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.

Gilbert v. Berryhill

United States District Court, D. Delaware

September 10, 2019

JEFFREY GILBERT, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Jeffrey Gilbert filed this action on April 27, 2018. (D.I. 1; D.I. 2) He proceeds pro se. An Order was entered on January 2, 2019, which gave Plaintiff until March 4, 2019 to submit an opening brief. (D.I. 10) To date, Plaintiff has not filed an opening brief.

         II. BACKGROUND

         Plaintiff commenced this action on April 27, 2018. (D.I. 1; D.I. 2) The scheduling order provided a deadline for filing Plaintiffs opening brief of March 4, 2019. (D.I. 10) On March 5, 2019, Plaintiff filed a letter indicating that he was seeking attorney representation and sought an extension of time. (D.I. 11) The court granted Plaintiffs motion for an extension of time on March 20, 2019. (D.I. 12) Plaintiffs opening brief became due on or before April 22, 2019. (Id.) The deadline passed and Plaintiff did not file an opening brief nor request a further extension of time to file it.

         On April 29, 2019, the court issued an Order to Show Cause on or before May 24, 2019 as to why this case should not be dismissed for failure to prosecute, pursuant to D. Del. LR 41.1. (D.I. 14) The deadline passed and Plaintiff did not request an extension of time, file his opening brief, or otherwise respond to the Order to Show Cause. On May 30, 2019, the court issued an Order to Show Cause on or before June 30, 2019 as to why this case should not be dismissed for failure to prosecute. (D.I. 15) The deadline passed and Plaintiff did not request an extension of time, file his opening brief, or otherwise respond to the Order to Show Cause. On July 2, 2019, the court issued an Order to Show Cause on or before August 1, 2019 as to why the case should not be dismissed for failure to prosecute. (D.I. 16)

         The deadline passed and, on August 5, 2019, Plaintiff submitted a letter to the court indicating that he was seeking attorney representation and that he sought an extension of time. (D.I. 17) The court granted Plaintiffs motion for an extension of time on August 6, 2019. (D.I. 18) Plaintiffs opening brief became due on or before September 6, 2019. (Id.) Moreover, the Order provided notice to the Plaintiff that his failure to submit his opening brief by the deadline of September 6, 2019 may result in the dismissal of his case. (Id.) To date, the Plaintiff has failed to submit an opening brief or otherwise respond to the Order to Show Cause.

         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 should assess the following six factors to determine whether dismissal is warranted and abuses its discretion where it fails to properly consider and balance the factors. See Hildebrand v. Allegheny Cty., 923 F.3d 128, 132 (3d Cir. 2019). The six factors are: (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., 141 F.2d 863, 868 (3d Cir. 1984); see also Hildebrand, 923 F.3d at 128; 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. 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). "[C]ases should be decided on the merits barring substantial circumstances in support of the contrary outcome." Hildebrand, 923 F.3d at 132 (citations omitted). If the case is close, "doubts should be resolved in favor of reaching a decision on the merits." Id.

         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 his 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. See Ware v. Rodale Press, Inc., 322 F.3d 218, 222-23 (3d Cir. 2003). Here, Plaintiffs failure to file his opening brief impedes Defendant's ability to meaningfully respond to the scope of Plaintiff s appeal and to submit Defendant's cross-motion for summary judgment.

         As to the third factor, there is a history of dilatoriness given that Plaintiff has failed to respond to four of the court's Orders. (D.I. 13; D.I. 14; D.I. 15; D.I. 16) Plaintiff has filed two motions for extension of time to respond to the court's Orders to Show Cause and file his opening brief. (D.I. 11; D.I. 17) As to the fourth factor, the court will not conclude at this time that the Plaintiffs ...


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.