Pro se Plaintiffs Donna M. Zomerfeld and Christopher Zomerfeld (“Zomerfelds”) commenced the above-captioned action on February 23, 2022, against Defendants Lowes, Allstate Ins., and Samsung (collectively, “Defendants”) in the Court of Common Pleas of Luzerne County, seeking $10 million in damages. (Doc. 1-1). In the complaint, Zomerfelds allege that a fire started in their house as the result of a Smart Stove that Donna Zomerfeld purchased at the Lowes store in Edwardsville, Pennsylvania. (Doc. 1-1, ¶¶ 3-6). Zomerfelds assert “phone received 3 messages stating stove is malfunctioning,” and that “the house sustained large amounts of damage,” including water, smoke, and fire damage. (Doc. 1-1, ¶¶ 7, 9). Zomerfelds allege that “the stove and/or stoves are faulty,” an assert claims against Defendants for breach of contract and product liability. (Doc. 1-1, ¶¶ 23-25). As relief, Zomerfelds seek punitive and compensatory damages in the amount of $10 million. (Doc. 11, ¶¶ 20, 22). On March 21, 2022, Defendants removed this action to the United States District Court for the Middle District of Pennsylvania under 28 U.S.C. § 1446 (b)(1) based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1).

On March 23, 2022, Lowes moved to dismiss the claims against it on several grounds. (Doc. 3). On March 24, 2022, Lowes filed a brief in support of the motion to dismiss. (Doc. 4). On June 11, 2022, the Court issued an Order directing that Zomerfelds “file their brief in opposition to the Defendants' motion to dismiss on or before Wednesday, May 25, 2022.” (Doc. 5). The Court warned that if an opposition brief is not timely filed, Zomerfelds “shall be deemed not to oppose the motion to dismiss.” (Doc. 5); see L.R. 7.6. To date, Zomerfelds have no filed the ordered brief in opposition to Lowes' motion to dismiss. For the following reasons, it is respectfully recommended that Lowes' motion to dismiss (Doc. 3) be GRANTED, and that Zomerfelds' complaint (Doc. 1-1) be DISMISSED WITH PREJUDICE for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.

I. LEGAL STANDARD

Rule 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court of the United States held in Twombly, in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether the complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Iqbal, the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

Additionally, a document filed Pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A Pro se complaint, “however in artfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 52021 (1972). Nonetheless, every complaint, including that filed by Pro se litigant, is subject to the pleading requirements as articulated in Rule 8(a) of the Federal Rules of Civil Procedure, which requires a “showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (internal quotation marks omitted).

II. DISCUSSION

Generally, a dispositive motion may not be granted merely because it is unopposed. However, because Local Rules of Court must be “construed and applied in a manner consistent with the Federal Rules of Civil Procedure,” the disposition of an unopposed motion ordinarily requires a merits analysis. Anchorage Assoc. v. V.I. Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990). The United States Court of Appeals for the Third Circuit has stated, however, 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). Furthermore, failure to prosecute an action may warrant dismissal under Federal Rule of Civil Procedure 41(b), which, in pertinent part, provides:

Local Rule of Civil Procedure 7.6 requires that a party opposing any motion, “shall file a brief in opposition within fourteen (14) days after service of the movant's brief . . . A party who fails to comply with this rule shall be deemed not to oppose such motion.” Local Rule 7.6.

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 . . . operates as an adjudication on the merits.

Fed. R. Civ. P. 41(b).

Additionally, “[u]nder Rule 41(b), a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order.” Qadr v. Overmyner, 642 Fed.Appx. 100, 102 (3d Cir. 2016) (per curium) (citing Fed.R.Civ.P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (recognizing that a court can dismiss a case sua sponte under Rule 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 an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted); Stackhouse, 951 F.2d at 30 (holding that failure of a plaintiff to comply with a court's specific direction to comply with a local rule requiring the filing of an opposing brief warranted the treatment of a motion to dismiss as being unopposed and subject to dismissal without a merits analysis).

That discretion, however, is governed by the factors articulated in Poulis v. State FarmFire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). As the United States Court of Appeals for the Third Circuit has explained:

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.” Lopezv. Cousins, 435 Fed.Appx. 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klaus, 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.” Briscoe, 538 F.3d at 263 (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)). Consistent with this view, it is well-settled that “no single Poulis factor is dispositive, [and it is] clear that not all of the Poulis factors need be satisfied in order to dismiss a complaint.” Briscoe, 538 F.3d at 263 (internal quotation marks and citations omitted). Moreover, 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, 296 F.3d at 191; Tillio v. Mendelsohn, 256 Fed.Appx. 509 (3d Cir. 2007); Reshard v. Lankenau Hosp., 256 Fed.Appx. 506 (3d Cir. 2007); Azubuko v. Bell Nat. Org., 243 Fed.Appx. 728 (3d Cir. 2007).

A. PERSONAL RESPONSIBILITY

The first Poulis factor is an inquiry into the non compliant party's personal responsibility. Here, Zomerfelds are personally responsible for their failure to comply with Court orders because they are not represented by counsel. “[U]nlike a situation in which a dismissal is predicated upon an attorney's error, [a] plaintiff [proceeding] Pro se [is] directly responsible for her actions and inaction in the litigation.” Clarke v. Nicholson, 153 Fed.Appx. 69, 73 (3d Cir. 2005). Zomerfelds were aware of their requirements to respond to Lowes' motion to dismiss, and received the Court's Order directing them to do so. (Doc. 5, at 1). Thus, the first factor weighs in favor of dismissal.

B. PREJUDICE TO DEFENDANTS

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. As 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. 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.

Briscoe, 538 F.3d at 259-60.

Here, Zomerfelds' failure to litigate this claim, or to comply with the Court's Order, now wholly frustrates and delays the resolution of this action. In such instances, Defendants are plainly prejudiced by Zomerfelds' continuing inaction and dismissal of the case rests in the discretion of the Court. Tillio, 256 Fed.Appx. 509 (failure to timely serve pleadings compels dismissal); Reshard, 256 Fed.Appx. 506 (failure to comply with discovery compels dismissal); Azubuko, 243 Fed.Appx. 728 (failure to file amended complaint prejudices defense and compels dismissal). Therefore, the second Poulis factor weighs in favor of dismissal.

C. DILATORINESS

The third Poulis factor is whether there is a history of dilatory conduct on the plaintiff's part. “Extensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response . . ., or consistent tardiness in complying with court orders.'” Briscoe, 538 F.3d at 260-61 (quoting Adams, 29 F.3d at 874) (some citations omitted). Here, the procedural history of this case reveals “consistent tardiness” that amounts to dilatory conduct. As noted supra, Zomerfelds were ordered to file a responsive pleading to Lowes' motion to dismiss by May 25, 2022. (Doc. 5, at 1). As of the date of this Order, Zomerfelds have failed to comply with the Court's Order or respond to Lowes' motion to dismiss as directed. (Doc. 5). Therefore, the third Poulis factor weighs in favor of dismissal.

D. BAD FAITH

The fourth Poulis factor-whether the conduct of the party or the attorney was willful or in bad faith-also cuts against Zomerfelds in this case. In this setting, the undersigned must assess whether this conduct reflects mere inadvertence or willful conduct, in that it involved “strategic,” “intentional or self-serving behavior,” and not mere negligence. Adams, 29 F.3d at 875. At this juncture, when Zomerfelds have failed to comply with instructions of the Court, the undersigned is compelled to conclude that Zomerfelds' actions are not isolated, accidental, or inadvertent, but instead reflect an ongoing disregard for this case and the Court's instructions. Therefore, the fourth Poulis factor weighs in favor of dismissal.

E. ALTERNATIVE SANCTIONS

The fifth Poulis factor is whether alternative sanctions would be more effective 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, 538 F.3d at 262-63; Emerson, 296 F.3d at 191. This case presents such a situation where the plaintiffs' status as Pro se litigants severely limits the ability of the Court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. The Court warned that “[i]f an oppositive brief is not timely filed, [Zomerfelds] shall be deemed not to oppose the motion to dismiss.” (Doc. 5, at 1). By entering an Order and counseling Zomerfelds on their obligations in this case, the Court has endeavored to use lesser sanctions, but to no avail. (Doc. 5, at 1). Zomerfelds still ignore their responsibilities as litigants. Since lesser sanctions have been tried, and have failed, only the sanction of dismissal remains available to the Court. Therefore, the fifth Poulis factor weighs in favor of dismissal.

F. MERITORIOUSNESS

Regarding the meritoriousness of Zomerfelds' claims, consideration of this factor cannot save Zomerfelds' particular claims because Zomerfelds are now wholly non-compliant with the Court's instructions. Zomerfelds cannot refuse to comply with the Court's orders, which are necessary to allow resolution of the merits of their claims, and then assert the untested merits of these claims as grounds for denying a motion to dismiss. Furthermore, it is well settled that, “‘no single Poulis factor is dispositive,' [and it is] clear that ‘not all of the Poulis factors need be satisfied in order to dismiss a complaint.'” Briscoe, 538 F.3d at 263 (quoting Ware, 322 F.3d at 222; Mindek, 964 F.2d at 1373). in addition, the undersigned finds that Zomerfelds' complaint violates Rule 8's dictate that a complaint “must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); (Doc. 1-1). Far from being a plain statement showing how Zomerfelds are entitled to relief from Defendants, the complaint leaves all of the “defendants having to guess what of the many things discussed constituted [a cause of action].” Binsack v. Lackawanna Cty. Prison, 438 Fed.Appx. 158, 160 (3d Cir. 2011). simply put, the undersigned cannot discern the factual grounds or legal basis for Zomerfelds' complaint. Therefore, Rule 8 compels dismissal of the complaint. Therefore, the untested merits of the non-compliant Zomerfelds' claims, standing alone, cannot prevent imposition of sanctions. Accordingly, the sixth Poulis factor weighs in favor of dismissing Zomerfelds' complaint with prejudice.

G. WEIGHING THE POULIS FACTORS

In evaluating the Poulis factors, the undersigned notes that no factor is dispositive, and there is no “magical formula” or “mechanical calculation.” In re Asbestos Prod. Liab. Litig. (No.VI), 718 F.3d 236, 246 (3d Cir. 2013). in fact, “not all of the Poulis factors need be satisfied.” In re Asbestos Prod. Liab. Litig. (No. VI), 718 F.3d at 246. in this case, giving Zomerfelds the benefit of the doubt, every factor weighs heavily in favor of dismissal. Weidenhof v. ZimmerInc., No. 1:16-CV-2105, 2018 WL 7106980, at *12 (M.D. Pa. Dec. 28, 2018), report and recommendation adopted, 2019 WL 330176 (M.D. Pa. Jan. 25, 2019) (dismissing complaint where every Poulis factor weighed in favor of dismissal); In re Avandia Mktg., Sales Pracs. & Prod. Liab. Litig., 319 F.R.D. 480, 486 (E.D. Pa. 2017) (dismissing with prejudice where every factor except bad faith weighs heavily in favor of dismissal). Accordingly, the undersigned finds that dismissal with prejudice is appropriate in this case.

III. RECOMMENDATION

Based on foregoing, it is respectfully recommended that Lowes' motion to dismiss (Doc. 3) be GRANTED, that the Court sua sponte dismiss the complaint with prejudice, and that the Clerk of Court be directed to CLOSE this case.

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 2, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Zomerfeld v. Lowes

Summary

Opinion

Zomerfeld v. Lowes

Zomerfeld v. Lowes

Case Details

Citations

Citing Cases

Zomerfeld v. Lowes

Summary

Opinion

Zomerfeld v. Lowes

Zomerfeld v. Lowes

Case Details

CitationsCopy Citation

Citing Cases

Citations