Opinion
CIVIL 1:20-cv-02455
06-09-2021
CHANDEL RICHARD HOFFMAN, Plaintiff, v. M&T BANK CORPORATION, et al., Defendants.
REPORT AND RECOMMENDATION
Susan E. Schwab, United States Magistrate Judge
I. Introduction.
The plaintiff, Chandel Richard Hoffman (“Hoffman”), filed a complaint against the defendants, M&T Bank Corporation, Camping World Holdings, Inc., and Camping World of Harrisburg. Throughout this case, we instructed Hoffman to effect service of process on the defendants in accordance with Federal Rule of Civil Procedure 4. Because Hoffman has failed to serve the defendants with process or to comply with our order, it appears that he has abandoned this action. Accordingly, after analyzing the applicable factors, we recommend that the case be dismissed.
II. Background and Procedural History.
Hoffman, proceeding pro se, began this action on October 27, 2020, by filing a complaint against the defendants, M&T Bank Corporation, Camping World Holdings, Inc., and Camping World of Harrisburg. Doc. 1 at 1. Per Hoffman, in August of 2020, Hoffman purchased an RV from Camping World of Harrisburg. Id. at 5. Prior to receiving the RV, Hoffman attempted to rescind the contract and requested his deposit be returned by M&T Bank. Id. Hoffman alleges the transaction still appears on his credit report, which negatively impacts his purchasing power. Id. Hoffman filed the complaint in the United States District Court for the District of South Carolina. Id. at 1. Pursuant to 28 U.S.C. § 1406(a), the case was transferred to the United States District Court for the Middle District of Pennsylvania on December 20, 2020. Doc. 6 at 2; see also doc. 10. On January 11, 2021, we ordered Hoffman to serve the summons and his complaint on the defendants in accordance with Fed.R.Civ.P. 4(d). Doc. 14. Hoffman failed to serve process in accordance with our order or Fed.R.Civ.P. 4. Doc. 15. Accordingly, on April 12, 2021, we ordered Hoffman to show cause on or before April 23, 2021, as to why his case should not be dismissed for failing to serve the defendants and failure to comply with court orders. Id. Hoffman has failed to serve the defendants or respond to our order, and the time to do so has long since passed.
III. Discussion.
By failing to effect service on the defendants or to respond to our order to show cause, it appears that Hoffman has abandoned this action. Thus, we recommend that the court dismiss this action pursuant to Fed.R.Civ.P. 41(b).
The court may dismiss an action under Fed.R.Civ.P. 41(b) if the plaintiff fails to prosecute a case or to comply with court rules or court orders. Even though dismissal is an available sanction, it is a drastic sanction that “should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff.” Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir. 1982). In other words, “cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.” Hildebrand v. Allegheny Cnty., 923 F.3d 128, 132 (3d Cir. 2019).
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 Coll., 296 F.3d 184, 190 (3d Cir. 2002). But that discretion, while broad, is governed by the following factors, commonly referred to as the Poulis factors, which the court must balance in deciding whether to dismiss a case:
(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). No. single factor is dispositive, Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008), and each factor need not be satisfied for the court to dismiss an action, Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). In this case, an assessment of the Poulis factors weighs in favor of dismissing this action.
The first Poulis factor is the extent of the party's personal responsibility. A pro se litigant is personally responsible for failure to comply with the court's rules and orders, including serving the summons and complaint on the defendants. In this case, because Hoffman is proceeding pro se, he is responsible for his failure to respond to the show cause order and his failure serve the defendants.
The second Poulis factor is prejudice to the adversary. Examples of prejudice are “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.” Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984). Prejudice for purposes of the Poulis analysis, however, does not mean irremediable harm. Ware, 322 F.3d at 222. “[T]he burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy is sufficiently prejudicial.” Id. In this case, Hoffman's failure to serve the summons and the complaint deprives the defendants from receiving adequate notice of the lawsuit and hinders them from defending against the allegations. Hoffman's failure to serve the defendants frustrates and delays resolution of this action. The defendants are prejudiced by Hoffman's continued lack of service because they have not been notified of the impending lawsuit against them and have been inhibited from preparing a trial strategy or defense.
The third Poulis factor is a history of dilatoriness. While “conduct that occurs one or two times is insufficient to demonstrate a ‘history of dilatoriness, '” Briscoe, 538 F.3d at 261, “[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response to interrogatories, or consistent tardiness in complying with court orders.” Adams v. Trs. of N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 874 (3d Cir. 1994). A “party's problematic acts must be evaluated in light of [his] behavior over the life of the case.” Id. at 875. In this case, Hoffman has failed to respond to our order to show cause, the time to do so has passed, and he has not served process on the defendants. Thus, Hoffman has a history of dilatoriness.
The fourth Poulis factor is whether the conduct was willful or in bad faith. “Willfulness involves intentional or self-serving behavior.” Adams, 29 F.3d at 875. Here, Hoffman's failure to respond to our order to show cause and his failure to serve the defendants leads to an inference that he has willfully abandoned this case.
The fifth Poulis factor is the effectiveness of alternate sanctions. Dismissal is a sanction of last resort, and it is incumbent upon a court to explore the effectiveness of lesser sanctions before ordering dismissal. Poulis, 747 F.2d at 868. Hoffman, filing pro se, alleges the transaction with the defendants caused him financial hardship. Doc. 1 at 5. Therefore, monetary sanctions would not be effective in this case. Moreover, Hoffman's failure to respond to our order to show cause leads to an inference that further orders to him would not be effective. In this case, no sanction short of dismissal would be effective.
The sixth and final Poulis factor is the meritoriousness of the claim. In this inquiry, a claim will be deemed meritorious when the allegations of the complaint, if established at trial, would support recovery. Poulis, 747 F.2d at 870. Here, assuming for the sake of argument that Hoffman's claim has merit, consideration of this factor cannot save his case, since he is now wholly noncompliant with his obligations as a litigant.
In sum, the Poulis factors weigh heavily in favor of dismissal. Hoffman has abandoned this case. Thus, we will recommend that the court dismiss the case.
IV. Recommendations.
Accordingly, for the foregoing reasons, we RECOMMEND that the court DISMISS this action in accordance with Fed.R.Civ.P. 41(b).
The Parties are further placed on notice that pursuant to Local Rule 72.3:
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.