ARIAN GENRE FILMS, INC. v. MOBILE SATELLITE COMMUNICATIONS
MEMORANDUM OPINION indicating that, for reasons more fully stated within, the Court will dismiss this case, with prejudice, for failure to prosecute. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 10/10/17. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ARIAN GENRE FILMS, INC.,
District Judge Nora Barry Fischer
For the reasons that follow, the Court will dismiss the above-captioned action, with prejudice,
for failure to prosecute.
Plaintiff Arian Genre Films, Inc. initiated this civil action for breach of contract in the Court
of Common Pleas of Allegheny County, and Defendant Mobile Satellite Communications d/b/a
Pittsburgh International Telecommunications subsequently removed it to this Court on April 19,
2017. (Docket No. 1). Defendant filed its answer to the complaint on April 27, 2017. (Docket No.
6). On the same day, the Court entered a memorandum order setting a case management conference
for May 16, 2017. (Docket No. 7).
On May 3, 2017, prior to the case management conference, Defendant filed a motion for
judgment on the pleadings and brief in support. (Docket Nos. 9, 10). As a result, the Court ordered
that Plaintiff’s response was due by June 5, 2017; Defendant’s reply, if any, was due by June 18,
2017; and Plaintiff’s sur-reply, if any, was due by July 3, 2017. (Docket No. 11). The Court also set
hearing and oral argument on the motion for July 18, 2017. (Id.).
However, in the interim, on May 12, 2017, Plaintiff’s counsel, John Dougherty, Esq., filed a
motion to withdraw as counsel, asserting that Plaintiff and its president/chief executive officer,
Ardeshir Arian (“Mr. Arian”), have repeatedly failed and refused to accept and follow his advice
and direction; have failed to provide critical and potentially dispositive information, documents, and
the like; have failed and refused to communicate and cooperate with him with regard to the legal
claims in the case; and have failed and refused to meet the financial obligations owed to him and his
firm. (Docket No. 15 at ¶¶ 3-4). Based on these circumstances, Attorney Dougherty asserted that the
attorney-client relationship was irreparably and irreconcilably harmed. (Id. at ¶ 5). The Court
initially denied the motion to withdraw, without prejudice, the same day, and converted the case
management conference into a telephonic status conference with the parties on May 16, 2017.
(Docket Nos. 17, 18).
As noted from the conference’s minute entry:
The Court earlier provided counsel with a draft order staying all
pending deadlines and dismissing the Complaint, without prejudice,
until such time as Plaintiff retained new counsel and said counsel
entered his or her appearance with the Court. A 45-day deadline was
set for entry of appearance by new counsel, after which the Complaint
would be dismissed with prejudice. Counsel for both parties
confirmed that the draft order met their concerns regarding the status
of the case. Attorney Dougherty noted that he had emailed Plaintiff a
copy of the draft order, but received no response. Attorney Hawley1
also noted that he had provided the Court with Plaintiff’s addresses
and phone numbers. Upon entry of the Order, the Court will attempt
to contact Plaintiff by all available means to provide notice of the
Order. Plaintiff was not responsive to the Court’s attempt to contact
him via telephone during the Status Conference. A final draft of the
Order will be circulated to counsel before filing by the Court.
(Docket No. 18).
In light of the Court’s discussion with counsel during the telephonic status conference, the
Court entered an order granting Attorney Dougherty’s motion to withdraw as Plaintiff’s counsel the
Attorney Hawley is with Attorney Dougherty’s firm, Lyons Dougherty, although he never entered
an appearance in this case.
following day, May 17, 2017. (Docket No. 19) (citing Erie Molded Plastics, Inc. v. Nogah, LLC,
520 F.App’x 82, 84-85 (3d Cir. 2013); Ohntrup v. Makina Ve Kimya Endustri Kurumu, 760 F.3d
290, 294-95 (3d Cir. 2014)). In the same order, the Court stayed all deadlines in the case;
dismissed the complaint, without prejudice; and cautioned “that if Plaintiff does not proceed to
secure new counsel, and said counsel does not enter his or her appearance in the instant case on
or before July 5, 2017, the Court shall dismiss the Complaint, with prejudice, for failure to
prosecute.” (Id.) (emphasis in original) (citing Buschmeier v. G&G Investments, Inc., 222
F.App’x 160, 163 n. 3 (3d Cir. 2007); Carrico v. Village of Sugar Mountain, 114 F.Supp.2d 422,
424 (W.D. N.C. 2000)). The Court served the order on Mr. Arian at both addresses provided by
his counsel via regular and certified mail.
On June 21, 2017, Plaintiff filed a motion to change venue, a motion to appoint counsel,
and a motion to extend time to begin proceedings. (Docket Nos. 20, 21, 22). In these motions,
Plaintiff sought to proceed pro se and/or be represented by Mr. Arian, a non-attorney. The Court
denied the motions on the same day because a corporation is not permitted to proceed pro se or
be represented by a non-attorney in federal court. (Docket No. 23) (citing Rowland v. California
Men’s Colony, 506 U.S. 194, 201-02 (1993); Curbison v. United States Gov’t of N.J., 242 Fed.
App’x 806, 808 (3d Cir. 2007)). The Court further ordered, in accordance with the prior order
from May 17, 2017, that “if Plaintiff does not proceed to secure new counsel, and said counsel
does not enter his or her appearance in the instant case, the Court shall dismiss the Complaint,
with prejudice, for failure to prosecute. New counsel shall enter [his or her] appearance no later
than August 21, 2017.” (Id.) (emphasis in original). The Court mailed the order to Mr. Arian’s
address of record.
Plaintiff filed a motion to extend time to hire an attorney on August 18, 2017, (Docket
No. 24), which the Court granted the same day. (Docket No. 25). In the order, the Court stated
that “Plaintiff shall proceed to secure new counsel, and said counsel shall enter his or her
appearance in the instant case on or before Monday, September 18, 2017.” (Id.). The Court
cautioned that “[n]o further extensions shall be granted,” and that “if Plaintiff does not proceed
to secure new counsel, and said counsel does not enter his or her appearance in the instant case
on the above date, the Court shall dismiss the Complaint, with prejudice, for failure to
prosecute.” (Id.). The Court mailed the order to Mr. Arian’s address of record.
Notwithstanding the Court’s numerous warnings and extensions of time for Plaintiff to
secure counsel, no attorney has entered an appearance on behalf of Plaintiff, and the time to do
so expired more than three weeks ago.
The Court has the inherent power to dismiss a civil action, sua sponte, for lack of
prosecution. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). However, because dismissals
with prejudice under Federal Rule of Civil Procedure 41(b) constitute “drastic sanctions,” the Court
must “provide the plaintiff with an opportunity to explain [the] reasons for failing to prosecute the
case or comply with its orders prior to dismissing a case sua sponte.” Briscoe v. Klaus, 538 F.3d
252, 258 (3d Cir. 2008) (emphasis added). In addition, the Court must consider 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; 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).
“[N]o single Poulis factor is
dispositive,” and “not all of the Poulis factors need to be satisfied in order to dismiss a complaint.”
Briscoe, 538 F.3d at 263 (quotations omitted).
In this case, Plaintiff’s counsel withdrew from representing it approximately five months ago.
The Court informed Plaintiff, through its president and CEO, Mr. Arian, that it needed to obtain
replacement counsel in order to proceed in this action. See Rowland, 506 U.S. at 201-02 (“It has
been the law for the better part of two centuries … that a corporation may appear in the federal
courts only through licensed counsel.”); see also United States v. Cocivera, 104 F.3d 566, 572
(3d Cir. 1996). From May 2017 to August 2017, the Court extended Mr. Arian’s deadline to
obtain replacement counsel twice and warned him three times that if he fails to do so, the Court
will dismiss the case, with prejudice, for failure to prosecute. (Docket Nos. 19, 23, 25). Based
on the Court’s communications and correspondence with Mr. Arian, the Court notes that he
appears to be a sophisticated individual who understood the implications of Court’s orders.
Despite the multiple extensions and warnings, however, Mr. Arian has failed to obtain
replacement counsel by the Court’s deadline of September 18, 2017, a deadline which the Court
notes expired approximately three weeks ago. In addition, the Court notes that it has not heard
from Mr. Arian for almost two months.
In light of the above, Plaintiff, through Mr. Arian, is directly responsible for violating
multiple court orders and failing to advance this case over the last five months. See Beaver
Resources Corp. v. Brawand, 618 Fed. App’x 736 (3d Cir. 2015) (concluding that “[t]he failure
to find a substitute attorney by the Court’s deadline – which was extended multiple times – was
the direct result of [the president’s] inaction” and that he “has no one to blame for his decision to
disobey multiple court orders.”). In this Court’s estimation, Mr. Arian’s conduct has been both
willful and dilatory. See Clearly v. Atria Management Co., LLC, 2014 WL 4770913, *2 (E.D. Pa.
2015) (“The Plaintiff ignored a communication from Chambers, two direct Court orders, and several
extension periods. His decision to ignore these demands, ‘even after express warnings about the
consequences, can only be regarded as willful.’”); Beaver Res. Corp, 618 Fed. App’x at 739 (finding
that the corporation’s president’s failure to comply with numerous court orders to find counsel and to
respect the extensions of time constitutes a history of dilatoriness). Given same, the Court finds that
Mr. Arian’s conduct has caused Defendant to experience prejudice and that, under the circumstances,
less severe sanctions would not be effective, as the case cannot proceed in the absence of Mr. Arian
obtaining replacement counsel. See Lane v. Hundley, 319 F.R.D. 478, 479 (D. Del. 2017) (noting
that a “Plaintiff’s failure to take any action impedes defendant’s ability to prepare a trial strategy
or otherwise resolve the dispute,” and thus constitutes prejudice to the defendant). In the same
vein, even assuming arguendo that Plaintiff’s breach of contract claim otherwise had merit, Mr.
Arian’s decision to flout the Court’s orders and refuse to obtain replacement counsel precludes the
Court from reaching the merits on the claim. In any event, the Court has reviewed Defendant’s
motion for judgment on pleadings and brief in support and concludes that when considering the
attached documents and e-mails, Plaintiff’s breach of contract claim appears to lack merit, especially
given the contingent nature of parties’ negotiations and the fact that Defendant returned Plaintiff’s
$9,000 deposit while they waited to see if the condition precedent to contract formation would be
satisfied. (Docket Nos. 9, 10). Therefore, having considered all of the Poulis factors, the Court finds
that Mr. Arian’s failure to prosecute this action justifies dismissal of same, with prejudice.
In accordance with the foregoing, the Court will dismiss this case, with prejudice, for failure
to prosecute. An appropriate Order follows.
/s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: October 10, 2017
cc/ecf: All counsel of record.
P.O. Box 6696
Woodland Hills, CA 91365
(via regular mail)
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