Reisinger ever began the administrative process. Moreover, he has failed to
communicate with the parties or the Court regarding the status of his claims, and
failed to respond to multiple Court Orders, while the Defendants have been
compliant and attended the recent telephonic status conferece. Thus, this factor
weighs heavily in favor of dismissal. See, e.g., Ball v. Lamas, No. 1:09-CV8462012 WL 895942, *16–20 (M.D. Pa. Jan. 17, 2012) report and
recommendation adopted, No. 1:09-CV-846, 2012 WL 895935 (M.D. Pa. Mar. 15,
2012).
2.

Prejudice to Defendants

The Defendants have suffered prejudice in this case. Plaintiff’s delays have
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impeded the normative aspiration for prompt resolution of litigation in which
Plaintiff alleged defamation claims against Defendants, which include accusations
that impugn their professional reputations. The Defendants suffer prejudice to
those reputations while claims damaging their names remain unresolved. See
Crespo v. Nicholson, No. 02: 05-CV-1656, 2006 WL 2924790, *2–3 (W.D. Pa. Oct.
10, 2006) (noting that a company suffers prejudice when litigation accusing it of
discrimination is extended indefinitely due to plaintiff’s delays).
Furthermore, discovery has not begun in the case. Therefore, the Defendants
have also been prejudiced by the inevitable dimming of memories that comes with
the passage of time. See Herrman v. Allstate Ins. Co., 450 F. Supp. 2d 537, 542–43
(E.D. Pa. 2006) (noting that witness memories are subject to inevitable dimming
with the passage of time that prejudice a defendant).
3.

Plaintiff Has Demonstrated a History of Dilatory Conduct

Plaintiff’s repeated lengthy delays in this action support its dismissal. See
Parks, 380 Fed. App’x at 194. On November 26, 2012, the FDIC-Receiver
provided Plaintiff with a Notice of Discovered Creditor – Proof of Claim letter
together with a form and instructions advising him that he must pursue his claims
against NOVA Bank, he would have to complete and file his proof of claim with the
FDIC-Receiver by the January 31, 2013 claims bar date. Defs.’ Br. Supp. 12, Nov.
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6, 2014, ECF No. 37. As previously noted, the Court stayed the Plaintiff’s first
Complaint on December 17, 2012 until after Plaintiff exhausted his claims against
the FDIC-Receiver relating to NOVA Bank through the administrative claims
process. Plaintiff did nothing to pursue his claims at that time.
On May 24, 2013, after the case was reassigned to the undersigned, the Court
issued an Order, inter alia, reasserting that the case remained stayed until a party in
the action asserting a claim related to the FDIC-Receiver notified the Court that the
administrative process was exhausted (ECF No. 31). Again, there is no indication
Plaintiff took action.
Finally, the Plaintiff was entirely unresponsive to this Court’s Order of
September 30, 2014 scheduling a telephonic status conference for October 8, 2014
(ECF No. 32). The Plaintiff was not present at that conference in violation of the
Order, and has not contacted the Court in the wake of his violation. Accordingly,
the Plaintiff’s history of dilatory conduct supports dismissal.
4.

Plaintiff’s Delays Appear Willful

Based on the facts previously elucidated, Plaintiff was well aware of several
Court Orders instructing him to exhaust his administrative remedies, which all
indications suggest he failed to do. There is no justifiable explanation for the
Plaintiff’s failure that the Court is aware of, supporting the inference that his
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behavior is willful. See Crespo, No. 02: 05-CV-1656, 2006 WL 2924790, at *7
(finding that where plaintiff has not presented any outside circumstances to justify
delay a court may find the conduct was willful).
5.

No Other Effective Sanctions Exist

Plaintiff has been entirely unresponsive to multiple Court Orders in this case,
and has neither conducted activity to advance the litigation or contacted the Court in
more than a year. There are no alternative sanctions available to this unresponsive
Plaintiff to which the court has provided ample opportunity to pursue his claims and
comply with Court Orders. Accordingly, this factor supports dismissal. See id. at
*8.
6.

Merits of the Case

Because the other factors overwhelmingly support dismissal of this case, and
the Court does not have the benefit of extensive briefing and discovery, the Court
declines to analyze the merits of Plaintiff’s case. Nevertheless, when a plaintiff
fails to pursue his own claims past filing the complaint, “[c]ommon sense dictates
that [plaintiff’s] action is of questionable merit.” Id. at *3 (quoting Windward
Agency Inc. v. Cologne Life Reinsurance Co., 353 F. Supp. 2d 538, 541 (E.D. Pa.
2003)) (internal quotations omitted).
III.

CONCLUSION
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The Plaintiff’s claims are dismissed with prejudice pursuant to Rule
41(b), because he failed to prosecute his case and comply with multiple Court
Orders.1 An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann
Matthew W. Brann
United States District Judge

1

It is worth noting that Local Rule 41.1 does not apply to this case and does not impede
its dismissal. See M.D. Pa. L.R. 41.1; Parks v. Ingersoll-Rand Co., 380 Fed. App’x 190, 195–96
(3d Cir. 2010).
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