Cox v. United Parcel Service, Inc. et al

Filing 62

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 7/26/17. (sm)

IN THE UNITED STATES DISTICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PAUL COX,
Plaintiff

:
No. 15cv2013
:
:
(Judge Munley)
v.
:
:
UNITED PARCEL SERVICE, INC.; and :
LOCAL UNION 401, INTERNATIONAL :
BROTHERHOOD OF TEAMSTERS,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Plaintiff Paul Cox (hereinafter “plaintiff”) claims the defendants unlawfully
terminated his employment in contravention of his union’s Collective Bargaining
Agreement (hereinafter “CBA”) and Section 301 of the Labor Management
Relations Act (hereinafter “LMRA”). Before the court for Disposition is defendant
United Parcel Service, Inc.’s (hereinafter “UPS”), and Defendant Local Union
401, International Brotherhood of Teamsters’ (hereinafter “Union”), joint motion to
dismiss the plaintiff’s complaint with prejudice and award attorneys’ fees and
costs, pursuant to Rules 371 and 412 of the Federal Rules of Civil Procedure and
brief in support thereof (Doc. 58), filed on May 4, 2017.

1

FED. R. CIV. P. 37(b)(2)(A)(v).

2

FED. R. CIV. P. 41(b).

 See
 See

The parties have briefed their respective positions and the motion is ripe for
disposition.
Background3
The instant employment action arises from plaintiff’s employment with
Defendant United Parcel Service, Inc., (hereinafter “UPS”).4 Plaintiff worked as
full-time night mechanic from approximately May 4, 2014, until June 18, 2015,
when plaintiff resigned. (Doc. 1, Compl. (hereinafter “Compl.”) ¶ 5). As a
mechanic, plaintiff maintained and inspected UPS’s equipment, including
vehicles owned and rented by UPS.5 (Id. ¶ 6). Plaintiff alleges that during his
employment, UPS placed inspection stickers on vehicles that were not
roadworthy. (Id. ¶ 8). Plaintiff alleges he objected and insisted on compliance
with safety standards and regulations. (Id. ¶¶ 9-10, 16, 28, 32).
On June 18, 2015, shortly after plaintiff began his 6:00 p.m. shift, plaintiff’s
immediate supervisor requested plaintiff come to his office. (Id. ¶ 11). The
3

We cite to plaintiff’s complaint for background allegations. We make no
determination as to the veracity of these assertions.

4

As a Union employee, the Collective Bargaining Agreement, National Master
United Parcel Service Agreement and Central Pennsylvania Supplemental
Agreement governed the terms of plaintiff’s employment. (Compl. ¶ 17).

5

Defendant obtained permission from the Pennsylvania Department of
Transportation to inspect its own vehicles and issue inspection stickers.
(Compl. ¶ 7).
2

supervisor asked if plaintiff wanted union representation at the meeting and
plaintiff declined, signing a waiver of right to representation.6 (Id. ¶¶ 11, 19).
During this meeting, plaintiff’s supervisor directed plaintiff to sign a resignation
form or the supervisor would call the Pennsylvania State Police. (Id. ¶ 12). The
supervisor also directed plaintiff to write “personal” as the reasons for his
resignation. (Id.) Plaintiff signed the resignation form. (Id.)
In response to his forced resignation, plaintiff filed a two-count complaint on
October 16, 2015. (Doc. 1). Count I asserts a breach of contract claim
pertaining to the CBA against UPS. Count II states a cause of action under the
LMRA against the Union.
UPS answered plaintiff’s complaint on February 15, 2016. (Doc. 11).
Union filed a motion to dismiss7 on March 7, 2016 (Doc. 18), which we denied on
August 18, 2016. (Doc. 24). Union filed an answer to the complaint on
September 8, 2016. (Doc. 27). After a telephonic case management conference
during which all parties agreed to the schedule, we issued a case management
order on October 3, 2016 directing, among other things, the parties’ discovery
would be due to be completed by February 1, 2017. (Doc. 33).

6

 Plaintiff

alleges his supervisor knew that no stewards were available at the time
of the meeting, which occurred after 6:00 p.m. (Id. ¶ 11).

7

 FED.

R. CIV. P. 12(b)(6) 
3

Extraordinary discovery delays ensued shortly thereafter. The defendants
jointly filed the instant motion on May 4, 2017 seeking dismissal of the complaint
along with attorneys’ fees and costs to defendants, (Doc. 58), thus bringing the
case to its present posture.
Jurisdiction
As plaintiff brings suit pursuant to Section 301 of the LMRA, we have
federal question jurisdiction. See 28 U.S.C. § 1331 (“The district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”)
Standard of Review
The law provides that a court may enter sanctions against a party who fails
to cooperate with discovery obligations. See generally FED. R. CIV. P. 37;
Winters v. Textron, Inc., 187 F.R.D. 518 (M.D. Pa. 1999). Where appropriate the
district court has great discretion in determining the proper sanction under Rule
37. See, e.g., Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639
(1976).
Regarding the type of sanction however, “[d]ismissal must be a sanction of
last, not first, resort.” Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863,
868-69 (3d Cir. 1984). “Dismissals with prejudice or defaults are drastic
sanctions, termed ‘extreme’ by the Supreme Court, Nat’l Hockey League, 427
4

U.S. at 643, and “are to be reserved for comparable cases.” Poulis, 747 F.2d at
868. Nevertheless, “[t]he authority of a federal trial court to dismiss a plaintiff's
action with prejudice ...cannot seriously be doubted.” Link v. Wabash R.R. Co.,
370 U.S. 626, 629 (1962). “The power to invoke this sanction is necessary in
order to prevent undue delays in the disposition of pending cases and to avoid
congestion in the calendars of the district courts.” Id. at 629-30. Furthermore,
“[t]he most severe in the spectrum of sanctions provided by statute or rule must
be available to the district court...not merely to penalize...but to deter those who
might be tempted to such conduct in the absence of such a deterrent.” Nat’l
Hockey League, 427 U.S. at 643.
A court must balance the following factors in assessing whether dismissal
of a complaint is warranted: (1) the extent of the personal responsibility of the
party; (2) prejudice to the adversary caused by failure to meet discovery orders;
(3) history of dilatoriness; (4) willfulness or bad faith of the conduct in question;
(5) effectiveness of alternative sanctions other than dismissal; and (6) the
meritoriousness of the claim. Poulis, 747 F.2d at 868. Not all six factors need to
be met to warrant sanctions, but a consideration and balance of all six factors
must be undertaken. Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 919
(3d Cir. 1992).

5

Discussion
Initially, motions for extension of time to file pleadings or complete
discovery take place normally in the course of litigation. Such motions are
usually uncontested and routinely granted. Because defendants seek to dismiss
the plaintiff’s case as a sanction for failure to comply with discovery rules we will
briefly discuss the discovery history of this lawsuit.
On October 12, 2016 our first case management order issued setting a
discovery deadline of February 1, 2017. (Doc. 33). On December 12, 2016,
plaintiff filed his answer to the Union’s interrogatories. (Doc. 34). On January
11, 2017, Union moved for an extension of time to complete discovery. (Doc.
35). We ordered the discovery deadline moved back to April 3, 2017. (Doc. 36).
On March 1, 2017, Union counsel filed a letter requesting a discovery
conference jointly with UPS. In it, defendants requested our “intervention for the
plaintiff’s failure to produce and complete discovery responses, as well as for the
plaintiff to be submitted for a deposition.” (Doc. 37).8 During the ensuing

makes much of the fact that the letter (Doc. 37) did not follow L.R. 26.3
insofar as the letter did not certify conferring with plaintiff’s counsel in a good faith
effort to resolve the issues. Plaintiff’s grievance is duly noted. At the point
plaintiff disobeyed our order of March 21, 2017 (Doc. 47) we were way past L.R.
26.3, and actually it’s worse than plaintiff perceives: our case management
orders (see, e.g., Doc. 33) specifically direct counsel not to file written discovery
motions. Instead, counsel should have notified our case administrator who would
have scheduled a telephonic discovery conference, including the court and all
counsel, at which discovery disputes would have been resolved. In the interest
6
8

 Plaintiff

telephonic discovery conference we instructed counsel for all three parties to
collaborate in drafting an order and submit it to the court, and they complied.
(See Doc. 38). On March 9, 2017, we issued the following order submitted by
the parties:
AND NOW, this 9th day of March, 2017, it is hereby
ORDERED, ADJUDGED, AND DECREED as follows:
1.
Plaintiff is Ordered to provide the Defendant, United
Parcel Service, full and complete discovery responses to all
outstanding discovery within 7 days of the issuance of this
order.
2.
Plaintiff is Ordered to provide the Defendant,
International Brotherhood of Teamsters, Local 401, full and
complete responses to all outstanding discovery within 7
days of the issuance of this order.
3.
Failure on the part of the plaintiff to comply with
paragraphs 1 or 2 above shall result in the Court issuing an order
dismissing this case in its entirety.
4.
If Plaintiff does comply with both paragraphs 1 and 2
above, Plaintiff is ordered to appear and sit for a deposition on
March 23, 2017 in the law offices of Hourigan, Kluger &
Quinn, P.C. Should Plaintiff fail to sit for a deposition on
March 23, 2017, the Court will issue an order dismissing
the case in its entirety.
5.
Defendants shall notify the Court via filing a letter
through the ECF if Plaintiff fails to comply with paragraphs
1, 2, or 4 of this Order. After being notified by any party that
the Plaintiff has failed to comply with paragraphs 1, 2 or 4 of
this Order, the Court will issue an order dismissing the case
in its entirety.
(Doc. 41) (emphasis added).

of judicial economy we considered Union’s letter (Doc. 37) in the nature of a
request for a discovery conference. (See Doc. 38). 
7

On March 17, 2017, counsel for UPS filed a letter notifying the court that
plaintiff failed to comply with paragraph one (1) of our March 9, 2017 order.
Plaintiff provided no discovery responses at all to UPS discovery requests sent
on November 23, 2016. In a footnote, counsel for UPS further notified the court
that his understanding was plaintiff also failed to satisfy paragraph two (2) of our
March 9, 2017 order by not providing any responses to the Union’s discovery
requests. (Doc. 42). However, neither defendant moved for discovery sanctions
at that time.
Subsequently on March 17, 2017, (Doc 43), March 24, 2017, (Doc. 48),
and April 3, 2017, (Doc. 49), plaintiff moved for further extensions of the
discovery deadline. Our practice is to be liberal with discovery deadlines. We
granted the March 17th and March 24th motions. (See Doc. 47, 50). Plaintiff
missed both deadlines. On April 17, 2017 counsel for Union once again notified
the court, via a four (4) page letter (Doc. 52), of plaintiff’s failure to comply with
our original order of March 9, 2017, which order was our final effort to correct
plaintiff’s recalcitrance.
Notably, our briefing order (Doc. 56) for the instant motion directed the
parties to discuss the discovery sanction factors set forth in Poulis. Defendants’
brief is in compliance; plaintiff’s brief is not. Plaintiff’s failure to adequately

8

discuss the Poulis factors in his brief constitutes the latest and final discoveryrelated slip up in this case.
Discussion: Poulis analysis
(1) Personal responsibility of the party
The first factor for us to examine is whether the party, as opposed to the
party's counsel, bears personal responsibility for the action or inaction. Adams v.
Tr. of the N.J. Brewery Emp’ees' Pension Tr. Fund, 29 F.3d 863, 873 (3d Cir.
1994). A party may suffer dismissal justly because of its counsel's conduct. Id.
However, courts are increasingly emphasizing the appropriateness of “visiting
sanctions directly on the delinquent lawyer, rather than on a client who is not
actually at fault.” Id. (citations omitted). Nevertheless, “a client cannot always
avoid the consequences of the acts or omissions of its counsel.” Poulis, 747
F.2d at 868.
Plaintiff here “voluntarily chose this attorney as his representative in the
action and he cannot now avoid the consequences of the acts or omissions of
this freely selected agent. Any other notion would be wholly inconsistent with our
system of representative litigation, in which each party is deemed bound by the
acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of
which can be charged upon the attorney.’” Link, 370 U.S. at 633-34 (citing Smith
v. Ayer, 101 U.S. 320, 326 (1879)).
9

In this case plaintiff himself bears some personal responsibility. UPS’s
request for production of documents nos. eleven (11) and twelve (12) dealt with
plaintiff’s tax returns. Plaintiff replied, “to be supplied.” (See Doc. 58-7.) Plaintiff
never supplied the tax returns. He was questioned regarding the tax returns at
his April 7, 2017 deposition:
Q. The documents that Mr. Anderson [counsel for Union]
asked you about, the W2s and so forth, some of that you
testified to earlier that you would be able to pull them out in
a couple of hours, right?
A. If whatever that – I know I have this year, I have that at
my house, and I think I have last year, but I don’t know if I
have the rest of the years. As long as I can get them from
H & R Block, which does my taxes all the time, I don’t have
a problem giving them to my attorney.
Q. But you haven’t explored it yet.
A. No.
Q. Is there a reason you haven’t explored it yet?
A. No.
Q. There’s no reason for that?
A. No.
(Doc. 58-9 at 241-242)
Thus plaintiff himself is admittedly responsible for non-compliance with a
reasonable discovery request in this case. Compliance by providing the tax
returns to his own attorney, again by plaintiff’s own admission, would not have
10

been problematic. The flagrant nature of the plaintiff’s answers to the foregoing
questions at his deposition render him personally complicit in the discovery
problems at bar; failure to obtain old tax returns is not an act or omission on the
part of plaintiff’s counsel.
Nevertheless plaintiff’s counsel is obviously complicit in the blatant failure
to proceed in accordance with our order of March 9, 2017 (Doc. 41) (“After being
notified by any party that the Plaintiff has failed to comply with paragraphs 1, 2 or
4 of this Order, the Court will issue an order dismissing the case in its entirety.”)
We find Poulis factor one (1) weighs in favor of dismissal.
(2) Prejudice to adversary
The next factor to be weighed is prejudice to the adversary. Poulis, 747
F.2d at 868. “Examples of prejudice include...the excessive and possibly
irremediable burdens...imposed on the opposing party.” Adams, 29 F.3d at 874
(citations omitted). “Prejudice also includes deprivation of information through
non-cooperation with discovery, and costs expended obtaining court orders to
force compliance with discovery.” Id.
In the instant case, movants assert that they have suffered prejudice
because plaintiff’s failure to fully respond to discovery requests “has inhibited
defendants’ ability to obtain deposition testimony on many meaningful issues, or
otherwise progress in their fact discovery…” (Doc. 58-1 at 7). Defendants cite
11

Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003), for the proposition
that each [Poulis] factor need not be satisfied for the court to dismiss an action.
We are mindful that prejudice does not equate to irreparable harm. In Ware, the
court found “the burden imposed by impeding a party’s ability to prepare
effectively a full and complete trial strategy is sufficiently prejudicial.” Id. at 222.
We are sympathetic to the movants’ argument, yet the record before the
court does not contain examples of specific or generalized instances of prejudice,
sufficient to allow the court to determine the nature and extent thereof, in a
manner that would lend itself to Poulis factor two (2) analysis. Accordingly, we
find Poulis factor two (2), prejudice to adversary, to be neutral.
(3) History of dilatoriness
Next we look to the conduct in question to determine if a history of
dilatoriness exists. Poulis, 747 F.2d at 868. “Extensive or repeated delay or
delinquency constitutes a history of dilatoriness, such as consistent nonresponse to interrogatories, or constant tardiness in complying with...orders.”
Adams, 29 F.3d at 874 (quoting Poulis, 747 F.2d at 868). Moreover, the court
must consider the party's problematic acts “in light of its behavior over the life of
the case.” Id. at 875.
In this case, plaintiff has exhibited a long history of dilatory conduct in the
discovery proceedings as noted above. His explanations for failing to meet the
12

deadlines in our strongly-worded order of March 9, 2017, failed to resonate with
the court. Yet despite his history of dilatoriness we gave plaintiff another bite at
the apple, extending discovery deadlines to March 23, 2017, (Doc. 47) and once
again warned that failure to comply will result in the dismissal of this action. Still,
our efforts to prompt plaintiff were for naught.
In fact, the only deadlines plaintiff met were the statute of limitations (see
Doc. 1); his reply brief (Doc. 46) to the defendants’ brief in opposition to motion
for extension of time to complete discovery (Doc. 45); and his brief in opposition
(Doc. 59) to defendants’ motion to dismiss presently at bar (Doc. 58).
We make clear that individually none of these matters warrant sanctions,
but throughout this case the court and movants were compelled to consistently
prod plaintiff into action. “Time limits imposed by the rules and the court serve an
important purpose...[i]f compliance is not feasible, a timely request for an
extension should be made to the court. A history by counsel of ignoring these
time limits is intolerable.” Poulis, 747 F.2d at 868.
Plaintiff has ignored numerous deadlines imposed by the court. He has
consistently skirted the responsibility of complying with discovery rules by
deflecting accountability, citing scheduling conflicts, and complaining of the
ordinary life issues nearly everyone deals with, let alone practicing attorneys.

13

Considering his actions in the discovery phase of this case, plaintiff has
demonstrated a strong history of dilatory conduct weighing heavily in favor of
dismissal under Poulis factor three (3), dilatoriness.
(4) Willful or bad faith conduct
The fourth factor to be considered is the willfulness, or bad faith, of the
conduct at issue. Poulis, 747 F.2d at 868. “Willfulness involves intentional or
self-serving behavior.” Adams, 29 F.3d at 875. The court must look for
contumacious behavior that can be characterized as flagrant bad faith. Id.
(citing Nat’l Hockey League, 427 U.S. at 643).
In Nat’l Hockey League, the Supreme Court approved a district court's
dismissal of a case where over seventeen months plaintiffs failed to comply with
discovery proceedings and broke numerous commitments to the court. The facts
before us are similar.
This case is not one where plaintiff, “show[ed] a failure to move with the
dispatch reasonably expected of a party prosecuting a case.” Adams, 29 F.3d at
875 (citations omitted). Rather, this is a case where plaintiff has “willfully failed to
comply with...court orders, and to comply with outstanding discovery requests,
and failed to advance plausible reasons for the failures.” Bedwell v. Int'l Fidelity
Ins. Co., 843 F.2d 683, 695 (3d Cir.1988).

14

Taking into consideration plaintiff's unexplained delays extending
throughout this case, the disrespect to movants by continuing depositions without
proffering substantial explanations, plaintiff's failure to comply with multiple court
orders, insufficient and incomplete answers to interrogatories, and finally
admitting to blatant discovery stalling at deposition, we find the conduct was
done willfully and in bad faith. Therefore, Poulis factor four (4) weighs heavily in
favor of sanctions.
(5) Meritoriousness of the claim
The court must consider the merit of the claim before dismissing the
complaint. Poulis, 747 F.2d at 868. “A claim...will be deemed meritorious when
the allegations of the pleadings, if established at trial, would support recovery by
plaintiff.” Poulis, 747 F.2d at 869-870. Summary judgment standards need not
apply. Id. at 869.
Plaintiff here might have succeeded at trial if his claims were proved. We
note that his complaint alleges serious misconduct on the part of both
defendants. Had plaintiff complied with discovery requests and court orders his
claims may have been established as meritorious.
Regardless, every case raises questions of fact and of law. Movants have
also proffered defenses and claims, which if established at trial, may support
recovery. Thus in this case “both sides' positions appear [to be] reasonable from
15

the pleadings and...an examination of meritoriousness [does] not appear to
advance the analysis one way or another.” Bedwell, 843 F.2d at 696 (citations
omitted). Therefore, we find that “[t]he meritoriousness factor here is neutral and
not dispositive.” Id.
(6) Alternative Sanctions
A district court must consider alternative sanctions before dismissing a
case with prejudice. Adams, 29 F.3d at 876. Sanctions other than dismissal
include considering certain facts as established, prohibiting evidence, rendering
judgment by default, and requiring payment of attorney's fees. FED. R. CIV. P.
37(b)(2)(A)-(E).
In this case, we are unable to determine the appropriateness of alternative
sanctions without having more information, to wit, the discovery plaintiff failed to
provide.
The facts of record support movants’ contentions. If we could conclude
otherwise then the balance of the factors might meander away from dismissal as
a sanction. However, we find that excluding the outstanding discovery as
evidence of plaintiff’s case in chief would be “tantamount to a dismissal, and
would ‘simply result in the delay of an entry of judgment in favor of [movants] and
against [plaintiff].’” Bedwell, 843 F.2d at 696. Therefore, Poulis factor six (6)
favors dismissal.
16

Plaintiff’s argument
In his brief in opposition to the defendants’ motion to dismiss (Doc. 59),
plaintiff first argues for the relevance of International Brotherhood of Electrical
Workers Local Union No. 380, Heath & Welfare Fund v. Travis Electric, Inc., Civ.
No. 07-1649, WL2954751 (E.D. Pa. July 30, 2008). That case dealt with an
alternative request for arbitration, denied because Rule 7(b) of the Federal Rules
of Civil Procedure requires the request to be in the form of a motion, and Eastern
District Local Rule 7.1(c) requires briefing. In reality, International Brotherhood is
wholly irrelevant to the instant case because (1) no alternative request for
arbitration is involved here; and (2) under normal circumstances we specifically
forbid formal discovery motions. See n.8.
Plaintiff next argues, in at least a hint of Poulis, that the willful and dilatory
conduct referred to by defendants in their brief is described as prejudicial and
cannot be cured by sanctions other than dismissal, but defendants did not
describe the prejudice in particular terms. We agree with plaintiff, and found the
factor neutral.
Plaintiff claims four months passed before he knew of the UPS
interrogatories because they were mistakenly not downloaded, presumably from
an email. Plaintiff was well aware of the discovery deadlines in force at the time,

17

and should have queried UPS counsel regarding the interrogatories. Computer
mistakes might excuse four days or even four weeks, but not four months.
On the whole, plaintiff’s brief did not advance his case.
Conclusion
After a careful review we find, in weighing all of the factors set forth above,
dismissal of this case with prejudice is warranted.9 An appropriate order follows.

Date: July 26, 2017

9

s/ James M. Munley_______
JUDGE JAMES M. MUNLEY
United States District Court

Defendants’ motion seeks attorneys’ fees and costs in addition to dismissal.
We will deny the motion insofar as fees and costs are concerned because we
find dismissal to be a sufficient discovery sanction in this case.
18