United States District Court, D. Delaware
Carolyn Babiarz, Wilmington, Delaware, Pro Se Plaintiff.
Clement Handlon, Deputy Attorney General Deputy, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
U.S. District Judge
Carolyn Babiarz ("Plaintiff) filed this civil rights
action on October 7, 2016. (D.I. 1) She appears pro
se and has paid the filing fee. Pending is
Defendants' motion to dismiss (D.I. 8) and letter/motion
to dismiss for failure to prosecute. (D.I. 9) Plaintiff did
not respond to either motion. The Court has jurisdiction
pursuant to 28 U.S.C. § 1331. For the reasons that
follow, the Court will grant the letter/motion to dismiss for
failure to prosecute.
noted, Plaintiff commenced this action in October 2016. On
January 23, 2017, Defendants filed a motion to dismiss on the
grounds of: (1) Eleventh Amendment immunity from suit; (2)
there is not respondeat superior liability under 42 U.S.C.
§ 1983; (3) to the extent Plaintiff asserts Title VII
claims, such claims cannot be maintained against individuals;
(4) any civil rights claims are time-barred; and (5) the
complaint fails to state a plausible claim for relief.
(See D.I. 8) When Plaintiff had not responded to the
motion by June 1, 2017, Defendants filed a letter/motion to
dismiss for failure to prosecute. (See D.I. 9) As
with the motion to dismiss, Plaintiff did not respond to the
letter/motion for failure to prosecute. On June 19, 2017,
Plaintiff filed a request for counsel with an exhibit, but
still did not respond to Defendants' letter/motion to
dismiss for failure to prosecute. (See~D.l.
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). Under Local Rule 41.1, in a case pending
wherein no action has been taken for a period of three
months, upon application of any party, and after reasonable
notice and opportunity to be heard, the Court may enter an
order dismissing the case unless good reason for the inaction
is given. See D. Del. LR 41.1.
following six factors determine whether dismissal is
warranted. (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 other sanctions; and (6) the
meritoriousness of the claim or defense. See Poulis v.
State Farm Fire and Cas. Co., 1A1 F.2d 863, 868 (3d Cir.
1984). The Court must balance the factors and need not find
that all of them weigh against Plaintiff to dismiss the
action. See Emerson v. Thiel Coll., 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.
See Hicks v. Feeney, 850 F.2dl52, 156 (3d Cir.
move for dismissal based upon Plaintiffs failure to prosecute
her case. The Court notes that Defendants mailed the January
23, 2017 motion to dismiss (D.I. 8) to the address provided
by Plaintiff. To date, Plaintiff has not filed a response to
the motion. Nor has Plaintiff filed response to
Defendants' June 1, 2017 letter/motion to dismiss for
failure to prosecute. (D.I. 9) It, too, was mailed to the
address provided by Plaintiff. Instead, Plaintiff recendy
filed a request for counsel.
Court finds that the Poulis factors warrant
dismissal of Plaintiff case. First, as a pro se
litigant, Plaintiff is solely responsible for prosecuting her
claim. See Hoxworth v. Blinder, Robinson & Co.,
980 F.2d 912, 920 (3d Cir. 1992). Defendants are prejudiced
by Plaintiffs failure to prosecute. Prejudice occurs when a
plaintiffs failure to prosecute burdens die defendant's
ability to prepare for trial. See Ware v. Kodak Press,
Inc., 322 F.3d 218, 222-23 (3d Cir. 2003). Here,
Plaintiffs failure to take any action hinders Defendants'
ability to defend this case.
die third factor, die docket indicates a history of
dilatoriness. As noted, Plaintiff has failed to respond to
motions to dismiss her case and, until die recendy-filed
request for counsel, had taken no action since January 17,
2017. As to the fourth factor, die facts to date lead to a
conclusion that Plaintiff failure to prosecute her claim