Opinion
2:17-CV-01454-AJS
10-03-2018
AMBROSIO ROUSE, Plaintiff, v. DEVLIN'S POINTE APARTMENTS, A BUSINESS; AND JAMES A. WESTJR., IN HIS INDIVIDUAL CAPACITY; Defendants
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the court dismiss Plaintiff's remaining claims against Defendants Devlin's Pointe Apartments and James A. West, Jr. with prejudice for failure to prosecute, sanctions be imposed against Plaintiff for the Defendants' costs and attorneys' fees in preparing for and attending the initial case management conference and show cause hearing.
II. REPORT
On August 13, 2018, the undersigned entered a scheduling order pursuant to Local Rule 16.1 indicating that an initial case management conference was scheduled for September 18, 2018 at 2:00 p.m. (ECF No. 73). Plaintiff, proceeding pro se, proceeded to file a motion for reconsideration of scheduling the initial case management conference, which was denied, as the conference was scheduled in accordance with local rules. (ECF Nos. 74 and 75). Plaintiff was again ordered to attend the initial case management conference and was informed by the court that if he did not attend, his failure to do so would result in sanctions, "including the recommended dismissal of the case for failure to prosecute." Text Order of 9/6/18 (ECF No. 77). Plaintiff did not appear at the initial case management conference that took place on September 18, 2018. See Minute Entry of 9/18/2018 (ECF No. 84). This court entered a show cause order scheduling a show cause hearing for October 2, 2018 and ordering Plaintiff to "attend in person and show cause as to why the action should not be dismissed for failure to prosecute and failure to comply with court orders." Order to Show Cause of 9/18/2018 (ECF No. 85). Plaintiff was again warned that his failure to appear in person at the show cause hearing would result in the court recommending sanctions including "that the action be dismissed with prejudice for failure to prosecute and for failure to comply with court orders." Id. Plaintiff received notice of the show cause order as evidenced by including this order in his filing captioned "Amended Notice of Appeal." (ECF No. 88).
Plaintiff's nonappearance at the initial case management conference and show cause hearing and the filing of an interlocutory appeal was not his first attempt to delay these proceedings. See Request for Entry of Default (ECF No. 59) (denied as asserted against a dismissed party); Motions for Recusal (ECF Nos. 60 (denied as meritless); Request for Entry of Default (ECF No. 65) (stricken as asserted against dismissed parties); Motion for Reconsideration (ECF No. 66) (denied as meritless); Request for Entry of Default (ECF No. 69) (stricken as asserted against a dismissed party); Motion to Stay and Motion for Reconsideration (ECF No. 70) (denied as meritless); Motion to Reconsider Scheduling the Initial Case Management Conference (ECF No. 74) (denied as meritless); and Motion for Sanctions and/or Motion to Amend Complaint (ECF No. 81) (denied as meritless).
Plaintiff failed to appear at the show cause hearing that took place on October 2, 2018. At the hearing, Defendants moved for dismissal pursuant to Federal Rule of Civil Procedure 41(b)(2). Further, Defendants indicated that Plaintiff has failed to comply with this court's order compelling Plaintiff to exchange his Federal Rule of Civil Procedure 26 initial disclosures. Minute Entry of 9/18/2018 (ECF No. 84).
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).
As Plaintiff is proceeding pro se, he is personally responsible for adequately prosecuting his case. He has offered no reason as to why he failed to appear at the initial case management conference, exchange his initial disclosures with Defendants and failed to appear at the show cause hearing. Plaintiff was informed that his appeal did not stay his case and he was ordered to appear at the show cause hearing. Defendants will be prejudiced if this case is not dismissed with prejudice, as it has been forced to defend claims and incur attorneys' fees against a Plaintiff who has continually failed to prosecute his case. Plaintiff has a history of dilatoriness, as set forth in footnote 1, supra, in filing numerous meritless motions to this court in an attempt to thwart this court's case management process. The court finds that Plaintiff's conduct in failure to appear was in bad faith and willful, as he had actual notice of both of the hearings and this court's order and nonetheless chose not to appear. See Amended Notice of Appeal (ECF No. 88) (referencing court orders scheduling both the initial case management conference and the show cause hearing). Moreover, Plaintiff has ignored the court's numerous warnings that failure to comply with court orders and attend scheduled hearings would result in his case being dismissed for failure to prosecute. See Order of 7/31/2018 (ECF No. 68) ("to the extent that Plaintiff refuses to comply with court orders, he does so at his own peril."); Text Order of 9/6/2018 (ECF No. 77) (failure to attend the initial case management conference "will result in sanctions, including the recommended dismissal of the case for failure to prosecute."); Order of 9/18/2018 (ECF No. 84) ("This case will not be stayed in light of Plaintiff's submission of a notice of appeal, a his appeal is interlocutory[,]" and "Plaintiff is reminded of his obligation to comply with court orders and failure to do so will result in his case being dismissed with prejudice."); Show Cause Order of 9/18/2018 (ECF No. 85) (failure to attend the show cause hearing will result in the court recommending "that the action be dismissed with prejudice for failure to prosecute and for failure to comply with court orders."). Further, this court made it clear that Plaintiff's filing of an appeal did not stay the proceedings in this case or excuse his attendance at the show cause hearing. (ECF No. 84). Because of Plaintiff's history of noncompliance and nonappearance, alternate sanctions would not be suitable. The court makes no determination as to the validity of Plaintiff's remaining claims, but finds that considering the five other Poulis factors, that sanctions, including the dismissal of Plaintiff's remaining claims with prejudice and for Defendants' costs and attorneys' fees in preparing for and attending the initial case management conference and show cause hearing, is warranted.
Plaintiff, although pro se, is not proceeding in forma pauperis. See Civil Filing Fee Receipt (ECF No. 1-2). "A district court may impose attorneys' fees as a sanction under its inherent power, . . . [if there is] some factual predicate which would indicate that the plaintiff was less than diligent in either prosecuting its case or complying with a court order." Com. v. Flaherty, 40 F.3d 57, 62 (3d Cir. 1994) (citation omitted). Further, sanctioning schemes imposed by statute do not "displace the inherent power [of federal courts] to impose sanctions for . . . bad-faith conduct." Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). Here, Plaintiff's bad faith conduct as set forth above is appropriately sanctioned by imposing attorneys' fees. --------
III. CONCLUSION
For those reasons, it is respectfully recommended that the instant action be dismissed for Plaintiff's failure to prosecute and sanctions be imposed upon Plaintiff for Defendants' costs and attorneys' fees in preparing for and attending the initial case management conference and show cause hearing. Defendants shall submit a fee petition to the court by October 10 , 2018 to which Plaintiff may respond by October 17 , 2018 .
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until October 17 , 2018 to file objections to this report and recommendation. Unless ordered otherwise by the District Judge, responses to objections are due October 31 , 2018 . See LCvR 72.C. Failure to file timely objections may constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Dated: October 3, 2018
Respectfully submitted,
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge cc: Honorable Arthur J. Schwab
United States District Judge
via electronic filing
AMBROSIO ROUSE
4270 Steubenville Pike
#22
Pittsburgh, PA 15205
All counsel via CM/ECF electronic filing