Opinion
Civil Action 2:09-cv-1169
08-18-2022
CAITLIN RUSSO Plaintiff, v. DIOCESE OF GREENSBURG Defendant.
Wiegand District Judge.
REPORT AND RECOMMENDATION ECF NO. 56
LISA PUPO LENIHAN United States Magistrate Judge.
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss for Lack of Prosecution filed by Defendant Diocese of Greensburg pursuant to Federal Rule of Civil Procedure 41(b) (ECF No. 56) be granted with prejudice.
II. PROCEDURAL HISTORY
Plaintiff Caitlin Russo (“Russo” or “Plaintiff”) filed her Complaint in this civil action almost 13 years ago. Complaint, ECF No. 1. Plaintiff, then 19 years of age, alleged the following claims against the Diocese of Greensburg (“Diocese”) and former Defendant Greensburg Central Catholic High School (“GCC”): (1) violations of Title IX of the Education Amendments of 1972 (“Title IX”); (2) retaliation under Title IX; (3) discrimination under § 504 of the Rehabilitation Act of 1973; (4) breach of contract; (5) intentional infliction of emotional distress; and (6) negligent infliction of emotional distress. ECF No. 1. On September 15, 2010, the late Chief Judge Gary Lancaster, to whom the case was originally assigned, dismissed GCC as a party Defendant. ECF No. 29.
Between August 28, 2009, and April 14, 2011, the parties litigated the case. From December 22, 2009, through September 15, 2010, the parties engaged in discovery on the issue of whether the Diocese and/or GCC received federal financial assistance for purposes of Title IX. Related to the issue of federal financial assistance, the parties filed petitions for interlocutory appeal which were denied by the Third Circuit Court of Appeals. Thereafter, the case moved forward into fact discovery.
The case went to mediation on February 28, 2011, which was unsuccessful. ECF Nos. 41 & 47. Thereafter, Plaintiff's counsel moved to withdraw from the case due to “an irreparable breakdown in the attorney-client relationship ....” ECF No. 48. Counsel's motion was granted. ECF No. 49. Thereafter, Judge Lancaster gave Plaintiff 30 days in which to find substitute counsel, and if unsuccessful, the Court permitted Plaintiff to proceed pro se. ECF No. 49. On May 2, 2011, Plaintiff wrote to Judge Lancaster requesting an extension of at least six (6) months to find new counsel. ECF No. 51. Instead of ruling on the motion, Judge Lancaster administratively closed the case. ECF No. 52.
Since May 2011, no new counsel has entered their appearance on Plaintiff's behalf and Plaintiff has taken no steps to move the case forward with or without counsel, until 11 years later, April 20, 2022, when she filed an undated letter with the Court. ECF No. 53. The letter indicates that she has been unsuccessful in securing new counsel and asks the Court to reopen the case. Id. Defendant Diocese timely filed a response to Plaintiff's Motion to Reopen. ECF No. 55. That same day, Defendant Diocese filed the Motion to Dismiss for Lack of Prosecution presently at bar. ECF No. 56.
Thereafter, Plaintiff informed the Court that her address of record was no longer correct, and she was instructed as to how to update her address on the record. The clerk also sent a copy of the Motion to Dismiss for Lack of Prosecution (ECF No. 56) and Brief in Support (ECF No. 57) to Plaintiff's current address. The Court entered an Order indicating that Plaintiff's responsive brief was due on June 2, 2022, and a copy of that order was sent to Plaintiff's current address. ECF Nos. 58 & 59.
Plaintiff filed no response by the June 2, 2022, deadline. However, on July 21, 2022, the Clerk docketed, as a Motion to Extend Time (ECF No. 63) a letter from Plaintiff dated May 20, 2022. The envelope containing the letter was postmarked May 25, 2022 (ECF No. 63-1) and the Court does not know why it was not docketed until July. In the latter plaintiff states that she sustained a torn rotator cuff and was placed on medications. She was told not to make any important/legal decisions while on the medications and requests that the Court grant an indefinite extension of time or dismiss her case without prejudice so she “can get the necessary surgery and therapy and than [sic] get legal representation.” ECF No. 63. She enclosed her latest emergency room report dated May 16, 2022, which indicates that she was prescribed pain medication, 1 tablet by mouth every 6 hours for 5 days. She was also given 2 tablets of pain medication upon leaving the hospital. The Court filed this document under seal. ECF No. 64. In response to a motion by Defendant, the Court forwarded copies of the sealed document to Defendant so that it could respond to Plaintiff's Motion to Extend. Defendant timely filed its Response on August 12, 2022.
III. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure addresses the involuntary dismissal of an action or a claim. It provides that:
[i]f 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) and any dismissal not under this rule - except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 - operates as an adjudication on the merits.Fed. R. Civ. P. 41(b).
A. The Poulis Factors
In Poulis v. States Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit Court of Appeals set forth the following six factors to be weighed in considering whether dismissal is proper under Rule 41(b):
(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.Id. at 868 (emphasis omitted). In balancing the Poulis factors, no single factor is dispositive, nor do all factors need to be satisfied to result in dismissal of the complaint. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). However, in determining whether a dismissal is warranted, the Court must analyze the factors in light of the “strong policy favoring decisions on the merits.” Hildebrand v. Allegheny Cnty., 923 F.3d 128, 132 (3d Cir. 2019). The Third Circuit has emphasized that “dismissals with prejudice or defaults are drastic sanctions, termed ‘extreme' by the Supreme Court,” and that they “must be a sanction of last, not first, resort.” Poulis, 747 F.2d at 867-68, 869 (citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976)). “Cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand, 923 F.3d at 132.
B. Application of the Poulis Factors
1. The extent of the party's personal responsibility
“[I]n determining whether dismissal is appropriate, we look to whether the party bears personal responsibility for the action or inaction which led to the dismissal.” Adams v. Trs. of the N.J. Brewery Emps. Pension Tr. Fund, 29 F.3d 863, 873 (3d Cir. 1994). In determining personal responsibility for the delay, the Court must distinguish “between a party's responsibility for delay and counsel's responsibility.” Hildebrand, 923 F.3d at 133 (citing Poulis, 747 F.2d at 868). A plaintiff is not conjecturally responsible for her counsel's delay. Id. Any doubt as to personal responsibility should be resolved “‘in favor of reaching a decision on the merits.'” Id. at 138 (quoting Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
Here, Plaintiff was informed by Judge Lancaster on April 14, 2011, that she had 30 days to secure new counsel, and if unable to do so, the court would accept that she was proceeding pro se. ECF No. 49. Consequently, the responsibility to move the case forward during the past 11 years was, and continues to be, Plaintiff's responsibility. She has failed to move the case forward pro se. This Poulis factor weighs heavily in favor of dismissal.
2. Prejudice to the adversary
Prejudice to the adversary is a substantial factor in the Poulis analysis; but like any other factor, it is not dispositive. Hildebrand, 923 F.3d. at 134. “Relevant examples of prejudice include ‘the irretrievable loss of evidence[] [and] the inevitable dimming of witnesses' memories.” Id. (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)). A party is not required “to show ‘irremediable' harm for [this factor] to weigh in favor of dismissal.” Id. (quoting Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). If the opposition is unable to prepare “a full and complete trial strategy” then there is sufficient prejudice to favor dismissal. Id. (citation omitted).
Here, Defendant would suffer extreme prejudice if this case continues. Plaintiff filed her Complaint 13 years ago. She has failed to prosecute this case for the last 11 years. Witnesses' memories over the last 14-15 years since the interactions raised in the Complaint allegedly occurred have most certainly dimmed. Facts surrounding the sexual harassment allegations in the Complaint are grounded in observations and conversations, rather than documents. To date, none of these witnesses have been deposed about the underlying factual allegations or the Diocese's defenses. Defendant would expend substantial effort and costs in finding witnesses who have long-since left employment or their official positions at the Diocese. Some witnesses may now be unavailable due to death, incapacitation, and geographical location. In fact, Plaintiff's father, who allegedly was involved in many conversations with the Defendant, has since passed away. This Poulis factor weighs heavily in favor of dismissal.
3. A history of dilatoriness
A history of dilatoriness is generally established by repeated “delay or delinquency.” Adams, 29 F.3d at 874. While once or twice is normally insufficient, this factor weighs in favor of dismissal where the plaintiff has a history of repeated delay. Hildebrand, 923 F.3d at 135 (citation omitted). In addition to repeated acts, “extensive” delay can also create a history of dilatoriness. Adams, 29 F.3d at 874. A “failure to prosecute” does not require that plaintiff take affirmative “steps to delay the trial .... It is quite sufficient if [he/she] does nothing . ” Id. at 875 (citation omitted).
“While extensive delay may weigh in favor of dismissal, ‘a party's problematic acts must be evaluated in light of its behavior over the life of the case.'” Hildebrand, 923 F.3d at 135 (quoting Adams, 29 F.3d at 875). Thus, where a plaintiff has not been previously delinquent the weight given even a long delay should be mitigated. Id.
Here, Plaintiff was initially given 30 days to find new counsel. She did not do so but asked the Court for an additional six months. After the six month period expired, Plaintiff did nothing. This inaction delayed the prosecution of this case for 11 years. After motioning to reopen the case, Plaintiff was dilatory again. She was ordered to file a response to the motion at bar by June 2, 2022, and again failed to comply with the Court's Order. Instead, Plaintiff sent a letter to the Court dated May 20, 2022 (postmarked May 25, 2022), stating that she could not respond because she had been prescribed pain medication and was instructed not to make any important/legal decisions while taking the medication. According to the medical record provided by Plaintiff (ECF No. 64), this medication, was prescribed on May 16, 2022, and was to be taken for five (5) days with no refills. Simple math reveals that the Plaintiff stopped taking the medication May 22, 2022. No explanation was provided as to why Plaintiff could not respond by the June 2, 2022 deadline. Since the sending of the May 20th letter, Plaintiff has provided the Court with no further information, nor has she responded to the Motion at bar. More than three months have passed since this Motion was filed on May 4, 2022 (ECF Nos. 56 & 57), almost three months have passed since the date of Plaintiff's letter requesting an extension (ECF No. 63), and more than two months have passed since the original due date (June 2, 2022) for Plaintiff's response as ordered by this Court. Plaintiff has taken no steps to submit a response since the June 2, 2022, deadline. This factor weighs heavily in favor of dismissal.
4. Whether the party's conduct was willful or in bad faith
In determining if plaintiff's conduct constituted willful or bad faith, the “court should look for ‘the type of willful or contumacious behavior' that can be characterized as ‘flagrant bad faith,' such as [a case history of] failing to answer interrogatories for nearly a year and a half, demanding numerous extensions, ignoring admonitions by the court, and making false promises to correct delays.” Id. (citing Scarborough, 747 F.2d at 875 (citation omitted)). “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Although “[a] lengthy delay reflects ‘inexcusable negligent behavior,' id. at 876, . . . that behavior alone does not rise to the level of willfulness or bad faith.” Hildebrand, 923 F.3d at 135.
Finally, “[b]ecause the harsh sanction of dismissal should serve to deter bad faith or selfserving behavior, and because of our policy of favoring decisions on the merits, [in the absence of evidence] that the delay was not effectuated willfully or in bad faith, [this factor] should weigh against dismissal.” Id. at 136.
Here, Plaintiff has never responded to the Diocese's First Set of Interrogatories and Request for Production of Documents served on January 27, 2011, nor to the Diocese's Second Set of Interrogatories and Request for Production of Documents served on March 10, 2011. She has produced no documents responsive to those requests. Affidavit of Allison S. Peterson, Esq., ECF No. 57-2 ¶ 13. At the time the case was closed in May 2011, fact discovery remained ongoing and outstanding. Depositions regarding the factual averments in the Complaint had not yet moved forward, including depositions of the Plaintiff and both of her parents. Only three (3) depositions of Diocesan employees had been taken in 2010 solely on the issue of federal financial assistance. Id. ¶ 12 & n.1. Plaintiff has offered no excuse for her excessive procrastination. Her silence and failure to pursue her case, pro se, or to obtain substitute counsel within the six (6) months requested in her May 2, 2011, letter to Judge Lancaster, suggested that she had abandoned her case. Plaintiff has not secured a new attorney for 11 years. Viewed in its totality, such behavior can constitute willful and bad faith conduct. See Hildebrand, 923 F.3d at 135. This factor weighs heavily in favor of dismissal.
5. Effectiveness of sanctions other than dismissal
A district court must thoroughly consider “alternative sanctions before dismissing a case with prejudice.” Id. (citing Briscoe, 538 F.3d at 262). The court should also provide an analysis of effectiveness sufficient “to honor [the] longstanding tradition of favoring decisions on the merits.” Id. In so doing, the court should be mindful that “[a]lternatives are particularly appropriate when the plaintiff has not personally contributed to the delinquency.” Poulis, 747 F.2d at 866 (citations omitted). “[A]lternative sanctions need only be effective toward mitigating the prejudice caused by dilatory behavior or delinquency.” Hildebrand, 923 F.3d at 136. They are not required to be “completely ameliorative.” Id.
Here, Plaintiff has personally contributed to the extreme delay in the prosecution of this civil action. Monetary sanctions cannot ameliorate the underlying prejudice sustained by Defendant from the passage of time. That is, no alternative sanctions can mitigate the dimming of memories for events that allegedly occurred 14-15 years ago when Plaintiff was in high school. Plaintiff's past behavior for the past 11 years leads the Court to conclude that alternate sanctions would be wholly ineffective. This factor weighs heavily in favor of dismissal.
6. Meritoriousness of claim or defense
“The standard for determining whether a plaintiff's claims are meritorious ‘is moderate.'” Adams, 29 F.3d at 876. The standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not a summary judgment standard, is applicable in a Poulis analysis. Id. at 869-70.
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” (Fowler [v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (citation omitted)]; see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18, (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
Here, Plaintiff was represented by counsel when the Complaint was filed and for less than two (2) years thereafter. Plaintiff's counsel withdrew their appearance in 2011, citing “an irreparable breakdown in the attorney-client relationship and ability to effectively communicate which prevent undersigned counsel from providing effective assistance of counsel. This breakdown includes a refusal by Plaintiff to accept both regular and certified mail from counsel.” ECF No. 48 ¶ 1. Thereafter, Plaintiff was to secure alternate counsel or prosecute the action pro se. She has done neither. Consequently, fact discovery has never moved forward, and it is unclear whether Plaintiff can successfully prosecute this civil action or whether Defendant can adequately defend. Therefore, this factor is neutral.
C. Summation of Poulis Factors
All but one of the Poulis factors weigh heavily in favor of dismissal. Therefore, it will be recommended that this case be dismissed with prejudice. To dismiss without prejudice as Plaintiff suggests in her May 20 letter would simply exacerbate the circumstances detailed above and further prejudice Defendant. In addition, as Defendant argues, the statute of limitations applicable to all of Plaintiff's claims has long expired. ECF No. 69 at 5.
I. CONCLUSION
For the above reasons, it is respectfully recommended that the Motion to Dismiss for Lack of Prosecution filed by Defendant Diocese of Greensburg pursuant to Federal Rule of Civil Procedure 41(b) (ECF No. 56) be granted with prejudice.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.