Opinion
Civil Action 19-1374
11-05-2020
RICHARD A. NESMITH, Plaintiff, v. STONER LAW OFFICE LLC, CRAIG E. WYNN, and ED KELLER, Defendants.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Complaint filed in the above-captioned action be dismissed for failure to prosecute.
II. REPORT
Plaintiff Richard A. Nesmith (“Plaintiff”) initiated this pro se action on October 24, 2019 by filing a Motion for Leave to Proceed in forma pauperis. ECF No. 1. The Court granted Plaintiff's Motion, and his Complaint was filed on October 29, 2019. ECF Nos. 2 and 3.
On February 21, 2020, Plaintiff submitted correspondence to the Court indicating that Plaintiff has been unable to pursue this case due to “surgery, chronic illness and continuing cancer treatment, ” and he requested that the Court “continue this case.” ECF No. 4.
The Court construed Plaintiff's correspondence as a Motion to Stay the Case and granted the Motion on February 25, 2020. ECF No. 5. In its Order, the Court directed Plaintiff to file a notice with the Clerk of Court when he is fully able to pursue this matter. Id. Since that time, the Court has not received notice of Plaintiff's ability to pursue this action.
On September 9, 2020, the Court issued an Order “requesting that Plaintiff Richard Nesmith notify the Court on or before October 1, 2020 whether he wishes to have the stay lifted or have the case remain closed for the reasons set forth in his prior correspondence to the Court at ECF No. 4.” ECF No. 6. Plaintiff did not respond.
The Court issued an Order to Show Cause on October 7, 2020, requiring Plaintiff to show good cause in writing why this action should not be dismissed for failure to prosecute. ECF No. 7 at 2. The Court notified Plaintiff that he was required to respond on or before November 1, 2020, and that “failure to respond to this Order to Show Cause may result in the dismissal of this action.” Id. To date, Plaintiff has failed to respond or provide any other indication that he wishes to proceed with this action.
It is clear that the punitive dismissal of an action for failure to comply with court orders is left to the discretion of the court. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). In determining whether an action should be dismissed as a sanction against a party the court must consider six factors. These factors, as set forth in Poulis v. State Farm Fire and Casualty Company, 747 F.2d 863, 868 (3d Cir. 1984), are as follows:
(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.
(6) The meritoriousness of the claim or defense.
Upon consideration of the Poulis factors, the Court should dismiss Plaintiff's claims. First, as a pro se litigant, plaintiff is solely responsible for prosecuting his claim. Second, this action was filed over a year ago, but no activity has occurred following the filing of Plaintiff's Complaint and notice of his inability to pursue his claims. Plaintiff has not updated the Court as requested. Plaintiff's failure to prosecute this action may prejudice Defendants by delaying their ability to timely investigate and resolve Plaintiff's claims.
With respect to the third and fourth factors, Plaintiff has a history of dilatoriness in failing to respond to the Court's September 9, 2020 and October 7, 2020 Orders. Plaintiff's failure to respond to the Court's Order was his personal responsibility.
The sixth factor, the merits of the claim, should be weighed neither in favor nor against Plaintiff, as it is too early in the litigation to assess the merits of Plaintiff's claims. Nevertheless, “[n]ot all of these factors need be met for a district court to find dismissal is warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988).
The final factor to consider is the effectiveness of sanctions other than dismissal. Because Plaintiff is proceeding in forma pauperis, it does not appear that monetary sanctions are appropriate. Moreover, Plaintiff's failure to respond to the Court's Orders suggest that Plaintiff has no interest in currently prosecuting this action. For these reasons, dismissal is the most appropriate sanction.
For the reasons set forth herein, it is respectfully recommended that the instant action be dismissed for failure to prosecute.
In accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(B) & (C), and Local Rule 72.D.2, Plaintiff is permitted to file written objections and responses thereto in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will constitute a waiver of any appellate rights. Siers v. Morrash, 700 F.3d 113, 116 (3d Cir. 1983). See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.