Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-17-2005
Clarke v. Secretary Veterans
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4432
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"Clarke v. Secretary Veterans" (2005). 2005 Decisions. Paper 395.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4432
LILIETH A. CLARKE
Appellant
v.
*JAMES R. RICHARDSON, SECRETARY OF VETERANS AFFAIRS,
UNITED STATES VETERANS ADMINISTRATION
*(Substituted pursuant to F.R.A.P. 43(c))
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No: 01-cv-0111)
District Judge: The Honorable Gary L. Lancaster
Submitted pursuant to LAR 34.1(a)
on September 26, 2005.
Before: RENDELL, FUENTES,
and GARTH, Circuit Judges
(Filed: October 17, 2005)
____________________
OPINION OF THE COURT
_____________________
Fuentes, Circuit Judge.
The Appellant, Lilieth A. Clarke (“Clarke”), filed two complaints against her
former employer, the United States Veterans Administration (the “Veterans
Administration”), alleging employment discrimination. The two cases were eventually
consolidated. On or about June 12, 2002, Clarke’s counsel withdrew from the cases.
Clarke repeatedly asked, and was granted, additional time to obtain new counsel, but
failed to obtain new counsel for approximately two years. After Clarke failed to appear
for her deposition in violation of the District Court’s Order of July 2, 2004, the District
Court granted the Veterans Administration’s Motion to Dismiss Pursuant to Rule 41(b),
and dismissed the action in its entirety. Clarke now appeals this dismissal. We affirm.
I.
Because we write only for the parties, we recite only the essential facts.
Clarke, a nurse of African-Caribbean origin, was an employee of the Veterans
Administration from 1981 until 1999. In 1998, Clarke filed an employment discrimination
suit against the Veterans Administration. In July 1999, Clarke’s counsel withdrew from
the representation. Clarke proceeded pro se, and retained new counsel in November
2000, two months before trial. On January 25, 2001, after a trial, a jury returned a verdict
in Clarke’s favor and awarded her $250,000.
Clarke, through her new counsel, filed two additional complaints against the
Veterans Administration on January 16, 2001 and June 14, 2001, alleging employment
discrimination and retaliation. The District Court consolidated the two cases on
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November 20, 2002.
On June 14, 2002, the trial court permitted Clarke’s counsel to withdraw from the
cases. Clarke did not object. The District Court allowed Clarke until July 29, 2002, to
have new counsel enter an appearance, or else the District Court would consider her as
proceeding pro se. (Order dated Jun. 14, 2002, Appellant’s Appendix at 38a.) On July
25, 2002, Clarke moved for an additional 60 days to secure new counsel. The District
Court granted the motion, and allowed her until September 30, 2002, to retain counsel.
(Order dated Jul. 30, 2002, Appellant’s Appendix at 60a.) On or about September 27,
2002, Clarke requested an additional 30 days to retain counsel. The District Court
granted the motion, and allowed her until Oct. 31, 2002, to retain counsel. (Order dated
Oct. 1, 2002, Appellant’s Appendix at 66a.) Clarke did not request additional time until
January 21, 2003, when she requested two additional months to retain new counsel. The
District Court granted the motion, and allowed Clarke until March 31, 2003, to retain
counsel. (Order dated Feb. 3, 2002, Appellant’s Appendix at 55a.) On January 27, 2003,
the District Court issued an Order stating that discovery in the case would close on May
16, 2003, and setting due dates for pretrial statements in June. (Order dated Jan. 27,
2003, Appellant’s Appendix at 74a.)
When Clarke could not meet the deadlines for retaining counsel and submitting a
pretrial statement, the District Court provided Clarke with a delinquency notice and
extended the deadline. On June 30, 2003, Clarke, unable to meet the new deadline,
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requested an additional 30 days to retain new counsel and file her pretrial statement. The
District Court granted Clarke an additional 90 days, allowing her until September 30,
2003, to retain counsel, and explicitly stated that no further extension would be granted.
(Order dated Jul. 2, 2002, Appellant’s Appendix at 96a.) The District Court extended the
deadlines for the filing of Clarke’s and the Veterans Administration’s pre-trial statements
to October 20, 2003, and December 1, 2003, respectively. (Id.) On October 20, 2003,
Clarke filed her pretrial statement, in which she indicated that she had been unable to
attain new counsel.
On March 30, 2004, the District Court granted the Veterans Administration’s
motion for permission to take Clarke’s deposition out of time, allowing the Veterans
Administration until April 30, 2004, to take Clarke’s deposition. (Order dated Mar. 30,
2004, Appellant’s Appendix at 88a.) On April 15, 2004, the Veterans Administration
noticed Clarke’s deposition for April 22, 2004. (Appellant’s Appendix at 113a.) Clarke
informed the Veterans Administration that she was unable to be deposed at that time, and
gave the Veterans Administration her work hours to schedule a different time. The
Veterans Administration sent her a second notice of deposition on April 21, 2004,
scheduling the deposition for April 28, 2004. (Id. at 112a.) On April 22, 2004, Clarke
faxed to the Veterans Administration a motion requesting that the District Court defer her
deposition until after 1 p.m. on May 14, 2004. (Id. at 118a) Upon receipt of the fax, the
Veterans Administration agreed to the postponement, and requested that Clarke provide
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the Veterans Administration with a list of potential dates and times. (Id. at 131a.) Clarke
did not respond.
On April 30, 2004, the Veterans Administration moved for more time in which to
depose Clarke, moved to compel Clarke to appear for deposition on May 24, 2004, and
sent Clarke a notice of deposition for that date. (Id. at 130a, 135a, 139a. ) On the
morning of May 24, 2004, Clarke spoke by telephone with an administrative assistant to
the Veterans Administration’s counsel. Clarke informed the assistant that she had
retained counsel, that Clarke’s new counsel would contact the Veterans Administration to
arrange a date to reschedule Clarke’s deposition, but that Clarke would appear for the
deposition that day, although possibly later than the scheduled time. The Veterans
Administration received a fax later that morning from Lisa Lyons Ward, Esq. (“Ward”)
representing that Clarke had retained her as counsel and requesting that the Veterans
Administration reschedule the deposition for the next week. The Veterans Administration
was unable to contact either Clarke or Ward by phone, and Ward had not entered an
appearance as Clarke’s counsel. Clarke arrived for deposition without an attorney and
requesting a postponement, and the Veterans Administration refused to reschedule.
Clarke refused to answer any substantive questions.
On June 4, 2004, the Veteran’s Administration filed its second motion to compel
Clarke’s appearance at her deposition noticed for June 15, 2004. (Id. at 166a.) The June
15, 2004 deposition did not take place. Although Ward had not entered an appearance,
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the Veterans Administration attempted to contact her to schedule a deposition, with no
success.
On July 2, 2004, the District Court granted the Veterans Administration’s motion
to compel, ordering Clarke to appear no later than July 30, 2004 for deposition. (Id. at
186a.) The Veterans Administration sent out a notice of deposition scheduling Clarke’s
deposition for July 21, 2004. (Id. at 206a.) Clarke did not appear for deposition on that
date. At no time has Ward entered a notice of appearance.
On July 23, 2004, the Veterans Administration moved to dismiss Clarke’s action
for failure to prosecute. (Id. at 226a.) Following Clarke’s responsive pleading, the
District Court granted the motion and dismissed the action. (Memorandum and Order of
October 20, 2004, Appellant’s Appendix at 1a.) Clarke timely appealed.
II.
This Court reviews a district court’s ruling on a motion to dismiss pursuant to
Federal Rule of Civil Procedure 41(b) for abuse of discretion. See Adams v. Trustess of
the New Jersey Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 870 (3d Cir.
1994). An abuse of discretion exists “only when the judicial action is arbitrary, fanciful,
or unreasonable, or when improper standards, criteria, or procedures are used.” Evans v.
Buchanan, 555 F.2d 373, 378 (3d Cir. 1977).
In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984),
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this Court set forth six factors that a district court must consider before dismissing an
action for failure to prosecute: 1) the extent of the nonmoving party’s personal
responsibility; 2) the prejudice to the moving party 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 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.
Here, the District Court’s application of these factors was not an abuse of
discretion. The District Court considered each factor delineated in Poulis and concluded
that dismissal was proper. The District Court noted that, unlike a situation in which a
dismissal is predicated upon an attorney’s error, the plaintiff here was pro se and directly
responsible for her actions and inaction in the litigation. (Order dated October 20, 2004,
Appellant’s Appendix at 4a-5a.) Moreover, although failure to prosecute would result in
the defendant indirectly prevailing, the district court correctly acknowledged that the
defendant has an interest in having litigation brought to an end, and was prejudiced by the
expense and inconvenience in the plaintiff’s continued delay and failure to appear for
deposition. (Id. at 5a.) See Ware v. Rodale Press, Inc., 322 F.3d 218, 222-24 (3d Cir.
2003) (finding prejudice to defendant in plaintiff’s delay and failure to comply with
requests for discovery). As the District Court noted, the plaintiff had a history of
dilatoriness in her failure to take any substantial action, her repeated requests for delays,
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and refusal, in violation for a court order, to be deposed. (Id. at 5a-6a.) The District
Court’s conclusion that the plaintiff was acting willfully or in bad faith was based upon
the plaintiff’s failure to respond to the court’s order compelling her to appear for
deposition, her repeated failure to retain new counsel, and the fact that the plaintiff,
having recently and successfully brought a similar case, was not unfamiliar with the
judicial processes involved. (Id. at 6a.) Given that the plaintiff would likely be unable to
pay monetary sanctions, the Court concluded that there were no viable alternative
sanctions. (Id. at 6a-7a.) Although the plaintiff now argues that the District Court should
have used civil or criminal contempt as an alternative sanction, this argument is without
merit. Civil contempt is used as a coercive measure, and is not appropriate to coerce a
plaintiff into proceeding with a case that she voluntarily commenced. Criminal contempt
is a punitive sanction that would be inappropriately harsh for a failure to prosecute.
Finally, although the District Court found that the plaintiff’s claim was not frivolous, this
consideration does not outweigh the other Poulis factors, which support the District
Court’s decision to dismiss the case. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988)
(stating that not all Poulis factors need be met in order for district court to grant motion to
dismiss pursuant to Rule 41(b)). In the end, the District Court was more than fair and
considerate of Clarke’s many scheduling problems.
For the reasons stated in the District Court’s well-reasoned and thorough opinion,
we find that the motion to dismiss was properly granted. We therefore affirm.
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