Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Trotter v. Berryhill

United States District Court, D. Delaware

April 24, 2019

KIMBERLY D. TROTTER Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff 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.

         II. BACKGROUND

         Plaintiff 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.

         On 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)

         Therefore, 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)

         On 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.

         III. LEGAL STANDARD

         Pursuant 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).

         The 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).

         The 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 dismissal).

         IV. DISCUSSION

         I 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.