Opinion
Civil 3:18-CV-01190
06-14-2023
CHRIS ALBERT RIBAUDO, Plaintiff, v. OFFICER SAMUEL DESIMONE, Defendant.
Mariani Judge.
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge.
I. Introduction.
Plaintiff Chris Albert Ribaudo contends that the defendant, Samuel DeSimone, a police officer with the Pittston City Police Department, violated his Fourth Amendment rights in in retaliation for Ribaudo being a witness in another civil case and in retaliation for Ribaudo refusing to plead guilty. Currently pending is DeSimone's motion for summary judgment. Ribaudo has not responded to that motion. Nor has he responded to orders to show cause issued by the court. And he has failed to sit for his deposition. After analyzing the applicable factors, we conclude that Ribaudo has failed to prosecute this action, and the case should be dismissed on that basis. In the alternative, we recommend that the court enter summary judgment on the merits in favor of DeSimone.
II. Background and Procedural History.
Ribaudo, who is proceeding pro se, began this action by filing a complaint naming Pittston City Police Officer DeSimone as the defendant. Ribaudo claims that DeSimone retaliated against him because he was a witness in Mawson v. DeSimone, 3:16-CV-00400 (M.D. Pa.), where he submitted an affidavit, and because he refused to plead guilty. He also claims that DeSimone violated the Fourth Amendment by entering his home and arresting him without a warrant. Ribaudo further claims that DeSimone falsified a criminal complaint against him.
The case was stayed from April 29, 2019, to February 1, 2022, while the state criminal proceedings against Ribaudo were pending. See docs. 33, 62. While the case was stayed, we ordered periodic status reports. After the copy sent to Ribaudo of one of the orders requiring such a status report was returned to the court as undeliverable, we ordered Ribaudo to show cause why this action should not be dismissed pursuant to Fed.R.Civ.P. 41(b) because he failed to keep the court informed of his address. See doc. 44. That show cause order was also returned to the court as undeliverable with a notation from the post office that read “FORWARD TIME EXP, RTN TO SEND.” See doc. 46. But under that notation by the post office, a new address was listed, and the Clerk of Court resent the show cause order to that address. See id. and doc. 46-docket annotation. Ribaudo then filed a response to the show cause order, and although he did not explain why he failed to alert the court to his change of address, given that we had his new address, we deemed the show cause order satisfied. See doc. 48.
After the stay was lifted, we directed DeSimone to file an answer to the complaint and we entered a case management order. See docs. 62, 63. DeSimone filed an answer. See doc. 64. After receiving a letter from defense counsel expressing concern about the course of discovery and stating that Ribaudo failed to appear for his scheduled deposition, on July 7, 2022, we issued an order directing Ribaudo to file a letter explaining why he failed to appear for his deposition. See docs. 66, 67. Although Ribaudo did not file a letter as ordered, he did appear at a previously scheduled telephone conference, during which he explained that he did not show up for his deposition because he was sick. But he had no explanation for why he did not call defense counsel and tell him that he was sick and could not appear for the deposition. The court explained to Ribaudo that he must sit for his deposition or he will be sanctioned. Ribaudo agreed to appear for his deposition on August 2, 2022. See doc. 69.
Ribaudo did not, however, appear for his deposition on August 2, 2022. See doc. 70 ¶ 8. Instead, his fiance called defense counsel on the morning of August 2, 2022, advising that Ribaudo had been exposed to someone who tested positive for COVID-19, and he was experiencing symptoms. Id. Thereafter, defense counsel moved to extend the case management deadlines so that Ribaudo's deposition could be conducted once he was no longer symptomatic. Id. ¶ 9. Ribaudo concurred in that motion for an extension of time. Id. ¶ 10.
Although we granted the motion extending the case management deadlines, see doc. 71, and defense counsel rescheduled Ribaudo's deposition for August 19, 2022, Ribaudo did not appear for his deposition on August 19, 2022, and defense counsel was unsuccessful in trying to contact Ribaudo. See doc. 75 ¶¶ 25-26.
Document 75 is DeSimone's statement of undisputed material facts in support of his motion for summary judgment, to which Ribaudo has not responded.
On October 3, 2022, DeSimone filed a motion for summary judgment, a statement of material facts, documents, and a brief in support of his motion for summary judgment. See docs. 74-76. In addition to seeking summary judgment on the merits of Ribaudo's claims, DeSimone pointed out that Ribaudo repeatedly failed to appear for his deposition, and he seeks dismissal on that basis as well. See doc. 76. We ordered Ribaudo to file, on or before October 24, 2022, a brief in opposition to the motion for summary judgment and a response to DeSimone's statement of material facts. See doc. 77. After he failed to do so, we ordered Ribaudo to show cause, on or before November 28, 2022, why this action should not be dismissed pursuant to Fed.R.Civ.P. 41(b) in that he has failed to prosecute this action. See doc. 78. We warned Ribaudo that if he fails to show cause, we may deem him to have abandoned this lawsuit, and we may recommend that this case be dismissed. Id. at 2.
Ribaudo did not show cause as ordered. But on December 20, 2022, he filed a document titled “Motion for Appointment of Counsel/or Proper Relief, Objection Responce [sic] to the Defendants Motion to Dismiss.” Doc. 80. The Clerk of Court docketed this document as both a motion for the appointment of counsel and as a brief in opposition to DeSimone's motion for summary judgment. By an Order dated January 20, 2023, we denied Ribaudo's motion for the appointment of counsel, and we ordered Ribaudo to properly respond, on or before February 10, 2023, to the pending summary judgment motion, explaining in detail how he must do so. See doc. 83. We also ordered DeSimone to inform the court how he wishes to proceed regarding Ribaudo's deposition. Id.
After both Ribaudo and DeSimone failed to comply with the Order, we directed them to file, on or before May 18, 2023, a joint report on the status of this case. See doc. 84. On May 10, 2023, DeSimone filed a status report stating that he tried to contact Ribaudo, but he has been unable to do so. See doc. 85. And after Ribaudo failed to file anything in response, we issued another order to show cause to Ribaudo ordering him to show cause, on or before June 2, 2023, why this action should not be dismissed pursuant to Fed.R.Civ.P. 41(b) in that he has failed to prosecute this action. We warned Ribaudo that if he fails to show cause, we may deem him to have abandoned this lawsuit, and we may recommend that this case be dismissed. Ribaudo failed to respond to this latest show cause order.
Accordingly, and after considering the relevant factors, we recommend that the court dismiss this action pursuant to Fed.R.Civ.P. 41(b). In the alternative, we recommend that the court grant summary judgment on the merits in favor of DeSimone.
III. Discussion.
A. Under the rules of this court, Ribaudo should be deemed not to oppose DeSimone's motion.
At the outset, under the Local Rules of this court, Ribaudo should be deemed not to oppose DeSimone's motion for summary judgment since he has failed to oppose that motion.
Local Rule 7.6 imposes an affirmative duty on a litigant to respond to motions and provides that “[a]ny party who fails to comply with this rule shall be deemed not to oppose such motion.” M.D. Pa. L.R. 7.6. At the time the case was filed, Ribaudo received a copy of the court's Standing Practice Order, which set forth his obligations with respect to responding to motions. See doc. 3.
In this case, Ribaudo has not complied with Local Rule 7.6. Nor has he shown cause, after being ordered to do so, why this case should not be dismissed. These procedural defaults compel us to consider:
[A] basic truth: we must remain mindful of the fact that “the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that
courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion. ...Lease v. Fishel, 712 F.Supp.2d 359, 371 (M.D. Pa. 2010) (quoting McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998)). With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the 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.'” Id. Therefore, we are 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.
Such basic principles of fairness apply here. In this case, Ribaudo failed to comply with Local Rule 7.6 by failing to file a brief in opposition to the pending motion for summary judgment. Nevertheless, Ribaudo's failure to file a brief in opposition alone is not sufficient for the court to dismiss the case. In Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991), the Third Circuit reversed a district court's dismissal based on the pro se plaintiff's failure to file a brief in accordance with a local rule of court. The Third Circuit stated that failure to obey the local rule should not form the basis for dismissal without an analysis of the merits of the case. Id. at 30. It noted that dismissal was not to be ruled out if the party was represented by an attorney and in fact did not oppose the motion. Id. It also noted: “Nor do we suggest that if a party fails to comply with the rule after a specific direction to comply from the court, the rule cannot be invoked. Thus, our holding is not broad.” Id. at 30.
Although this caveat from the Stackhouse case might suggest that we could grant the pending motion based on Ribaudo's failure to file a brief in opposition after being ordered show cause why the court should not dismiss the action, the Third Circuit has subsequently declined “to adopt an interpretation of Stackhouse under which a district court may dismiss a case solely because a plaintiff misses a briefing deadline set forth in a local rule or court-ordered briefing schedule.” Hernandez v. Palakovich, 293 Fed.Appx. 890, 895 (3d Cir. 2008). Rather, the Third Circuit has held that before dismissing a case as a sanction for failure to follow a court rule or court order, a court must consider the factors set forth in the seminal Poulis case. Id. at 894 (citing Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984)); see also Shuey v. Schwab, 350 Fed.Appx. 630, 633 (3d Cir. 2009) (“Poulis has been cited too often and is too deeply ingrained in the jurisprudence of this court and the district courts of this circuit for a court to assume that a party's failure to respond to a motion to dismiss can be regarded as an abandonment of the claim. Poulis governs the District Court's decision to dismiss the Shuey's claim, and it was error to dismiss without first considering the Poulis factors.”). Thus, we turn to a consideration of the Poulis factors.
B. Consideration of the Poulis factors warrants dismissal of this case.
Ribaudo has failed to prosecute 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 Cty., 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 College, 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, 747 F.2d at 868. “The court should consider all six factors but need not find all six to award sanctions.” United States v. Brace, 1 F.4th 137, 143 (3d Cir. 2021). And no single factor is dispositive. Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). In this case, an assessment of the Poulis factors leads us to conclude that this action should be dismissed.
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. In this case, because Ribaudo is proceeding pro se, he is responsible for his failure to litigate this case.
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, Ribaudo's failure to litigate this case and comply with court rules and orders frustrates and delays resolution of this action, and so, such failure to litigate can be seen to prejudice the defendant, who seek a timely resolution of the case.
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 Trust 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, Ribaudo has a history of dilatoriness. He failed to sit for his deposition, he failed to properly respond to the summary judgment motion, and he failed to respond to numerous orders of the court including the most recent show cause order. Thus, Ribaudo 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, Ribaudo was given numerous opportunities to sit for his deposition, but he failed to do so. And he failed to respond to the show cause order of the court even after he was warned that if he failed to show cause, we may deem him to have abandoned this action. These failures lead to an inference that Ribaudo 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. Ribaudo is proceeding pro se and in forma pauperis, and there is no evidence to support a reasonable inference that he would be able to pay monetary sanctions. Therefore, monetary sanctions, including attorney's fees and costs, would not be an effective sanction in this case. Moreover, Ribaudo's failure to prosecute this action even in the face of orders 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, Ribaudo's claims survived the pleading stage. Thus, we cannot say that those claims are without merit. But consideration of this factor cannot save Ribaudo's case since Ribaudo is now wholly noncompliant with his obligations as a litigant.
In sum, the Poulis factors weigh in favor of dismissal. Ribaudo has repeatedly failed to prosecute this case. Thus, we will recommend that the court dismiss the case pursuant to Fed.R.Civ.P. 41(b).
C. In the alternative, summary judgment should be entered on the merits in favor of DeSimone.
DeSimone moves for summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure, which provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Because Ribaudo did not respond to DeSimone's statement of material facts, the material facts set forth by DeSimone are deemed admitted for purposes of the summary judgment motion. M.D. Pa. L.R. 56.1. And those facts show that contrary to Ribaudo's allegations, DeSimone had a warrant supported by probable cause for Ribaudo's arrest and probable cause supported the charges against Ribaudo. Thus, DeSimone is entitled to judgment as a matter of law. Accordingly, DeSimone should be granted summary judgment
IV. Recommendations.
Based on the foregoing and given that Ribaudo has failed to prosecute this action, we recommend that the court dismiss this action in accordance with Fed. R. Civ. P. 41(b). In the alternative, we recommend that the court grant the motion for summary judgment (doc. 74) and enter summary judgment in favor of DeSimone on the merits.
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.