NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3231
___________
FLORENCE R. PARKER,
Appellant
v.
PENNSTAR BANK, NBT; CITIMORTGAGE, Inc.; DAVID M. GREGORY, Esq.;
JOHN DOE, burglar-agent; CADOZA LUMBER VALLEY COMPANY, Inc.;
CARMEN VITALE, President; RAY JENSON, Log Buyer; MS. LYDA STERNS; SGT.
BLACK; JOHN DOE & JANE DOE AFFIANT; JOHN NOLAN, Chief Assessor; ESQ.
C. DANIEL HIGGINS; JOAN CAROL LANGSTON, Seller; MILFORD VALLEY
ABSTRACT; FIRST PENN ABSTRACT; KATHY M. YOUNG; NATIONAL PENN
BANK; ARROW HEAD ELECTRIC; BOBBY LEE; CREDIT COUNSELING
CENTER; FIRST PENN ABSTRACT
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-09-cv-00490)
District Judge: Honorable A. Richard Caputo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 8, 2011
Before: SCIRICA, SMITH AND VANASKIE, Circuit Judges
(Opinion filed: July 8, 2011)
_________
OPINION
_________
PER CURIAM
Pro se appellant Florence Parker appeals the District Court’s dismissal of her
amended complaint as a sanction for her failure to comply with discovery orders. We
have jurisdiction under 28 U.S.C. § 1291. For the reasons discussed below, we will
affirm the District Court’s judgment.
Parker filed this pro se civil action in October 2008, naming as defendants
Pennstar Bank, NBT; Pennstar’s attorney, David Gregory; and two of its employees,
Kathy Black and LynDa Starnes.1 She asserted claims under 42 U.S.C. § 1983, the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968,
and state law. Her claims concerned events leading up to and including a foreclosure
action on her home that the defendants successfully prosecuted in Pennsylvania state
court; she alleged that she was the victim of a sprawling conspiracy that involved, in
addition to the defendants, an unidentified burglar and an individual who purportedly
backed out of an agreement to harvest trees on her property.
The parties sparred repeatedly during discovery. As relevant here, on March 5,
2010, a magistrate judge granted the defendants’ motion to compel and ordered Parker to
provide the defendants with the following information: (1) receipts for and explanations
of certain damages that she claimed; (2) her federal and state tax returns for 2004–2008;
(3) the names of her prospective witnesses; and (4) the name of the Pennstar employee
1
Parker also named numerous other entities and individuals as defendants;
however, she properly served only those defendants listed above, and the District Court
therefore dismissed the action as to the other proposed defendants under Rule 4(m) of the
Federal Rules of Civil Procedure.
2
whom she allegedly contacted after obtaining a home equity loan. Parker, however, gave
the defendants only the names of her witnesses. The defendants then filed a motion to
compel Parker to supply the addresses of her witnesses so that they could be subpoenaed
for depositions. The magistrate judge granted that motion on April 13, 2010, and ordered
Parker to provide her witnesses’ addresses by April 20, 2010, but Parker did not do so.
Thus, the defendants filed two motions for sanctions: one concerning Parker’s failure to
comply with the March 5, 2010 order, and one concerning Parker’s failure to comply
with the April 13, 2010 order.
The magistrate judge scheduled a hearing on the motions for May 25, 2010. The
defendants appeared and presented evidence in support of their motions; Parker failed to
attend. Subsequently, the magistrate judge recommended that Parker’s amended
complaint be dismissed. The District Court, after considering the factors prescribed by
Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), approved and
adopted the report and recommendation and dismissed the case. Parker then filed a
timely notice of appeal.
We review the District Court’s order for abuse of discretion, Bowers v. Nat’l
Collegiate Athletic Ass’n, 475 F.3d 524, 538 (3d Cir. 2007), and evaluate the Court’s
exercise of discretion by examining how it balanced the factors set forth in Poulis. These
factors are (1) the extent of the party’s personal responsibility; (2) the prejudice to the
adversary caused by the failure to comply with court orders; (3) a history of dilatoriness;
(4) whether the conduct of the party was willful or in bad faith; (5) the effectiveness of
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sanctions other than dismissal; and (6) the meritoriousness of the claim or defense.
Poulis, 747 F.2d at 868.
On appeal, Parker has not meaningfully challenged the District Court’s order.
Instead, she devotes the bulk of her brief to asking us to reverse the state court’s
foreclosure order. Putting aside the question of whether the federal courts have the
authority to consider the merits of such a claim, see D.C. Court of Appeals v. Feldman,
460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), it is simply
irrelevant to the crucial issue of whether the District Court erred in dismissing her
amended complaint.2
On performing our own independent review of the Poulis factors, we conclude that
the District Court did not abuse its discretion. Parker was proceeding pro se, and was
thus fully responsible for her own conduct. See Briscoe v. Klaus, 538 F.3d 252, 258 (3d
Cir. 2008). Further, Parker’s conduct prejudiced the defendants both by impeding their
efforts to prepare their case and also by requiring them to file unnecessary motions to
enforce the magistrate judge’s orders. See Ware v. Rodale Press, Inc., 322 F.3d 218, 222
(3d Cir. 2003). Parker also engaged in a pattern of dilatory conduct. See Poulis, 747
F.2d at 868. As detailed above, she repeatedly ignored the defendants’ discovery
requests, did not comply with the magistrate judge’s orders, and even failed to attend the
2
The appellees filed a motion to strike Parker’s brief, and Parker responded
with a motion to strike the appellees’ brief. Both motions are denied. We also note that
in the District Court, Parker filed a motion for appointment of counsel, which the Court
denied. Because Parker has not challenged that order on appeal, we will not consider it.
4
hearing that the magistrate judge scheduled. (This was her second improper absence:
she had also previously failed to attend a settlement conference.)
We also agree with the District Court that Parker’s conduct was willful. She
flouted the magistrate judge’s orders, and offered only unpersuasive justifications for her
conduct. As the magistrate judge explained, ―[t]he plaintiff has since provided excuse
after excuse for failure to comply with orders of the court. The plaintiff is no longer
credible.‖ We also observe that Parker seemed to engage in gamesmanship concerning
legal mail: she apparently refused to provide her address to the defendants and would
accept messages only by email, but enabled certain email settings that (she claimed)
occasionally prevented her from receiving messages sent by the defendants. It was thus
reasonable for the District Court to conclude that Parker had behaved willfully. See, e.g.,
Emerson v. Thiel Coll., 296 F.3d 184, 191 (3d Cir. 2002).
The final Poulis factor — the meritoriousness of the claims — also supports the
District Court’s order. While we express no opinion as to whether dismissal under Rule
12(b)(6) or summary judgment would have been appropriate, we note that Parker relies in
large part on conclusory statements and unfounded speculation. These types of
allegations are typically insufficient to state a claim. See, e.g., Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009). For example, many of her claims are premised on her allegation
that ―John Doe‖ burglarized her home; however, beyond her conjecture, she has provided
no basis to connect the burglary to any of the defendants. Her RICO allegations are
similarly ill-developed. Moreover, certain defenses are also apparent: for instance,
5
Parker has failed to allege that the defendants ―act[ed] under color of state law,‖ which is
required for her § 1983 claims. Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993)
(internal quotation marks omitted). We thus find no error in the District Court’s
conclusion that this factor also militated in favor of dismissal.
In light of the fact that at least five of the six Poulis factors support the District
Court’s decision to dismiss the amended complaint,3 we conclude that the Court did not
abuse its discretion. See Poulis, 747 F.2d at 870. Accordingly, we will affirm the
District Court’s order dismissing Parker’s amended complaint.
3
The District Court concluded that the fifth factor did not support dismissing
the action because, while there was evidence that Parker had limited assets, it was not
clear from the record that she would not be able to afford to pay a monetary sanction. Cf.
Briscoe, 538 F.3d at 263.
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