Opinion
2:20-CV-1865-WSH-CRE
02-18-2022
BRANDON GROSS, Plaintiff, v. CONSOLIDATED WELL SITE SERVICES, Defendant.
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY CHIEF UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
This civil action was initiated in this Court on November 24, 2020, when counsel for Defendant Consolidated Well Site Services removed the employment discrimination matter filed in state court by Plaintiff Brandon Gross. (ECF No. 1). For the reasons that follow, it is respectfully recommended that the instant action be dismissed for Plaintiff's failure to prosecute.
II. REPORT
a. Background
On November 3, 2020, Plaintiff, through counsel, filed an employment discrimination action against Defendant in the Allegheny County Court of Common Pleas. (ECF No. 1-1). On November 24, 2020, Defendant removed the case to this Court. (ECF No. 1). On December 30, 2020, after requesting and receiving an extension of time to do so, Defendant filed an Answer. (ECF No. 7). An initial case management conference was held by this Court on February 3, 2021, and the parties indicated they would complete the ADR process by April 2, 2021. (ECF Nos. 15, 16). The parties subsequently asked for and were permitted to extend the time to complete ADR until May 31, 2021, and the parties scheduled an ENE for May 12, 2021. (ECF Nos. 23-25).
On May 6, 2021, counsel for Plaintiff filed a motion to withdraw as attorney in this matter. (ECF No. 27). The undersigned held a video status conference on May 10, 2021, where counsel was permitted to withdraw, the case was stayed to permit Plaintiff to find new counsel, and a video status conference was scheduled for June 2, 2021. (ECF Nos. 30, 31). At the June 2, 2021 video status conference, Plaintiff indicated that he is still in the process of obtaining new counsel, and the undersigned scheduled a video status conference for June 17, 2021. (ECF No. 32).
At the June 17, 2021 video status conference, Plaintiff had not yet obtained new counsel, and the undersigned permitted Plaintiff until July 30, 2021, to obtain new counsel or decide if he would like to proceed with the litigation. (ECF No. 33). Having not heard from Plaintiff by September 1, 2021, the undersigned entered a rule to show cause on Plaintiff as to why this case should not be dismissed. (ECF No. 38). On October 4, 2021, Plaintiff filed a motion to extend time to find representation, stating that he had been ill with Covid-19 and needed more time to find counsel. (ECF No. 39). The undersigned scheduled a video status conference for November 9, 2021. (ECF No. 40).
Plaintiff appeared at that video status conference and requested an additional week for his attorney to enter an appearance. (ECF No. 41). The undersigned extended the deadline to complete ADR to January 28, 2022, ordered that fact discovery was to be completed by January 14, 2022, and stated that no further extensions would be permitted. (ECF No. 42). At Defendant's request, and due to Plaintiff's failing to respond to discovery, this Court scheduled a video status conference on January 11, 2022. (ECF No. 43). The morning of that video status conference, Plaintiff informed the undersigned that he was once again battling Covid-19; thus, the video status conference was rescheduled to January 25, 2022. (ECF NO. 44). Plaintiff contacted the undersigned via email and once again requested a continuance, and the video status conference was rescheduled to January 31, 2022. (ECF No. 45).
On January 31, 2022, Plaintiff failed to appear at the video status conference, and the undersigned entered a rule to show cause as to why this case should not be dismissed for Plaintiff's failing to prosecute. (ECF No. 46, 47). A show cause hearing was scheduled for February 16, 2022. (ECF No. 47). Plaintiff failed to appear or otherwise contact the undersigned for that hearing.
b. Discussion
The United States Court of Appeals for the Third Circuit has delineated a six-factor test to guide a district court's determination of whether the involuntary dismissal of a case is appropriate. See Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984). The court must take into consideration: 1. the extent of the party's personal responsibility; 2. prejudice to the adversary; 3. the history of the party's dilatoriness; 4. whether the attorney's conduct was willful or in bad faith; 5. alternative sanctions; and 6. whether the claim is meritorious. Id. at 868-870. All six factors need not be met to warrant dismissal. Hicks v. Fenney, 850 F.2d 152 (3d Cir. 1988).
The instant action should be dismissed. As detailed supra, Plaintiff has been given ample opportunity to retain new counsel or proceed pro se with this litigation. Plaintiff, proceeding pro se, bears all responsibility for failing to appear at the last scheduled video conference and the video show cause hearing, despite being informed that his failure to appear may result in dismissal.Moreover, Plaintiff bears all responsibility for failing to respond to Defendant's reasonable discovery requests.
In addition to speaking to Plaintiff on the phone, the undersigned's courtroom deputy was regularly in touch with Plaintiff via email, and sent to notice to him of these video status conferences using the email address he used to correspond with the Court.
While the action may state meritorious claims, and the undersigned makes no determination as to the validity of Plaintiff's claims, it is impossible for the court to proceed with an action involving an unresponsive pro se plaintiff. Alternative sanctions for failing to prosecute, such as monetary sanctions or a finding of contempt, are unsuitable here as plaintiff is proceeding pro se and to impose such sanctions would not be in the interests of justice. See Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002) (affirming the District Court's dismissing Emerson's case for failure to prosecute where “Emerson was afforded a stay and numerous extensions of time. He was given the opportunity to substantiate that he was unable to proceed for medical reasons and he failed to do so. Given his behavior over the more than two years that the case was pending, the District Court had no indication that Emerson would prosecute his case as opposed to seek additional stays.”).
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the instant action be dismissed for Plaintiff's failure to prosecute.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by March 7, 2022, and Defendants are allowed until March 4, 2022, to file objections. Failure to timely file objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their objections and any response to the initial objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.
W. Scott Hardy United States District Judge