United States District Court, D. Delaware
plaintiff, Marco Brown ("Brown"), a former employee
of the defendant Delaware Department of Correction
("DOC"), filed this employment discrimination
action on January 29, 2016. (D.I.I.) He appears pro
se. The court has jurisdiction pursuant to 28 U.S.C.
§ 1331. Before the court is the DOC's combined
motion to dismiss for failure to prosecute and motion for
summary judgment. (D.I. 10.)
alleges that he was subjected to gender discrimination and
sexual harassment in violation of Title VII of the Civil
Rights Act of 1964, as amended ("Title VII"), 42
U.S.C. §§ 2OOOe, et seq., during the
course of his employment. When he had taken no action, the
court entered a show cause order on June 29, 2016, for Brown
to show cause why the case should not be dismissed for
failure to prosecute. (D.I. 3.) Following his response, the
court founds he had shown cause. (D.I. 6.) Thereafter, the
DOC answered the complaint and, on October 31, 2016, the
court entered a scheduling order. (D.I. 8, 9.) On July 3,
2017, the DOC filed the instant motion. (D.I. 10.) Brown did
not file a response.
Failure to Prosecute
court turns to the issue of Brown's failure to prosecute,
given that he did not participate in the discovery process
and did not respond to defendants' motion for summary
judgment. 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).
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. Poulis v. State
Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.
1984); see also Emerson v. Thiel Coll., 296 F.3d
184, 190 (3d Cir. 2002); Huertas v. United States
Dep't of Educ, 408 Fed.Appx. 639 (3d Cir. 2010)
court must balance the factors and need not find that all of
them weigh against Brown to dismiss the action.
Emerson, 296 F.3d at 190 (3d Cir. 2002). Because
dismissal for failure to prosecute involves a factual
inquiry, it can be appropriate even if some of the
Poulis factors are not satisfied. Hicks v.
Feeney, 850 F.2d 152, 156 (3d Cir. 1988); Curtis T.
Bedwell & Sons, Inc. v. International Fidelity Ins.
Co., 843 F.2d 683, 696 (3d Cir. 1988) (holding that not
all Poulis factors must weigh in favor of
court finds that the Poulis factors warrant
dismissal of Brown's case. First, as a pro se
litigant, Brown is solely responsible for prosecuting his
claim. See Briscoe v. Klaus, 538 F.3d 252, 258-59
(3d Cir. 2008). Second, the DOC is prejudiced by Brown's
failure to prosecute. Prejudice occurs when a plaintiffs
failure to prosecute burdens a defendant's ability to
prepare for trial. Ware v. Rodale Press, Inc., 322
F.3d 218, 222-23 (3d Cir. 2003). Brown did not provide the
DOC with a copy of his charge of discrimination or with a
copy of the notice of suit rights. Nor did Brown participate
in the discovery process. His failure in both instances
severely impedes the DOC's ability to prepare a trial
regard to the third factor, the court notes that Brown acted
in a dilatory manner when he failed to participate in this
case through the discovery process, and failed to respond to
the motion for summary judgment. In addition, when this case
was in its early stages the court ordered Brown to show cause
why the case should not be dismissed for his failure to
prosecute. While he did respond, his failure to take action
evidences his lack of interest in the case. All of this leads
to the conclusion that there is a history of dilatoriness.
the fourth factor, the facts to date lead to a conclusion
that Brown's failure to prosecute is willful or in bad
faith. Brown filed this lawsuit, yet failed to participate in
discovery or to respond to dispositive motions. For these
reasons, the court finds Brown's actions willful and in
the fifth factor, most sanctions, such as barring evidence,
would lead to dismissal of the case. Finally, as to the sixth
factor, as discussed in the DOC's motion, it is far from
clear that Brown complied with the jurisdictional
requirements to maintain this Title VII action.
above reasons, the court finds that the Poulis
factors weigh in favor of dismissal. Therefore, the court
will grant the defendants' motion to dismiss for failure