Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:07-cv-00832-JJF Document 13 Filed 07/31/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RONALD WARNE, :
Plaintiff, i
v. ; Civil Action No. 07-832-JJF
HOME OF MERCIFUL REST SOCIETY,;
INC., d/b/a KENTMERE NURSING ;
CARE CENTER, :
Defendant. ;
MEMORANDUM OPINION AND ORDER
Presently before the Court is Defendant’s Renewed Motion To
Dismiss, docketed as a Motion To Dismiss For Lack Of Prosecution.
(D.I.11.) For the reasons set forth below, the Court will issue
a Show Cause Order to determine whether this case should be
dismissed for failure to prosecute.
I. BACKGROUND
Plaintiff, Ronald Warne was employed by Defendant, Kentmere
Nursing Care Center, as the Director of Maintenance until he was
terminated on March 27, 2006. As a result of his termination,
Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEoc"> on January 25, 2007,
287 days after he was terminated.
Plaintiff filed this action through counsel on December 19,
2007. On February 18, 2008, Defendant moved to dismiss the
Complaint for failure to state a claim. Although the docket

Case 1:07-cv-00832-JJF Document 13 Filed 07/31/2008 Page 2 of 4
indicates that electronic notification of the motion was served
to the e—mail address of Plaintiff's counsel, no response to the
motion was ever filed. On May 21, 2008, Defendant filed a second
motion to dismiss based on Plaintiff's failure to prosecute this
action under Del. L.R. 41.1. The docket also reflects that this
motion was served to the e—mail address of Plaintiff's counsel,
but no response to the motion has been filed.
II. STANDARD OF REVIEW
Pursuant to Fed. R. Civ. P. 41 (b), a court may dismiss an
action “[f]or failure of the plaintiff to prosecute or to comply
with the Federal Rules or any order of court. . ." Although
dismissal is an extreme sanction that should only be used in
limited circumstances, dismissal is appropriate if a party fails
to prosecute the action. Harris v. City of Philadelphia, 47 F.3d
1311, 1330 (3d cir. 1995).
The Third Circuit has set forth six factors to consider when
evaluating dismissal for failure to prosecute: (1) the extent of
the party's personal responsibility; (2) prejudice to the
adversary; (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; and (6) the
meritoriousness of the claim. Poulis v. State Farm Fire & Cas.
Cog, 747 F.2d 863, 868 (3d Cir. 1984). The Court must balance
the factors and need not find that all of them weigh against the
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plaintiff to dismiss the action. Emerson v. Thiel College, 296
F.3d 184, 190 (3d Cir. 2002). Because dismissal for failure to
prosecute involves a factual inquiry, it can be appropriate even
if some of Poulis factors are not satisfied. Hicks v. Feeney, 850
F.2d 152, 156 (3d Cir. 1998). Moreover, when a litigant’s
conduct makes adjudication of the case impossible such balancing
under Poulis is unnecessary. See Guyer v. Beard, 907 F.2d 1424,
1429-30 (3d Cir. 1990); see also Spain v. Gallegos, 26 F.3d 439,
454-55 (3d Cir. 1994).
III. DISCUSSION
Applying the Poulis factors to the circumstance of this
case, the Court concludes that Plaintiff's failure to prosecute
this action could result in dismissal, particularly in light of
Plaintiff’s failure to respond to the instant Motion. Plaintiff
initiated this case in December and has failed to take any action
in the case for more than six months. Plaintiff’s dilatoriness
has stalled this litigation and hampered Defendant’s ability to
defend the action. Plaintiff has provided no correspondence to
the Court explaining his failure to respond to Defendant’s
motions or otherwise litigate this case. In these circumstances,
the Court is left with no other conclusion than Plaintiff has
willfully failed to prosecute this action.
Del. L.R. 41.1 provides:
Subject to the provisions of Fed. R. Civ. P. 23 and
23.1, in each case pending wherein no action has been
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taken for a period of 3 months, the Court may, on its
motion or upon application of any party, and after
reasonable notice and opportunity to be heard, enter an
order dismissing such case unless good reason for the
inaction is given. After any such application or
notice from the Court, no application for a continuance
or any proceeding taken under the discovery rules shall
be deemed to toll the operation of this Rule.
Consistent with this rule, the Court will provide Plaintiff with
a final opportunity to explain his delay and avoid dismissal of
this action.
NOW THEREFORE, IT IS HEREBY ORDERED that Plaintiff shall
show cause why this action should not be dismissed with prejudice
by submitting a written explanation for his failure to respond to
Defendant’s pending Motion and a written explanation as to why he
has not prosecuted the alleged claims no later than August 15,
2008. Failure to comply with this Order will result in the Court
dismissing all of Plaintiff’s claims.
July 5* , 2008 il ,
DATE ED TATE DISTRICT JUD
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