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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 ...

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