Ennis v. New Jersey Bell Telephone Co.

782 F.2d 396, 3 Fed. R. Serv. 3d 1408
CourtCourt of Appeals for the Third Circuit
DecidedAugust 12, 1985
DocketNo. 84-5669
StatusPublished
Cited by6 cases

This text of 782 F.2d 396 (Ennis v. New Jersey Bell Telephone Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ennis v. New Jersey Bell Telephone Co., 782 F.2d 396, 3 Fed. R. Serv. 3d 1408 (3d Cir. 1985).

Opinion

OPINION OF THE COURT

ALDISERT, Chief Judge.

The question before the court is whether the district court properly followed the teachings of Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984), and its predecessors, in dismissing a complaint for the failure of the plaintiff and plaintiff’s counsel to obey court orders compelling discovery. Poulis teaches:

In exercising our appellate function to determine whether the trial court has abused its discretion in dismissing, or refusing to lift a default, we will be guided by the manner in which the trial court balanced the following factors, which have been enumerated in the earlier cases, and whether the record supports its findings: (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.

747 F.2d at 868.

We affirm the judgment of the district court for the reasons set forth by the district court in its exhaustive opinion, reprinted in app. at 747a-71a, and additionally for the reasons set forth from the bench. Id. at 736a-40a. We now turn to the Poulis factors listed above.

I.

With regard to the first Poulis factor, we are satisfied that in the relationships between attorney and client, the plaintiff assumed a personal responsibility throughout these entire proceedings, and that the district court considered this factor. On two separate occasions the district court directly asked plaintiff’s counsel, Beverly K. Thompson, whether she had made plaintiff aware of counsel’s health problems and whether the plaintiff wanted Ms. Thompson to continue representing her. Id. at 592a-93a, 714a-15a. On both occasions, the court was informed that the plaintiff wanted Ms. Thompson and no one else to represent her, “despite her knowledge of counsel's troubles with compliance with court rules and orders.” Id. Plaintiff’s counsel said that the plaintiff had been advised of the wisdom of obtaining new counsel, and declined the invitation. Id.

II.

The second Poulis factor concerns prejudice to the defaulting party’s opponent caused by the delay. We are persuaded that there was prejudice to the defendant. In imposing previous sanctions against the plaintiff, the court stated:

The defendant has a right at some point in time, when he comes again and again, as he is forced to do, before this Court for the enforcement of reciprocal discovery obligations and is constantly turned down on his request for sanctions. At some point I wouldn’t blame them for throwing up their hands and saying what kind of hall of justice is this? We’ve been going on here now for three years or so, three and-a-half, and every time we come before this Court, the judge or the [398]*398magistrate winds up by saying, “Well, let’s give her another chance, she’s been sick or she’s been ill, and there is this excuse or that excuse, that may be legitimate. And so rather than prejudice or penalize the litigant, we won’t throw the case out.”

Id. at 591a. Moreover, critical evidence was lost. Plaintiff's expert witness, Dr. King, misplaced the original tape recorded report that he had made in this case. Id. at 693a. Also, although the cause of action arose in 1979 there was a concomitant dimming of memories caused by the five year delay.

III.

With regard to the third Poulis factor, the record is a paradigm of dilatory conduct on the part of plaintiff and plaintiff's counsel. Indeed, the record of dilatoriness is so all-pervasive that it need not be set forth in detail. It is sufficient to note the comments of the district court:

Ms. Thompson’s comments and conduct evidenced an indifference to her obligations to the court and defense counsel. Although she relied upon her disabilities as an excuse and blamed defense counsel for her predicament, the inescapable conclusion is that she was, once again, at least in a position properly to apprise the court and defense counsel of the status of her progress in complying with the court’s order and to seek relief if necessary, and that she utterly failed to take the appropriate action.

Id. at 767a-68a. These are findings of the district court which we believe are entirely consistent with the “history of dilatoriness” factor in Poulis:

Time limits imposed by the rules and the court serve an important purpose for the expeditious processing of litigation. If compliance is not feasible, a timely request for an extension should be made to the court. A history by counsel of ignoring these time limits is intolerable.

IV.

In finding plaintiff’s counsel's conduct to be of sufficient culpability to warrant the dismissal, the fourth Poulis factor, the district court expressly stated that her conduct and comments demonstrated “total disregard,” app. at 750a, and “indifference” of an “unconscionable” nature toward her obligations as counsel, her responsibilities to her adversary, and toward the court’s orders. Id. at 763a, 767a. Moreover, the district court determined that “Ms. Thompson is fearless in her indifference to this court’s order: she has never given the court any indication that she appreciates the gravity of her conduct.” Id. at 769a. Although the court did not use the words willfulness or bad faith, these are not necessary. Hritz v. Woma Corp., 732 F.2d 1178, 1182-83 (3d Cir.1984). We are persuaded that the district court’s use of the words “total disregard” and “fearless ... indifference” met the condemned conduct standard of “willfulness” or “bad faith.”

V.

We next turn to the fifth Poulis factor, whether the district court considered the effectiveness of sanctions other than dismissal. Here, too, the court properly addressed this factor:

The court has already imposed many of the sanctions suggested by the Court of Appeals for the Third Circuit in Titus v. Mercedes Benz of North America, 695 F.2d 746, 749 n. 6 (1982). Ms. Thompson has been warned on numerous occasions and reprimanded on the record in open court. Costs and attorney’s fees have been assessed against the plaintiff and against Ms. Thompson. Experts have been excluded, and the exclusion of any more testimony would be tantamount to a dismissal.
Sanctions not already imposed would be either pointless or inappropriate under the circumstances. It would obviously be ludicrous to place this case at the bottom of the court’s calendar as a sanction. Both plaintiff and plaintiff's counsel apparently have great tolerance for [399]

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Bluebook (online)
782 F.2d 396, 3 Fed. R. Serv. 3d 1408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ennis-v-new-jersey-bell-telephone-co-ca3-1985.