United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. FALLON, UNITED STATES MAGISTRATE JUDGE.
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.
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
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)
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
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
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.
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
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.
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