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Mosby v. Wenger


April 7, 2000


The opinion of the court was delivered by: Simandle, District Judge



This court is called upon to redress a situation in which a plaintiff, representing himself but also consulting with counsel, has failed to meet his obligations under the rules for discovery, disclosure, and attendance at court, to the detriment of those against whom he has filed the case.

This case was filed by the plaintiff, Pro Se, George S. Mosby, M.D., in the United States District Court for the District of Columbia on October 16, 1998. By Order of that Court filed on December 22, 1998, this case was transferred to the District of New Jersey, where it has been managed by United States Magistrate Judge Joel B. Rosen. In the complaint, Dr. Mosby alleges that he was employed by a defendant as a radiation oncology resident at Cooper Medical Center in Camden, New Jersey, from September 26, 1994 until September 26, 1997, at which time he completed and graduated from the three-year residency program. He alleges that the defendants made defamatory statements to his new employer on or about October 17, 1997, and that by reason of those statements, his employment with the University of West Virginia as a radiation oncologist was terminated on May 28, 1998.

Plaintiff alleges he is a citizen of the District of Columbia, and that the various defendants are citizens of Pennsylvania and New Jersey, such that this court has subject matter jurisdiction under diversity of citizenship, 28 U.S.C. § 1332.

Due to Dr. Mosby's failure to timely and adequately prosecute his case in this court, there has been an unusual degree of difficulty in moving this case forward. This history is recited in the Order to Show Cause (filed September 28, 1999) which directed Dr. Mosby to appear and show cause on October 15, 1999 why his case should not be dismissed for failure to prosecute. Dr. Mosby attended the initial conference before Judge Rosen on May 4, 1999, and at that conference, Judge Rosen put the schedule into place, including a discovery deadline of August 31, 1999, and he scheduled a status conference for September 21, 1999 at 10:00 A.M. On September 21, 1999, Judge Rosen convened the conference, at which defense counsel appeared but plaintiff Mosby failed to appear. Dr. Mosby had made no request to postpone the conference, nor did he give any reason for his non-appearance.

At the hearing on October 15, 1999, Dr. Mosby appeared, as did Gary Lesneski, Esquire, on behalf of the Cooper Hospital defendants, and Deputy Attorney General Lisa Tichauer Wahler participated in the hearing by telephone.

Dr. Mosby's response to the Order to Show Cause included a "Motion for Continuance of the Status Conference and Discovery Deadline or in the alternative a Dismissal Without Prejudice." The Cooper defendants and the defendant University of Medicine and Dentistry of New Jersey ("UMDNJ") opposed the further continuation of this case. Mr. Lesneski's letter of October 13, 1999 pointed out that Dr. Mosby knew of the obligations imposed by Judge Rosen's scheduling order and directives at the initial conference on May 4 and that he deliberately ignored them. On June 3, Mr. Lesneski provided Dr. Mosby with the Cooper defendants' initial disclosures and requested that Dr. Mosby provide written discovery including his transmittal of the initial disclosures. Mr. Lesneski sent this by certified mail, which Dr. Mosby signed for on June 8, 1999. Dr. Mosby never responded to that letter, nor did he direct Mr. Lesneski to speak with any attorney about it. Mr. Lesneski followed up in a letter on July 16, again requesting a response. Once again, Dr. Mosby signed for that letter, certifying receipt on August 3, 1999. Again, Dr. Mosby made no response nor did he suggest that an attorney was handling his case.

Similarly, Deputy Attorney General Wahler, in a letter dated October 14, 1999, urged the court to dismiss this case for lack of prosecution. The defendant UMDNJ sent discovery to Dr. Mosby on July 7, 1999 and has received no response. DAG Wahler also indicated that such discovery was essential in order to learn how the plaintiff is alleging that UMDNJ is somehow connected to this defamation, since the allegation in the complaint are silent on that subject.

At the hearing, Dr. Mosby essentially indicated that he had been too busy to attend to these duties, since he is working at various jobs in various places. He admitted that he has answered no discovery and he claimed to lack sufficient resources, despite being employed as a radiologist, to pursue this litigation. The court found these excuses unavailing, and indicated its tentative findings on the record on October 15, 1999, inclined toward dismissing this case. It was then that Dr. Mosby indicated, for the first time, that he believed there is a signed contingent fee agreement between himself and the law firm of Anapol, Schwartz, Weiss & Cohan. He blamed his inattentiveness to this litigation upon the law firm, somehow believing that the law firm would be entering an appearance on his behalf and would take care of these many litigation and discovery obligations. The court directed Dr. Mosby to furnish all documents evidencing his reliance upon the law firm, and to submit the information to the court and to Mr. Lesneski and DAG Wahler within 14 days of the date of the Order, which was filed October 20, 1999.

Since the hearing date, the court received the following information. By letter dated November 2, 1999, Bernard W. Smalley, Esquire, from the Anapol, Schwartz firm, confirmed that Mosby and the firm had discussions during the period in question from January 20, 1999 (when he first met with Dr. Mosby) through February and March, when he gathered additional information, through May, 1999, when the firm undertook a "comprehensive review of the law in this area", and another meeting with Dr. Mosby on June 24, 1999. A contingent fee agreement was signed by Dr. Mosby on June 24, 1999, but it was not signed by the law firm. In August, 1999, the firm undertook additional research, concluding on August 18, 1999 that the firm would be unable to undertake Dr. Mosby's representation. The court has reviewed (in camera) a copy of Mr. Smalley's August 18, 1999 letter to Dr. Mosby advising Dr. Mosby of the reasons why the firm would not be undertaking his representation, and offering to make himself available to assist Dr. Mosby in drafting answers to the discovery requests during the next two weeks. There is no indication in the file that Dr. Mosby then requested the firm's assistance in helping him to answer the interrogatories and to provide the disclosures required by the rules, nor did Dr. Mosby ever request, so far as the file discloses, that the firm reconsider its decision. This court will not further disclose the law firm's work product or communications between the attorneys and the potential client because it is not essential to the fair consideration of the parties' respective positions here. It suffices to note that, after seven months of efforts, by August 18, 1999, it became clear to Dr. Mosby that the law firm would not be representing him and that he faced the necessity of responding to the overdue discovery requests and seeking extensions of time if he could show good cause. Against this background, and with more than a month's notice that his potential attorneys would not be attending of the September 21, 1999 conference before Judge Rosen, Dr. Mosby did nothing.

On November 30, 1999, Mr. Smalley again wrote to the court to add a clarification to his letter of November 2, 1999. That letter (reviewed in camera) only clarifies the nature of one of the legal questions researched by the firm and is not pertinent to the issues of Dr. Mosby's failure to prosecute the present case.

Dr. Mosby argued, in his opposition to the Order to Show Cause filed October 12, 1999, that counsel had his case under review through the last week of August 1999 and that Dr. Mosby was busy at that time preparing for his September 15, 1999 examination by the American Board of Radiology in Houston, Texas. Although he returned from Houston on September 20, he stated that he had no opportunity to review the status of the case prior to the status conference scheduled on September 21, 1999.

When a court is considering the dismissal of a case for failure to comply with discovery obligations, it must consider various legal and equitable factors, as prescribed by precedents including Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). In Poulis, the court outlined several factors which must be weighed in the trial court's discretion, which include: (1) The extent of the party's personal responsibility for non-compliance; (2) prejudice to the adversary; (3) history of dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) effectiveness of alternative sanctions; and (6) the meritoriousness of the claim to be struck. Poulis, 747 F.2d at 867-68. Not all of these six factors need to be met in order for a district court to find that dismissal is warranted. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988), cert. denied, 488 U.S. 1005 (1989). The court weighs these six factors as follows:

First, I find that Dr. Mosby is personally responsible for non-compliance. He was aware of these obligations and took no steps whatsoever to communicate with the court or with defense counsel, nor did he appear at the September 21st conference nor did he ask for that conference to be postponed. His reliance upon any assistance from the law firm that he was consulting was questionable, since they have never agreed to undertake his representation, and it was groundless after August 18, 1999. His failures to comply and to take prudent and courteous measures was unreasonable. The record does confirm, however, the truthfulness of Dr. Mosby's statements that throughout early 1999, from January until August, he was consulting with counsel, in a serious way, about their taking his case.

Second, plaintiff has prejudiced his adversaries in several ways. The defendants have been required to retain counsel and to defend themselves in this defamation action and to expend money in attending to their obligations, including attending the conference on September 21 and the hearing on October 15, all due to Dr. Mosby's conduct. They have further been prejudiced by Dr. Mosby's failure to have provided any discovery that would explain the basis of his allegations against the defendants. While a claim of defamation may be pled generally in a short plain statement consistent with Rule 8, Fed. R. Civ. P., under which detailed factual pleading is generally not required, see Palladino ex rel. U.S. v. VNA of Sourthern N.J., 68 F.Supp. 2d 455, 475 (D.N.J. 1999), the sufficiency of Dr. Mosby's case will be tested by the rigorous requirements of New Jersey's law of defamation, and complete discovery from plaintiff will be required to ascertain the factual and legal bases for his claim. These elements include the particular false defamatory words, their utterer, and the fact of publication. See, e.g., Printing Mart-Morristown v. Sharp Electronics, 116 N.J. 739, 767 (1989). By providing no discovery, Dr. Mosby's claim has still not been factually articulated, to the prejudice of defendants.

Third, there has been a history of dilatoriness and excuse-making by the plaintiff. While Dr. Mosby may have felt himself subjectively to be too busy to attend to his case, especially during the period from late August until September 20, 1999 when taking the radiology boards in Texas, his failure to have afforded the court and counsel the courtesy of communicating his needs for additional time is unexplained.

Fourth, it is difficult to determine whether this conduct has been willful or in bad faith. On the one hand, he had a basis for hoping that counsel would come into this case to represent him, and the law firm indeed undertook some rather strenuous examinations of the law and the facts from January, 1999 through mid-August, 1999, as outlined above. This is not a situation where Dr. Mosby filed the complaint and walked away from his case. "Behind the scenes," Dr. Mosby was conferring with prospective counsel and seeking their advice. On the other hand, Dr. Mosby's silent failure to meet any of his obligations speaks loudly to his view toward taking personal responsibility for the case he has filed. He was, of course, personally responsible for failing to comply with Judge Rosen's order to appear on September 21, and it is recognized that non-compliance with a court order is considered willful under Rule 37 when the court's order has been clear, when the party has understood it, and when non-compliance is not due to factors beyond the party's control. See Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 221 (1958). Here, Judge Rosen's order was clear and Dr. Mosby's refusal to attend the conference on September 21 is not excusable.

Fifth, the court must consider the effectiveness of alternative sanctions, less than dismissal of this case. Since the prejudice to these defendants stems principally from their expenditures of time and money in meeting litigation obligations, and wasting time dealing with Dr. Mosby's many dissembling excuses, one obvious lesser sanction would be an order requiring Dr. Mosby to pay the reasonable expenses and attorney's fees incurred by defendants related to Dr. Mosby's non-compliance with discovery and court attendance obligations. Such a sanction would impose upon Dr. Mosby the realization that his conduct cost his adversaries money and that these costs are passed onto him where he has conducted himself unreasonably. Such a sanction could be made a condition of the continuation of this lawsuit. Similarly, where no prior sanction has been imposed in this case, the notion of affording to this pro se plaintiff one last opportunity to comply with court-ordered discovery and other obligations is perhaps a reasonable alternative. Likewise, dismissal of the case without prejudice would be a lesser sanction, but would simply postpone the parties' respective obligations until the time when plaintiff refiles his complaint. Also, to the extent that his defamation claim would be barred by the passage of the one-year statute of limitations for filing such a complaint, a dismissal without prejudice could extinguish his cause of action very shortly after such a dismissal, under the time line of the filing of this case.

Sixth, the court is not in a position to assess the meritoriousness of the defamation claim. It is presently unclear what the defamatory statements were, nor is it clear whether such statements, if uttered, were untrue. Plaintiff has not given this court confidence that he has a meritorious cause of action, however, because he has not provided any discovery or other back-up information behind his complaint. Further, as to the defendant UMDNJ, the complaint is silent about its precise role, if any, in this defamation.

Taking all of these considerations into account, I have reached the conclusion that the sanction of dismissal with prejudice would not be appropriate at this time, although I do not rule it out for the near future. I have determined instead to enter an order which will compel Dr. Mosby to provide all required disclosures and responsive answers to the discovery requests which have been served by both groups of defendants, which he must responsively answer and certify and serve within 14 days of today's date. If he fails to provide these discovery responses and disclosures in a timely and complete fashion, this case will again be subject to dismissal with prejudice for failure to obey a court order. Furthermore, I have determined to shift the defendant's costs incurred for attorney's fees in connection with Dr. Mosby's non-feasance in this litigation. It is important that the defendants be made whole for attorney's fees and other expenses which they reasonably expended and which were wasted in connection with the following services of counsel. These services include the efforts of Mr. Lesneski in serving discovery and in following up on the plaintiff's failure to provide discovery, as well as Mr. Lesneski's attendance at the conference before Judge Rosen on September 21, 1999, Mr. Lesneski's preparation of his letter of October 13, 1999, his attendance at the hearing on October 15, 1999, and Mr. Lesneski's preparation of a letter on or about November 12, 1999 (misdated October 13, 1999) responding to the post-hearing submissions. Also, the State of New Jersey on behalf of UMDNJ, may recover the reasonable cost of DAG Wahler's services in connection with her service of discovery and any follow-up efforts to obtain discovery, her attendance at the September 21, 1999 conference before Judge Rosen, her submission of a letter dated October 14, 1999, and her participation in the October 15, 1999 hearing.

Mr. Lesneski and DAG Wahler may submit their affidavits of costs and fees, itemized appropriately, filing same with the Clerk of Court and serving Dr. Mosby by overnight or express mail, within 14 days of today's date. Dr. Mosby will have an opportunity, within 10 days after the mailing of such affidavits to him, to file any opposition as to the reasonableness of the amounts claimed, with the Clerk of the Court and with a copy of such opposition to Mr. Lesneski and DAG Wahler. The court will then determine the amount of this fee-shifting sanction without further hearing. Ordinarily, such a sanction will be required to be paid by Dr. Mosby to defense counsel within 30 days after the entry of the Order determining the amount of such costs and fees, unless Dr. Mosby, in his opposition, shows good cause why periodic payments extending over a greater period of time should be permitted due to financial hardship.

Next, if defense counsel fails to timely receive the required disclosures and discovery responses from Dr. Mosby under the terms of the accompanying order, defense counsel may certify same in an affidavit to this court, and this case will be subject to dismissal with prejudice at that time.

Finally, in the event this case continues, I have scheduled a status conference before Judge Rosen on Friday, May 12, 2000 at 2:00 P.M. in Camden. Any remaining discovery issues shall be brought to Judge Rosen's attention at that time.

The accompanying Order will be entered, compelling plaintiff George Mosby to provide responsive answers to all discovery requests *fn1 and to provide all early disclosures *fn2 required by Rule 26(a) of the Federal Rules of Civil Procedure within 14 days of today's date, and imposing, as a sanction for failure to prosecute this case, an obligation upon Dr. Mosby to reimburse defendants for the reasonable costs and fees incurred by defendants arising from plaintiff's failure to abide by court processes and rules, as detailed herein.

JEROME B. SIMANDLE U.S. District Judge

cc: Honorable Joel B. Rosen, U.S. Magistrate Judge


This matter is before the court upon the Order to Show Cause (filed September 28, 1999) and upon the Court's order (filed October 20, 1999); and

For reasons stated in the Memorandum Opinion of today's date;

IT IS this day of April, 2000, hereby

ORDERED that plaintiff, George Samuel Mosby, M.D., shall serve sworn responsive answers to all discovery requests previously served upon him by the Cooper Hospital defendants and by defendant UMDNJ, to be delivered to defense counsel within fourteen (14) days of today's date; and

IT IS FURTHER ORDERED that plaintiff Mosby shall deliver to defendants' counsel, within fourteen (14) days of today's date, full and complete initial disclosures required by Rule 26(a)(1)(A),(B)&(C); and

IT IS FURTHER ORDERED that if plaintiff fails to comply with the above-stated directives, and upon certification of such failure by affidavit of defense counsel, the complaint herein will be dismissed with prejudice for lack of prosecution; and

IT IS FURTHER ORDERED that a discovery sanction is hereby imposed against plaintiff Mosby pursuant to Rules 16(f), 37(a)(4), and 37(b)(2), and 37(c), Fed. R. Civ. P., in an amount equal to the reasonable attorneys fees and expenses incurred by the Cooper Hospital defendants and by defendant UMDNJ due to plaintiff's inattentiveness and failures to provide required disclosures and discovery, and for this purpose, defense counsel shall submit their affidavits of services and expenses specifying all relevant services and expenses for which reimbursement is sought (including services for preparing these fee applications) within fourteen (14) days hereof, serving plaintiff by overnight or express mail. Any objection by plaintiff to the amounts of such fees for services and expenses must be filed by plaintiff with the Clerk of Court within ten (10) days after the date on which the affidavit, to which objection is raised, was sent to plaintiff, and a copy of any such objection must also be delivered at the same time to defense counsel. If no objection is timely received, the affidavits for fees will be deemed unopposed. The court will determine the amounts of the sanctions upon considering all timely submissions, and without further hearing; and

IT IS FURTHER ORDERED that plaintiff Mosby and defense counsel appear for a conference before U.S. Magistrate Judge Joel B. Rosen on Friday, May 12, 2000 at 2:00 P.M. at Judge Rosen's chambers in Camden.

JEROME B. SIMANDLE U.S. District Judge

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