Opinion
Civil Action 3:22-CV-00523
11-03-2022
AMIDAH MACK, et al., Plaintiffs, v. TRAVELERS PERSONAL INSURANCE COMPANY, et al., Defendants.
MARIANI, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK Chief United States Magistrate Judge.
Before the Court is a complaint filed by Plaintiffs Amidah Mack and Aretha Mack (“Plaintiffs”) against Defendants Travelers Personal Insurance Company (“Travelers”) and GEICO Insurance Agency, Inc. (“GEIGO”) (collectively, “Defendants”) in the Court of Common Pleas of Wayne County, Pennsylvania, on January 19, 2022. (Doc. 1-2). In addition, before the Court is a motion to dismiss filed by GEIGO on April 20, 2022. (Doc. 5). For the reasons provided herein, it is respectfully recommended that GEICO's motions to dismiss be granted and Plaintiffs' complaint be dismissed. (Doc. 1-2; Doc. 5; Doc. 21; Doc. 24).
I. Background and Procedural History
On January 19, 2022, Plaintiffs initiated the above-captioned action by filing a complaint against Defendants in the Court of Common Pleas of Wayne County, Pennsylvania. (Doc. 1-2). The events giving rise to the complaint pertain to an insurance policy (the “Policy”) issued by Travelers to Plaintiffs for their residential property located at 1133 Upper Seese Hill Road, Canadensis, Pennsylvania (the “Property”). (Doc. 1-2, ¶¶ 1, 56; Doc. 1-2, at 9-72). On or about February 2, 2021, the Property allegedly sustained water damage and Plaintiffs reported the loss to Travelers. (Doc. 1-2, ¶¶ 7-8). On February 15, 2021, Travelers issued a correspondence to Plaintiffs stating:
[Travelers] has been unable to determine whether your claim is covered under your policy based on the information available to us at this time. The purpose of this letter is to let you know that the company reserves its rights under the policy and law, including the right to deny all or part of your claim that is not covered.
On 02/02/2021, you reported that your home sustained damages in the plumbing system as a result of frozen pipes with resultant water damages throughout the home. Our research is ongoing to determine whether coverage is provided by your policy by confirming the reasonable means to maintain heat in the home.(Doc. 1-2, ¶ 9, at 74).
On July 16, 2021, Travelers issued a second correspondence to Plaintiffs denying their insurance claim and stating that “after researching this claim, [Travelers] determined that your policy does not cover water damage due to frozen pipes because heat was not properly maintained and the property was vacant from the time of closing until the time of loss.” (Doc. 1-2, ¶ 11, at 78). On May 3, 2021, Travelers affirmed its denial of Plaintiffs' insurance claim. (Doc. 1-2, at 80-81).
On April 11, 2022, Travelers removed this action to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1332, 28 U.S.C. § 1441, and 28 U.S.C. § 1446. (Doc. 1). On April 18, 2022, Travelers filed its answer to the complaint. (Doc. 4). On April 20, 2022, GEICO filed a motion to dismiss Plaintiffs' claims against it, as well as a brief in support. (Doc. 5; Doc. 6). On May 26, 2022, during a status conference with the Court, counsel for Plaintiffs indicated that he would be withdrawing as counsel and Plaintiffs would be finding new counsel. (Doc. 10). On June 29, 2022, the Court issued an Order directing Plaintiffs to file a brief in opposition to the motion to dismiss in accordance with Local Rule 7.6. (Doc. 13). On July 6, 2022, counsel for Plaintiffs filed a motion to withdraw as counsel as the matter was transferred to federal court where counsel does not practice, which the Court granted on August 1, 2022. (Doc. 14; Doc. 16). In addition, the Court directed Plaintiffs to obtain new counsel, or, alternatively, advise the Court of their intention to proceed in a pro se status, and directed Plaintiffs to file a brief in opposition to GEICO's motion to dismiss on or before September 7, 2022. (Doc. 16).
GEICO's motion is filed as a motion to dismiss and, in the alternative, motion for more definite statement. (Doc. 5). For the reasons set forth herein, the undersigned recommends that the Court grant GEICO's motions to dismiss upon consideration of the merits and dismiss the complaint for failure to prosecute. Therefore, the undersigned recommends that the motion for more definite statement be DENIED as MOOT. (Doc. 5).
On August 23, 2022, Travelers filed a letter with the Court requesting a pre-motion conference as Travelers planned to file a motion to compel Plaintiffs' responses to discovery. (Doc. 17). On August 30, 2022, the Court held a telephone status conference, which Plaintiffs failed to attend. (Doc. 20). On September 14, 2022, GEICO filed a motion to dismiss requesting that the Court dismiss Plaintiffs' claims against it for the reasons stated in the first motion to dismiss and supporting brief. (Doc. 21). On September 14, 2022, Travelers filed a letter with the Court requesting that the Court issue an Order to Show Cause to dismiss for lack of prosecution. (Doc. 22). On September 21, 2022, the Court issued an Order directing Plaintiffs to show cause, on or before October 3, 2022, as to why they have failed to respond to GEICO's motion to dismiss, respond to discovery, or otherwise participate in this litigation addition, the Court noted that unless good cause is shown, this action may be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. (Doc. 23). On October 6, 2022, GEICO filed a motion to grant GEICO's motion to dismiss requesting that the Court dismiss Plaintiffs' claims against it for the reasons set forth in the first motion to dismiss and supporting brief. (Doc. 24). On October 26, 2022, Travelers filed a letter with the Court requesting that the Court dismiss the complaint for failure to prosecute, and GEICO filed a letter with the Court requesting that the Court address its pending motion to dismiss. (Doc. 25; Doc. 26). As of the date of this report and recommendation, Plaintiffs have not responded to GEICO's motions to dismiss or otherwise responded to the Court's Orders.
II. Legal Standards
A. Motion to Dismiss
GEICO seeks to dismiss Plaintiffs' complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 5; Doc. 6). 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). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). in deciding a Rule 12(b)(6) motion, the 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).
After recognizing the required elements which make up the legal claim, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” BellAtlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[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. Thus, courts “need not credit a complaint's ‘bald assertions' or ‘legal conclusions...'” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting Inre Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). The court also need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. St. Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in the complaint, and any 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). This “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). The plausibility determination is context-specific and does not impose a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
With the aforementioned standard in mind, a document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully 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, 520-21 (1972). Nonetheless, pro se plaintiffs are still subject to the basis pleading requirements of Rule 8. Rhett v. N.J. St. Super. Ct., 260 Fed.Appx. 513, 515 (3d Cir. 2008). The Third Circuit has further instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview St. Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
B. Failure to Prosecute
Federal Rule of Civil Procedure 41(b) provides that an action may be involuntarily dismissed “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Further, the rule permits sua sponte dismissals by the court. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Hewlett v. Davis, 844 F.2d 109, 114 (3d Cir. 1988) (same). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an inherent power, governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link, 370 U.S. at 630-31; see also Mindek v. Rigatti, 964 F.2d 1369 (3d Cir. 1992). Specifically, a plaintiff's failure to comply with a court order constitutes a failure to prosecute her action, and therefore her action is subject to dismissal pursuant to Fed.R.Civ.P. 41(b). A court's decision to dismiss for failure to prosecute is committed to the court's sound discretion and will not be disturbed absent an abuse of discretion. See Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). In evaluating whether an action should be dismissed for failure to prosecute, a court must balance six 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 . . . 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 & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).
The Poulis factors are not “a magic formula whereby the decision to dismiss or not to dismiss a plaintiff's complaint becomes a mechanical calculation ....” Mindek, 964 F.2d at 1373. No one factor is determinative and not all of the Poulis factors must be met to warrant dismissal. Mindek, 964 F.2d at 1373; Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Instead, the decision must be made in the context of the court's extended contact with the litigant. Dismissal for failure to prosecute is appropriately labeled a “drastic sanction,” however, because it is “deemed to be an adjudication on the merits, barring any further action between the parties.” Sebrell ex rel. Sebrell v. Phila. Police Dep't, 159 Fed.Appx. 371, 373 (3d Cir. 2005) (not precedential) (citing Landon v. Hunt, 977 F.2d 829, 833 (3d Cir. 1992); Fed.R.Civ.P. 41(b)). In light of this framework, the Court finds that a careful assessment of the Poulis factors in the case at bar weighs heavily in favor of dismissing this action.
III. Discussion
A. GEICO'S MOTION TO DISMISS SHOULD BE DEEMED UNOPPOSED AND GRANTED.
In GEICO's motions to dismiss, GEICO argues that Plaintiffs have failed to state a cause of action upon which relief may be granted because GEICO “has no legally cognizable liability exposure to the Plaintiffs on the issues presented under the facts and circumstances alleged in this case in which the Plaintiff[s are] seeking to have the insurance carrier that issued the insurance policy at issue, that is [Travelers], provide coverage.” (Doc. 6, at 4-5).
At the onset, under the Local Rules of the Middle District, Plaintiffs should be deemed to concur in GEICO's motion to dismiss as they have failed to timely oppose the motions, or otherwise litigate this case. (Doc. 5; Doc. 21; Doc. 24). This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of this Court warrants dismissal of the action, since Local Rule 7.6 imposes an affirmative duty on Plaintiffs to respond to motions and provides that:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.Local Rule 7.6 (emphasis added).
It is now well-settled 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.'” Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug. 26, 2010) (quoting Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)). In this case, Plaintiffs have not complied with the local rules, or the Court's Orders, by filing a timely response to GEICO's motions to dismiss. (Doc. 13; Doc. 16; Doc. 23).
Failure to enforce compliance with the Local Rules, and impose the sanctions mandated by those rules when the rules are repeatedly breached, “would actually violate the dual mandate which guides this Court and motivates our system of justice: ‘that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion.'” Lease, 712 F.Supp.2d at 371. Therefore, the Court is obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules. SeeRichard v. Fin. of Am. Mortg., LLC, No. 3:18-CV-559, 2019 WL 5862020, at *3 (M.D. Pa. Aug. 9, 2019). In this case, Plaintiffs have failed to comply with Local Rule 7.6 by filing a timely response to the motions to dismiss. This failure now compels the undersigned to apply the sanction called for under Local Rule 7.6 and deem Plaintiffs to not oppose GEICO's motions. (Doc. 5; Doc. 21; Doc. 24).
Upon consideration of the complaint and the exhibits attached thereto, the undersigned finds that Plaintiff have failed to state a claim upon which relief may be granted against Defendant GEICO. In the complaint, as to GEICO, Plaintiffs merely states that “Defendant GEICO Insurance Company partners with Defendant Travelers Personal Insurance Company to provide insurance to Plaintiff[s].” (Doc. 1-2, ¶ 4). Plaintiffs allege that “[a]t all times relevant hereto, Plaintiff[s] had an Insurance Policy with Defendants.” (Doc. 1-2, ¶ 5). As relief, Plaintiffs request declaratory judgment “[d]eclaring that Plaintiff[s are] covered by the Defendants' Insurance Policy for the total amount of the damage to the home,” and “[d]eclaring that the Defendants must pay the coverage limits for the entirety of the damage to the home.” (Doc. 1-2, at 6). Plaintiffs attach as Exhibit A to the complaint a copy of the alleged Policy. (Doc. 1-2, at 9-72).
While this is a breach of contract claim involving alleged non-performance of a contractual duty, the crux of the dispute is one of contract interpretation, as a resolution of the issues presented requires an examination of the terms of the Policy. Under Pennsylvania law, “the interpretation of the scope of coverage of an insurance contract is a question of law properly decided by the court.” Med. Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999). The Supreme Court of Pennsylvania has instructed that “[w]here a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.” Standard Venetian Blind Co. v. Am. Empire Ins. Co., 469 A.2d 563, 566 (1983) (citations omitted). “In interpreting an insurance policy, a court must ascertain the intent of the parties as manifested by the language of the written agreement.” Stevens Painton Corp. v. First State Ins. Co., 746 A.2d 649, 657 (Pa. Super. Ct. 2000). Moreover, “[c]ourts interpret coverage clauses broadly ‘to afford the greatest possible protection to the insured,' and, accordingly, they interpret exceptions to an insurer's general liability narrowly against the insurer.” Verticalnet, Inc. v. U.S. Specialty Ins. Co., 492 F.Supp.2d 452, 456 (E.D. Pa. 2007) (quoting Westport Ins. Corp. v. Bayer, 284 F.3d 489, 498 n.7 (3d Cir. 2002)). The “insurance policy must be read as a whole and construed according to the plain meaning of its terms.” C.H. Heist Caribe Corp. v. Am. Home Assurance Co., 640 F.2d 479, 481 (3d Cir. 1981). Furthermore, the court must enforce the plain language of the policy if its terms are clear and unambiguous. Standard Venetian Blind, 469 A.2d at 566 (citation omitted).
In this case, a review of the plain language of the Policy confirms that the Policy was issued by Travelers, not GEICO. (Doc. 1-2, at 10). GEICO is only listed as the insurance agency related to Plaintiffs' securing of the Policy. (Doc. 1-2, at 10). Notably, Travelers admit in its answer to the complaint that Travelers, not GEICO, issued the Policy at issue to Plaintiffs. (Doc. 4, ¶ 5). Furthermore, there is no allegation in the complaint that Plaintiffs reported the water damage loss to GEICO and the record is devoid of any evidence to suggest that GEICO issued any liability coverage or policy to Plaintiffs relevant to this action. Therefore, there is no evidence in the record to suggest that GEICO owes Plaintiffs insurance coverage regarding the alleged water damage to the Property. Lastly, the undersigned finds that by attaching a copy of the Policy that lists GEICO as the agent and Travelers as the insurer, Plaintiffs admit that it was disclosed that Travelers was the insurer and GEICO was the agent. (Doc. 1-2, at 9-71). As such, GEICO cannot be liable on the Policy under the applicable of Pennsylvania agency law. See Revere Press v. Blumberg, 246 A.2d 407, 410 (Pa. 1968) (“an authorized agent for a disclosed principal is not liable on a contract between the principal and a third party unless the agent agrees with the third party to be liable.”). As Plaintiffs have not alleged any other theory of liability against GEICO in the complaint, the undersigned finds that Plaintiffs have failed to state a cause of action upon which relief may be granted against GEICO.
Accordingly, it is recommended that GEICO's motions to dismiss be granted and Plaintiffs' claims against GEICO be dismissed with prejudice. (Doc. 5; Doc. 21; Doc. 24).
B. The complaint should be dismissed for failure to prosecute.
By failing to respond to GEICO's motions, respond to discovery, or otherwise respond to the Court's Orders, it appears that Plaintiffs have abandoned this action. Plaintiffs' failure to comply with the Court's Orders “makes adjudication of the case impossible.” See Azubuko v. Bell Nat'l Org., 243 Fed.Appx. 728, 729 (3d Cir. 2007); see also Pruden v. SCI Camp Hill, 252 Fed.Appx. 436, 438 (3d Cir. 2007) (upholding the dismissal of a pro se plaintiff's complaint with prejudice for failure to amend his complaint); Figueroa v. U.S., No. 1:13-cv-230, 2013 WL 4813369, at *2, *7 (M.D. Pa. Sept. 9, 2013) (dismissing a pro se plaintiff's complaint for failure to maintain an address with the court). Thus, it is recommended that the Court dismiss this action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
1. Plaintiff's Personal Responsibility
Looking to the Poulis factors, the Court finds that a consideration of the first factor, the extent of the party's personal responsibility, shows that the delays in this case are entirely attributable to Plaintiffs. As noted supra, the Court granted counsel for Plaintiffs' motion to withdraw as counsel on August 1, 2022, and directed Plaintiffs to either obtain new counsel, or, alternatively, advise the Court of their intention to proceed in a pro se status. (Doc. 16). As of the date of this recommendation, Plaintiffs have not responded to any of the Court's Orders and new counsel has not entered an appearance on their behalf. Therefore, because Plaintiffs are now proceeding as pro se litigants, they are solely responsible for prosecuting this action. See Hoxworth v. Blinder Robinson & Co., 980 F.2d 912, 920 (3d Cir. 1992). “As a general rule, a pro se litigant is responsible for h[er] failure to comply with court orders.” Lopez v. Cousins, 435 Fed.Appx. 113, 116 (3d Cir. 2011) (not precedential); see also Emerson, 296 F.3d at 191; Winston v. Lindsey, Civ. No. 09-224, 2011 WL 6000991, at *2 (W.D. Pa. Nov. 30, 2011) (concluding that a pro se litigant “bears all of the responsibility for any failure to prosecute his claims”).
Plaintiffs have failed to abide by Court Orders and neglected to litigate this case. Specifically, Plaintiffs failed to file briefs in opposition to GEICO's motions to dismiss despite being directed to do so by the Court on multiple occasions. (Doc. 13; Doc. 16; Doc. 23). Additionally, Plaintiffs were specifically warned that their failure to respond to the Court's Orders may result in the dismissal of this action. (Doc. 23). As of the date of this recommendation, Plaintiffs have failed to comply with either directive. Accordingly, the first Poulis factor weighs in favor of dismissal.
2. Prejudice to the Moving Party
As for the second Poulis factor, a finding of prejudice does not require “irremediable harm.” Adams v. Trs. of N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 873-74 (3d Cir. 1994). Rather, “the burden imposed by impeding a party's ability to [effectively prepare] a full and complete trial strategy is sufficiently prejudicial.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003). Here, the Court finds that Plaintiffs' failure to respond to the Court's Orders has frustrated and delayed resolution of this action. Going forward, such failure to litigate would prejudice Defendants, who without timely responses by Plaintiffs could not seek a timely resolution of the case. Accordingly, the Court finds that the second Poulis factor weighs in favor of dismissal.
3. History of Dilatoriness
“Extensive 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, 29 F.3d at 874; see alsoEmerson, 296 F.3d at 191 (per curium) (finding a history of dilatory conduct where the plaintiff repeatedly requested stays and failed to comply with court-mandated deadlines). Conversely, “conduct that occurs one or two times is insufficient to demonstrate a history of dilatoriness.” Briscoe v. Klaus, 538 F.3d 252, 261 (3d Cir. 2008) (citation omitted). In deciding whether a history of dilatory conduct exists, this Court must evaluate “a party's problematic acts . . . in light of its behavior over the life of the case.” Adams, 29 F.3d at 875. Here, Plaintiffs have not only failed to file briefs in opposition to GEICO's motions to dismiss or respond to the Court's Orders, but the time to do so has passed. (Doc. 13; Doc. 16; Doc. 23). Plaintiffs have not communicated with the Court since counsel for Plaintiffs filed a motion to withdraw as counsel, notifying the Court that he had discussion with Plaintiffs regarding retaining an attorney familiar with Federal procedure. (Doc. 14, at 2). Moreover, Plaintiffs have failed to obtain new counsel, or, alternatively, advise the Court of their intention to proceed in a pro se status. (Doc. 16). Accordingly, Plaintiffs' actions demonstrate a history of dilatoriness that weighs in favor of dismissal.
4. Willful Conduct or Bad Faith
The fourth Poulis factor requires the Court to consider whether Plaintiffs' conduct reflects mere inadvertence or negligence, as opposed to “strategic,” “intentional or self-serving behavior.” Adams, 29 F.3d at 875-76. “Under this factor, the District Court must consider whether the conduct was the type of willful or contumacious behavior which [can be] characterized as flagrant bad faith.” Briscoe, 538 F.3d at 262 (quotation omitted). Here, Plaintiffs' failure to abide by multiple Orders by the Court and failure to file briefs in opposition to GEICO's motions to dismiss “demonstrate[s] a willful disregard for procedural rules and court directives.” Gilyard v. Dauphin Cty. Work Release, No. 10-1657, 2010 WL 5060236, at *2 (M.D. Pa. Dec. 6, 2010). Thus, the fourth Poulis factor weighs in favor of dismissal.
5. Availability of Alternative Sanctions
The fifth Poulis factor examines the effectiveness of sanctions other than dismissal. 747 F.2d at 868. Generally, “sanctions less than dismissal [are] ineffective when a litigant, such as [Plaintiffs], is proceeding pro se.” SeeLopez, 435 F. App' x at 116; Emerson, 296 F.3d at 191 (per curium); Nowland v. Lucas, No. 1:10-CV-1863, 2012 WL 10559, at *6 (M.D. Pa. Jan. 3, 2012) (“This case presents such a situation where the plaintiff's status as a pro se litigant severely limits the ability of the court to utilize lesser sanctions to ensure that this litigation progresses in an orderly fashion.”). The Court has endeavored to use lesser sanctions by entering prior Orders and counseling Plaintiffs on their obligations in this action, to no avail. Accordingly, the fifth Poulis factor weighs in favor of dismissal.
6. Meritoriousness of Plaintiff's Claims
The final Poulis factor enjoins the Court to consider the meritoriousness of Plaintiffs' claims. 747 F.2d at 868. A claim is deemed meritorious when “the allegations of the pleadings, if established at trial, would support recovery by plaintiff ....” Poulis, 747 F.2d at 870. “Generally, in determining whether a plaintiff's claim is meritorious, [courts] use the standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Briscoe, 538 F.3d at 263 (citing Poulis, 747 F.2d at 869-70). In the complaint, Plaintiffs request declaratory judgment against Defendants for failure to provide insurance coverage under the Policy. (Doc. 1-2). As discussed supra, the undersigned finds that Plaintiffs have failed to state a claim upon which relief may be granted against Defendant GEICO and that all claims against GEICO should be dismissed with prejudice. Regarding Travelers, the undersigned finds that consideration of the meritoriousness of Plaintiffs' claims cannot save the complaint from dismissal because Plaintiffs are now wholly non-compliance with their obligations as litigants. Still, the Court cannot determine whether Plaintiffs would be unable to establish the contested facts at trial. As such, this factor weighs against dismissal.
7. Balancing the Poulis factors
To reiterate, when weighing the Poulis factors, there is no “magic formula” or “mechanical calculation” that automatically warrants dismissal for failure to prosecute. Briscoe, 538 F.3d at 263. Quite the contrary, the Court is guided by the Third Circuit's warning that “no single Poulis factor is dispositive,” and that “not all of the Poulis factors need be satisfied in order to dismiss a complaint.” Ware, 322 F.3d at 222; Mindek, 964 F.2d at 1373. Here, on balance, the Poulis factors weigh heavily in favor of dismissal of this action for lack of prosecution. As it is apparent to the Court that Plaintiffs have made no effort to prosecute this case as evidenced by their failure to file briefs in opposition to GEICO's motions to dismiss or respond to the Court's Orders, it is recommended that Plaintiffs' complaint be dismissed for failure to prosecute.
IV. Recommendation
Based on the foregoing, it is respectfully recommended that:
1. GEICO's motions to dismiss (Doc. 5; Doc. 21; Doc. 24) be GRANTED and Plaintiffs' claims against GEICO be DISMISSED WITH PREJUDICE;
2. GEICO's motion for more definite statement (Doc. 5) be DENIED as MooT;
3. Plaintiffs complaint (Doc. 1-2) be DISMISSED for failure to prosecute; and
4. 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 November 3, 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.