Opinion
CIVIL NO.: 4:17-CV-02260
04-29-2019
BOB E. MOHLER, Plaintiff, v. SYNCHRONY BANK, et al., Defendants.
(Judge Mariani) () REPORT AND RECOMMENDATION
I. Introduction.
The plaintiff Bob Mohler claims violations under the Fair Credit Reporting Act ("FCRA"). Defendant Synchrony Bank ("Synchrony") filed a motion to dismiss Mohler's second amended complaint. Despite being ordered to do so, Mohler has not responded to this motion. In fact it appears that Mohler has abandoned this action. Accordingly, after analyzing the applicable Poulis factors, we conclude that the Court should dismiss this case based on Mohler's failure to prosecute this action. In the alternative, we recommend that the Court grant Synchrony's motion to dismiss.
II. Background and Procedural History.
On December 11, 2017, Mohler, proceeding pro se, began this action by filing a complaint naming Synchrony as the defendant. See Doc. 1 at 1. He also filed an application for leave to proceed in forma pauperis, which we granted. Doc. 3. Following dismissal of the original complaint and an amended complaint, Mohler filed his second amended complaint on September 6, 2018. Doc. 26.
In the second amended complaint, Mohler brings three counts under the FCRA against Synchrony. Doc. 26. In the caption of the complaint, Mohler also lists as defendants "Does 1 thru 5." Id at 1. But he makes no allegations in the body of the second amended complaint regarding any Doe defendants, nor does he direct any cause of action against them. In Count One, citing 15 U.S.C. § 1681s-2(a), Mohler alleges that Synchrony violated the FCRA by failing to conduct a proper investigation of his dispute and that it failed to direct the consumer reporting agencies to delete inaccurate information. Id. at 2-4. He seeks "$630,000.00 for these violations. Id at 4. In Count Two, Mohler again cites provisions of 15 U.S.C. § 1681s-2(a) as well as 15 U.S.C. § 1681n, which provides for civil liability for willful noncompliance with the FCRA. He again seeks the same specific sum of unliquidated damages as he did in count one. Id. at 5. In Count Three, Mohler cites to 15 U.S.C. § 1681o, which provides generally for civil liability for negligent noncompliance with the FCRA. He seeks "$50,000 in punitive/liability damages." Id. at 6. Mohler alleges that although he has never been late on a payment, Synchrony reported negative information to credit reporting agencies. Id. In a section titled "Summary," Mohler alleges that he contacted Synchrony twice to resolve his issue prior to filing suit and that Synchrony failed to comply with the FCRA. Id. He seeks removal of all derogatory information from his credit reports, and "[a] written statement indicating that this will never be reported now or in the future in [his] credit report." Id.
Pursuant to Local Rule 8.1, "[t]he demand for judgment required in any pleading in any civil action pursuant to Fed.R.Civ.P. 8(a)(3) may set forth generally that the party claiming damages is entitled to monetary relief but shall not claim any specific sum where unliquidated damages are involved." Mohler's demand for a specific sum of unliquidated damages is inappropriate.
See n.1.
See n.1.
Synchrony filed a motion to dismiss the second amended complaint and a brief in support of that motion on September 20, 2018. Docs. 28, 29. In Synchrony's brief in support of its motion to dismiss the second amended complaint, it contends that Mohler fails to state a claim, and the brief includes two dispute letters that Mohler sent to Synchrony. Doc. 29. In each letter, Mohler states he found a "line of credit reporting derogatory information" and that he "[does] not recall ever having this account and I wish to dispute this." Doc.29-1 at 3, 5. Synchrony responded with letters indicating that it reviewed Mohler's record and verified that it had reported the record correctly. Id at 8, 11. Synchrony asserts that these letters indicate Mohler's allegations are without merit. Doc. 29 at 5. It also claims that Mohler fails to allege facts that show Synchrony acted "willfully" in violation of the FRCA. Id. Additionally, Synchrony asks the court to strike those portions of Mohler's second amended complaint that request attorney's fees and specific amounts for unliquidated damages. Id.
We ordered Mohler to file a brief in opposition to the motion to dismiss on or before October 9, 2018. Doc. 30. Mohler failed to file a brief in opposition.
Generally, a dispositive motion may not be granted merely because it is unopposed. But when a plaintiff fails to prosecute an action or fails to comply with a court order, the Court may dismiss the action under Fed. R. Civ. P. 41(b). Here, because Mohler failed to file a brief in opposition to Synchrony's motion to dismiss, we thought that Mohler may have abandoned this lawsuit. And so, by an Order dated January 28, 2019, we ordered Mohler to show cause why this action should not be dismissed under Fed. R. Civ. P. 41(b) because he has failed to prosecute this action. Doc. 31.
Mohler has failed to respond to the order to show cause. His last contact with the court in this case was the filing of his second amended complaint in September 2018.
III. Discussion.
A. Under the rules of this Court, Mohler should be deemed not to oppose the motion to dismiss.
At the outset, under the Local Rules of this court, Mohler should be deemed not to oppose the motion to dismiss since he has failed to timely oppose the 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." At the time that he filed his complaint, Mohler received a copy of the Court's Standing Practice Order, which set forth his obligations with respect to responding to a motion. Doc. 5.
In this case, Mohler has not complied with Local Rule 7.6 or this Court's order to respond to the motion to dismiss. Nor has he shown cause, after being ordered to do so, why this case should not be dismissed.
The Federal Rules of Civil Procedure "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. "Often that will mean that courts should strive to resolve cases on their merits whenever possible." McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir. 1998). But "justice also requires that the merits of a particular dispute be placed before the court in a timely fashion . . . ." Id. Balancing these interests, the Court must ensure that one party's failure to comply with the rules does not prejudice the other parties.
In this case, Mohler failed to comply with Local Rule 7.6 and he failed to file a brief in opposition to the pending motion to dismiss. Nevertheless, Mohler'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. The court 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.
This caveat from the Stackhouse case might suggest that we could grant the pending motion based on Mohler's failure to file a brief in opposition after being ordered to do so by the Court. But the Third Circuit later 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 F.App'x 890, 895 (3d Cir. 2008). Rather, the Third Circuit has held that a court must consider the factors set forth in the seminal Poulis case before dismissing a case as a sanction for failure to follow a court rule or court order. 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 F.App'x 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. The Poulis factors warrant dismissal of this case, or in the alternative, the Court should grant the defendant's motion to dismiss.
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., No. 18-1760, 2019 WL 1783540, at *3 (3d Cir. Apr. 24, 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 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. 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. In this case, because Mohler is proceeding pro se, he is responsible for his failure to comply with the court rules and court orders. He is ultimately 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. Mohler's failure to litigate this case and comply with court rules and court orders frustrates and delays resolution of this action. And so, such failure to litigate can be seen to prejudice Synchrony, who seeks 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, Mohler has repeatedly failed to meet court rules and deadlines. He failed to file a brief in opposition to the pending motion to dismiss. Moreover, he failed to do so even though the Court ordered him to do so. Further, he failed to respond to the order to show cause why this case should not be dismissed. These delays have taken place over months and Mohler has not replied with either a request for an extension of time or a substantive response. Mohler 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, Mohler was ordered to file a brief in opposition to the motion to dismiss, but he did not do so. Nor has he communicated with the Court in any manner for over six months. Mohler's silence and failure to litigate this action lead 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. Mohler is proceeding pro se and in forma pauperis. 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, Mohler's failure to prosecute this action even in the face of an 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, Synchrony has presented several defenses.
Further, Mohler premises his claims against Synchrony on 15 U.S.C. § 1681s-2(a), which provides that a "furnisher of information has a duty to provide accurate information" to a consumer reporting agency. SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 357 (3d Cir. 2011). But the "FCRA explicitly precludes private suits for failure to comply with that statutory duty, 15 U.S.C. §1681s-2(c), and instead provides for enforcement of that provision by federal and state officials, 15 U.S.C. § 1681s-2(d)." Seamans v. Temple Univ., 744 F.3d 853, 864 (3d Cir. 2014). Thus, although Mohler relies on § 1681s-2(a) in his second amended complaint, he cannot state a claim under that section.
In our prior Report and Recommendation regarding Synchrony's motion to dismiss the original complaint, we noted that an individual may state a claim upon which relief can be granted based on a violation of § 1681s-2(b). See SimmsParris, 652 F.3d at 358. But in his second amended complaint, Mohler does not rely on § 1681s-2(b), and he does not address the elements of such a claim in his allegations.
We note that Judge Mannion recently dismissed with prejudice a complaint filed by Mohler against Bank of America. See Mohler v. Bank of America, 4:17-CV-02263 (M.D. Pa.). The complaint in that case is nearly identical to the second amended complaint in this case. Compare Doc. 1 in 4:17-CV-02263 with Doc. 26 in this case. Judge Mannion concluded among other things that the complaint in 4:17-CV-02263 failed to state a claim upon which relief can be granted. See Doc. 14 at 3 in 4:17-CV-02263.
In sum, the Poulis factors favor dismissal. Thus, we will recommend that the Court dismiss the case. In the alternative, we recommend that the Court grant the pending motion to dismiss.
IV. Recommendations.
Accordingly, for the foregoing reasons, it is recommended that the Court dismiss this action in accordance with Fed.R.Civ.P. 41(b) or, in the alternative, grant the defendant's motion to dismiss. (doc. 28)
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.
Submitted this 29th day of April, 2019.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge