Opinion
Civil Action 22-4668
02-08-2023
JACKIE PEEPLES v. BOSCOV'S DEPARTMENT STORE, LLC
ORDER
MURPHY, JUDGE
AND NOW, this 8th day of February 2023, upon consideration of Plaintiff Jackie Peeples's Motion to proceed in forma pauperis (DI 2), and Complaint (DI 1), it is ORDERED:
1. Plaintiff's Motion for leave to proceed in forma pauperis (DI 2) is GRANTED pursuant to 28 U.S.C. § 1915.
2. The Complaint is DEEMED filed.
3. The Complaint is DISMISSED IN PART WITH PREJUDICE and
DISMISSED IN PART WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for the reasons stated in the Court's Memorandum as follows:
a. The claims brought pursuant to the Federal Trade Commission Act are DISMISSED WITH PREJUDICE.
b. The claims brought pursuant to the Fair Credit Reporting Act are DISMISSED WITHOUT PREJUDICE.
4. Ms. Peeples may file an amended complaint no later than March 10, 2023 as to any claims dismissed without prejudice. Any amended complaint must identify all defendants in the caption of the amended complaint in addition to identifying them in the body of the amended complaint and shall state the basis for Ms. Peeples's claims against each defendant. The amended complaint shall be a complete document that does not rely on the initial Complaint or other papers filed in this case to state a claim. When drafting her amended complaint, Ms. Peeples should be mindful of the Court's reasons for dismissing the claims in her initial Complaint as explained in the Court's Memorandum. Upon the filing of an amended complaint, the Clerk shall not make service until so ORDERED by the Court.
5. The Clerk of Court is DIRECTED to send Ms. Peeples a blank copy of this Court's current standard form to be used by a self-represented litigant filing a civil action bearing the above-captioned civil action number. Ms. Peeples may use this form to file her amended complaint if she chooses to do so.
This form is available on the Court's website at http://www.paed.uscourts.gov/documents2/forms/forms-pro-se.
6. If Ms. Peeples does not wish to amend her Complaint and instead intends to stand on her Complaint as originally pled, she may file a notice with the Court no later than March 10, 2023 stating that intent, at which time the Court will issue a final order dismissing the case. Any such notice should be titled “Notice to Stand on Complaint,” and shall include the civil action number for this case. See Weber v. McGrogan, 939 F.3d 232 (3d Cir. 2019) (“If the plaintiff does not desire to amend, he may file an appropriate notice with the district court asserting his intent to stand on the complaint, at which time an order to dismiss the action would be appropriate.” (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n.1 (3d Cir. 1976))); In re Westinghouse Sec. Litig., 90 F.3d 696, 703-04 (3d Cir. 1996) (holding “that the district court did not abuse its discretion when it dismissed with prejudice the otherwise viable claims . . . following plaintiffs' decision not to replead those claims” when the district court “expressly warned plaintiffs that failure to replead the remaining claims . . . would result in the dismissal of those claims”).
7. If Ms. Peeples fails to file any response to this Order, the Court will conclude that Ms. Peeples intends to stand on her Complaint and will issue a final order dismissing this case. See Weber, 939 F.3d at 239-40 (explaining that a plaintiff's intent to stand on his complaint may be inferred from inaction after issuance of an order directing him to take action to cure a defective complaint).
The six-factor test announced in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), is inapplicable to dismissal orders based on a plaintiff's intention to stand on her complaint. See Weber, 939 F.3d at 241 & n.11 (treating the “stand on the complaint” doctrine as distinct from dismissals under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order, which require assessment of the Poulis factors); see also Elansari v. Altria, 799 Fed.Appx. 107, 108 n.1 (3d Cir. 2020) (per curiam). Indeed, an analysis under Poulis is not required when a plaintiff willfully abandons the case or makes adjudication impossible, as would be the case when a plaintiff opts not to amend her complaint, leaving the case without an operative pleading. See Dickens v. Danberg, 700 Fed.Appx. 116, 118 (3d Cir. 2017) (per curiam) (“Where a plaintiff's conduct clearly indicates that he willfully intends to abandon the case, or where the plaintiff's behavior is so contumacious as to make adjudication of the case impossible, a balancing of the Poulis factors is not necessary.”); Baker v. Accounts Receivables Mgmt., Inc., 292 F.R.D. 171, 175 (D.N.J. 2013) (“[T]he Court need not engage in an analysis of the six Poulis factors in cases where a party willfully abandons her case or otherwise makes adjudication of the matter impossible.” (citing cases)).