United States District Court, D. Delaware
KIMBERLY D. TROTTER Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
REPORT AND RECOMMENDATION
R. FALLON UNITED STATES MAGISTRATE JUDGE
Kimberly D. Trotter filed this action on February 9, 2018.
(D.I. 1) She proceeds pro se. A briefing schedule
was entered on June 25, 2018, and it gave Plaintiff until
August 6, 2018 to submit an opening brief. (D.I. 11) To date,
Plaintiff has not filed an opening brief. On April 12, 2019,
Plaintiff filed a letter with the court indicating that the
Plaintiff is "currently still under doctor
[sic] orders." (D.I. 24) The court treats this
letter as a further request for an extension to file
Plaintiffs opening brief on appeal.
commenced this action on February 9, 2018. (D.I. 1) The
scheduling order provided a deadline for filing Plaintiffs
opening brief of August 6, 2018. (D.I. 11) On August 3, 2018,
Plaintiff filed a motion to extend time to file her opening
brief, which was granted by the court on August 6, 2018.
(D.I. 12) Plaintiffs opening brief became due on or before
September 6, 2018. The deadline passed and Plaintiff did not
file an opening brief nor request a further extension of time
to file it.
November 16, 2018, the court issued an Order to Show Cause on
or before December 7, 2018 as to why this case should not be
dismissed for failure to prosecute, pursuant to D. Del. LR
41.1. (D.I. 14) On November 30, 2018, Plaintiff filed a
motion for extension of time to file a response to the Order
to Show Cause, which the court granted on December 4, 2018.
(D.I. 15; D.I. 16) Plaintiff s opening brief became due on or
before January 4, 2019. (D.I. 16) On the January 4, 2019
deadline, Plaintiff did not file an opening brief. However,
she submitted a letter to the court indicating that she was
seeking attorney representation. (D.I. 17)
on January 7, 2019, the court issued an Order to Show Cause
as to why the case should not be dismissed for failure to
prosecute, pursuant to D. Del. LR 41.1, and ordered that
Plaintiff submit her opening brief on or before February 8,
2019. (D.I. 18) On January 7, 2019, Plaintiff filed a letter
that she called an "Amended Statement," expressing
concern over her previous attorney's legal advice. (D.I.
19) Beyond this letter response, Plaintiff did not respond to
the Order to Show Cause. On February 4, 2019, Plaintiff filed
another motion for extension of time to file a response to
the Order to Show Cause, which the court granted on February
5, 2019. (D.I. 20; D.I. 21) Plaintiffs opening brief became
due on or before March 8, 2019. (D.I. 21)
March 8, 2019, without filing her opening brief, Plaintiff
filed yet another motion for extension of time to file a
response to the Order to Show Cause, which the court granted
on March 11, 2019. (D.I. 22; D.I. 23) Plaintiffs opening
brief became due on or before April 12, 2019 and the court
explained that there would be no further extensions. (D.I.
23) On April 12, 2019, Plaintiff filed a motion for extension
of time to file her opening brief. (D.I. 24) Plaintiffs most
recent motion equates to at least her fifth request to extend
the time to file her opening brief on appeal.
to Fed.R.Civ.P. 41(b), a court may dismiss an action
"[i]f the plaintiff fails to prosecute or to comply with
[the Federal Rules] or a court order . . . ."
Fed.R.Civ.P. 41(b). 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.
See Harris v. City of Philadelphia, 47 F.3d 1311,
1330 (3d Cir. 1995).
Court considers the following factors to 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., 747 F.2d 863, 868 (3d Cir.
1984); see also Emerson v. Thiel Coll., 296 F.3d
184, 190 (3d Cir. 2002).
Court must balance the factors and may dismiss the action
even if all of them do not weigh against Plaintiff. See
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. See Hicks v.
Feeney, 850 F.2d 152, 156 (3d Cir. 1998); 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
recommend that the Poulis factors warrant dismissal
of Plaintiff s claims. 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). In addition, Defendant is
prejudiced by Plaintiffs failure to prosecute. Prejudice
occurs when a plaintiffs failure to prosecute burdens the
defendant's ability to prepare for trial. Ware v.
Rodale Press, Inc.,322 F.3d 218, 222-23 (3d Cir. 2003).
Here, Plaintiffs failure to file her opening brief impedes