Allen v. International Union United Government Security Officers of America

51 V.I. 546, 2009 WL 482540, 2009 U.S. Dist. LEXIS 15097
CourtDistrict Court, Virgin Islands
DecidedFebruary 26, 2009
DocketCivil No. 2005-54
StatusPublished

This text of 51 V.I. 546 (Allen v. International Union United Government Security Officers of America) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. International Union United Government Security Officers of America, 51 V.I. 546, 2009 WL 482540, 2009 U.S. Dist. LEXIS 15097 (vid 2009).

Opinion

GÓMEZ, Chief Judge

MEMORANDUM OPINION

(February 26, 2009)

Before the Court is the motion of the defendant International Union, United Government Security Officers of America and its Local #60 (“UGSOA”) to dismiss this action for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). Defendant MVM, Inc. (“MVM”) joins the motion to dismiss. The motion is unopposed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Clifford W. Allen (“Allen”) commenced this action on February 22, 2005, in the Superior Court. He claims that his union, the UGSOA, breached its duty to represent him when his employer, MVM, Inc. fired him. He also claims he was subject to discrimination in violation of 42 U.S.C. §§ 1981 and 1983.

This action was removed to this Court on March 29, 2005, upon a joint notice of removal of the defendants. After removal, the Court was advised that Allen was injured in an accident, and required multiple surgeries. The matter was stayed for six months in May, 2005, to allow Allen to obtain medical treatment. Allen’s attorney has indicated Allen was in rehabilitation during 2005 and 2006.

Since November, 2005, the defendants have attempted to defend this action. To that end, UGSOA and MVM have served interrogatories upon Allen. UGSOA also has requested production of documents, served requests for admissions, and noticed a deposition of Allen. However, Allen has failed to respond to any discovery requests. Allen’s attorney has advised the Court that the last time counsel heard from Allen was in November, 2006, when Allen contacted counsel and expressed his intent to pursue this matter. Allen’s attorney has further advised the Court that Allen is living in the Dominican Republic, and that Allen has failed to provide his attorney with information on his medical condition.

On November 25, 2008, this Court ordered Allen, no later than December 5, 2008, to show cause why this action should not be dismissed. Allen did not respond to that order.

[549]*549II. DISCUSSION

Federal Rule of Civil Procedure 41 provides that, “[i]f the plaintiff fails to prosecute ... a defendant may move to dismiss the action or any claim against it.” Fed. R. Crv. P. 41(b). A court’s authority to dismiss claims under Rule 41(b) is based on the “inherent power’ [of the court] ... to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (citation omitted). “Unless the dismissal order states otherwise, a dismissal under this [section] . . . operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b). “The procedural history of each case must be examined” in order to determine whether a motion under Rule 41(b) should be granted. Marshall v. Sielaff, 492 F.2d 917, 918 (3d Cir. 1974).

In Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) the United States Court of Appeals for the Third Circuit articulated the factors a district court must balance when considering whether to dismiss an action for a party’s failure to prosecute. 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 or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.” Id. at 868 (emphasis in original). These factors are assessed to ensure that the extreme sanction of dismissal is exercised only when appropriate. See id. at 867-68.

III. ANALYSIS

A. Personal responsibility

A plaintiff has the duty to diligently proceed with his action. See Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982) (citing Messenger v. United States, 231 F.2d 328, 331 (2d Cir. 1956)). The best efforts of counsel are fruitless without the participation of the plaintiff. At the very least, the plaintiff must make himself available for discovery. See Richardson v. Cox, No. Civ. A. 91-7830, 1993 U.S. Dist. LEXIS 16492, at *7, [WL] (E.D. Pa. Nov. 17, 1993) (citation omitted) (“a plaintiff must [550]*550bear the responsibility of pursuing his claim and at a minimum he must be willing to participate in the discovery process”).

Allen’s attorney has lost contact with Allen. Counsel states that in 2006 Allen said he would make himself available in the Virgin Islands in order to pursue this case, and that Allen also said he would provide medical and other information. Counsel has spoken to Allen’s brother, who has indicated that Allen remains in the Dominican Republic. Allen did not provide information, and has not returned to the Virgin Islands.

Allen’s failure to assume the most basic of responsibilities in prosecuting this matter, such as providing his own attorney with information, weighs in favor of dismissing this case.

B. Prejudice

The second Poulis factor the Court must weigh is prejudice to the adversary caused by the plaintiff’s inaction. Poulis, 747 F.2d at 868. Allen has a duty, in the spirit of the Federal Rules of Civil Procedure, to participate in discovery. When a party does not participate, his opponent can be prejudiced by being unable to obtain necessary information or to effectively prepare a trial strategy. Briscoe v. Klaus, 538 F.3d 252, 259 (3d Cir. 2008) (citing Ware v. Rodale Press Inc., 322 F.3d 218, 222 (3d Cir. 2003)).

Here, counsel for UGSOA points out that Allen has not responded to any written discovery directed to him, and has also failed to appear at a properly noticed deposition. Allen’s failure to participate in litigation that he initiated constitutes prejudice to the defendants. This litigation has been pending for five years.

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Related

Link v. Wabash Railroad
370 U.S. 626 (Supreme Court, 1962)
Bell Atlantic Corp. v. Twombly
550 U.S. 544 (Supreme Court, 2007)
Arra Ray Messenger v. United States
231 F.2d 328 (Second Circuit, 1956)
Clarence Marshall, Jr. v. Allyn R. Sielaff
492 F.2d 917 (Third Circuit, 1974)
Briscoe v. Klaus
538 F.3d 252 (Third Circuit, 2008)
Lyell Theatre Corp. v. Loews Corp.
682 F.2d 37 (Second Circuit, 1982)
Burns v. Glick
158 F.R.D. 354 (E.D. Pennsylvania, 1994)

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Bluebook (online)
51 V.I. 546, 2009 WL 482540, 2009 U.S. Dist. LEXIS 15097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-international-union-united-government-security-officers-of-america-vid-2009.