Opinion
Civil Action 21-0281
06-28-2021
LYNNE THOMPSON, Plaintiff, v. GEORGE C. BROMALL, GEORGE C. MILLER, HON. JUDGE CHRIS SHERER, LESLIE J. SCHUPP, ANTHONY CIMINO, Defendants.
Arthur J. Schwab District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Lynne Thompson (“Plaintiff”), a frequent litigator in this Court, commenced this pro se action on March 1, 2021, with the filing of a Complaint challenging the validity of state court residential eviction proceedings. For the reasons that follow, the Court recommends that this action be dismissed due to Plaintiff's failure to prosecute.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Thompson commenced this action pursuant to 42 U.S.C. § 1983 against her landlord Defendant Bromall; his attorney, Defendant Miller; real estate agents Defendants Leslie J. Schupp and Anthony Cimino; and Judge Chris Scherer, Pennsylvania Court of Common Pleas of Westmoreland County (collectively, “Defendants”). In her Complaint, Thompson alleges that Defendants, acting under color of law, violated the federal Fair Housing Act, 42 U.S.C. § 3601 et seq., as well as an order “issued by President Biden” imposing a moratorium on residential evictions because of the COVID-19 pandemic. ECF No. 1 at 4, 6-8. Thompson claims that eviction proceedings and all state court orders entered in conjunction thereto are unlawful due to the moratorium and that she is subject to an order requiring her to vacate the premises no later than April 21, 2021. ECF No. 10.
On March 24, 2021, Defendants Bromall and Miller filed a Motion to Dismiss for Failure to State a Claim. ECF No. 7. Plaintiff was ordered to respond to the Motion to Dismiss by April 15, 2021. Upon her motion for an extension of time, the Court granted Plaintiff until May 31, 2021 to file her response. ECF Nos. 8 and 14. In the interim, Plaintiff filed three motions for injunctive relief to prevent her eviction from the subject premises. ECF Nos. 2, 10, and 15. Given the existence of parallel state court proceedings and in accordance with the Anti-Injunction Act, 28 U.S.C. § 2283, the Court issued an Order on April 21, 2021, denying her motions at ECF Nos. 2 and 10. Plaintiff has not appealed that Order nor has she filed a response to the Motion to Dismiss. Moreover, it is apparent from the docket of this matter that service has not been effected as to Defendants Leslie Schupp, Anthony Cimino or Judge Scherer, and more than 90 days have passed since the commencement of this action. On June 8, 2021, the Court issued an Order to Show Cause why this action should not be dismissed for failure to comply the Court's order to file a response to the Motion to Dismiss and ordered Plaintiff to file her response no later than June 22, 2021. ECF No. 1 6. The Court mailed a copy of the Order to Plaintiff's address of record, and it has not been returned as undeliverable. To date, Plaintiff has not responded to the Order to Show Cause, has not effected service on the remaining Defendants, and she has not notified the Court of her updated address, if any.
B. STANDARD OF REVIEW
As explained in Black v. Pennsylvania Bd. of Prob. & Parole, 717 Fed.Appx. 103, 104 (3d Cir. 2017):
A district court has authority to dismiss a suit for failure to prosecute under Federal Rule of Civil Procedure 41(b), but should do so sua sponte only when it has “acquired knowledge of the facts it needs to make an informed decision.” Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008); see also Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341 (3d Cir. 1982). Prior to determining that dismissal is an appropriate sanction, a district court must balance the following 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). Not all of these factors must be satisfied in order to justify dismissal, Ware v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003), and no single factor is determinative, see Hicks v. Feeney, 850 F.2d 152, 156-57 (3d Cir. 1988).
“Dismissal with prejudice is an ‘extreme' sanction” that must be employed as a “last, not first, resort.” Hildebrand v. Allegheny County, 923 F.3d 128, 132 (3d Cir. 2019) (quoting Nat'l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976), and Poulis, 747 F.2d at 867, 869). A close case should “be resolved in favor of reaching a decision on the merits.” Id. (citing Adams v. Trs. of the N.J. Brewery Emps.' Pension Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994)). Nevertheless, “[d]ismissal is a sanction rightfully in the district courts' toolbox, ” and the Third Circuit has “not hesitated to affirm the district court's imposition of sanctions, including dismissals in appropriate cases.” Hildebrand, 923 F.3d at 132 (citing Poulis, 747 F.2d at 867 n. 1).
Upon review of this case, application of the Poulis factors establishes that dismissal is warranted.
C. DISCUSSION
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 finds that Plaintiff's claims should be dismissed. First, as a pro se litigant, Plaintiff is solely responsible for prosecuting her claims. She is personally responsible for not responding to the Order to Show Cause, and for failing to keep the Court apprised of her current address.
Second, Plaintiff's conduct has prejudiced Defendants. Plaintiff's failure to comply with this Court's orders has delayed the resolution of this matter and has resulted in the expenditure of legal defense costs in an apparent frivolous matter.
With respect to the third and fourth factors, Plaintiff's failure to comply with the Court's orders represents a history of dilatoriness. Because it is Plaintiff's sole responsibility to prosecute her claims, her failure to keep the Court apprised of her current address or to comply with the Court's orders appears to be willful.
With respect to the sixth factor, the meritoriousness of Plaintiff's claims, “[g]enerally, in determining whether a plaintiff's clam is meritorious, [the Court] use[s] the standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim[, ] such that “[a] claim [is] . . . meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff ....” Briscoe v. Klaus, 538 F.3d 252, 263 (3d Cir. 2008). Under the circumstances alleged in Plaintiff's Complaint and the state court records attached to Plaintiff's various motions and Defendants' responses thereto, this factor weighs in favor of dismissal. 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. Since Plaintiff filed at least one motion indicating the need for financial assistance, ECF No. 15, it does not appear that monetary sanctions are appropriate. Plaintiff's failure to respond to the Order to Show Cause or to notify the Court of her current address, which has prevented this case from proceeding, suggests that Plaintiff has no serious interest in pursuing this case. Dismissal, therefore, is the most appropriate action for this Court to take. Mindek, 964 F.2d at 1373.
D. CONCLUSION
On balance, while the Court is mindful of the strong policy in favor of deciding cases on the merits, such a resolution is impossible where the plaintiff declines to participate in her own lawsuit. Consequently, the Court concludes that on the record presented here, dismissal is supported by the Poulis factors. As such, it is respectfully recommended that this action be dismissed.
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.