The opinion of the court was delivered by: Hughes, U.S.M.J.
This matter is before the Court upon the Motion of Defendant Lucent Technologies, Inc. ("Defendant") to Dismiss the Complaint pursuant to Fed. R. Civ. P. 37 [Dkt. entry no. 13], returnable October 15, 2007. Plaintiff filed opposition to the motion to dismiss on October 11, 2007.
Defendant asks that this case be dismissed because at this point in the litigation, pro se Plaintiff has failed to attend her own deposition on three different occasions. The Court reviewed the written submissions of the parties and considered the matter pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, Plaintiff's case is administratively terminated.
On around October 19, 2006, pro se plaintiff Dana-Sorana Alexe filed this lawsuit. (Certification of Peter F. Berk, ¶ 3). On or about May 31, 2007, Defendant issued a deposition notice for Plaintiff to appear for a deposition on July 14, 2007 at the Courthouse. Id. at ¶ 4. On July 13, Plaintiff advised the Defendant that she would not be able to appear for her deposition or two weeks thereafter because of a medical condition. Id. at ¶ 6. The parties agreed to adjourn Plaintiff's deposition until August 8, 2007, and discovery was extended until August 14, 2007 by this Court's Order. See Id. at ¶ 7.
On the morning of August 7, 2007, counsel for Defendant called Plaintiff and left a message seeking to confirm her deposition on August 8. On the same day, without providing any explanation, Plaintiff stated that she would be unable to attend her deposition. Id. at ¶ 8. In response, this Court Ordered Plaintiff's deposition for September 12, 2007 via the August 24, 2007 Amended Scheduling Order." Id. at ¶ 9.
On September 11, 2007, counsel for Defendant called Plaintiff to confirm the next day's deposition, but Plaintiff never returned Defendant's telephone call. On September 12, the morning of the scheduled deposition, Plaintiff called and notified Defendant's counsel's office that she was unable to attend her deposition. Id. at ¶ 11. At the time Plaintiff called, however, defense counsel was already en route to the deposition location. Id. The cost of this missed deposition was $125.00, in addition to Defendant's counsel's lost time. Id. at¶ 12.
The Court scheduled a conference call to take place on October 15, 2007 in light of Plaintiff's letter to the Court received on October 11, 2007, which requested that her deposition be taken in writing because of the side effects of her chemotherapy. On Sunday, October 14, at 11:02PM, Plaintiff faxed the Court indicating that she would not only be unavailable for the October 15th conference call, but also unavailable at any other time the week of October 15th, explaining that she "suddenly remembered that [she] forgot to go for [her] monthly blood tests for some time." On October 15th, Plaintiff indeed failed to participate in the conference call.
In its motion for dismissal, Defendant argued that Fed R. Civ. P 37 provides an array of remedies when a party disobeys a court order. (Def.'s Ltr. Br. at 2.) Specifically, Defendant argues that "[p]laintiff has been given multiple opportunities to appear for her deposition and has failed to do so." Id. at 3. Defendant notes that "[w]hile a pro se Plaintiff is usually afforded some latitude in the conduct of litigation, Plaintiff's failure to appear for her Court ordered deposition cannot be permitted." Id.
Federal Rule of Civil Procedure 37(b)(2)(A) provides that "[i]f a party. . . fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule of Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may issue further just orders. See, e.g., Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912, 919 (3d Cir. 1992). These orders may include the following: (i) directing the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking the pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order. . ." See Fed. R. Civ. P 37(b)(2)(A)(i)-(vii). In addition, pursuant to Fed. R. Civ. P. 37(d)(3), the Court must require the party failing to act . . . to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expense unjust."
Specifically, "dismissals with prejudice or defaults are drastic sanctions, termed 'extreme' by the Supreme Court, and are to be reserved for comparable cases." Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 867-68 (3d Cir. 1984) (citing Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)).
In Poulis, the Court set forth a six-part balancing test that the District Court should apply on determining whether dismissal is appropriate. The six factors include (1) the extent of the party's personal responsibility, (2) the prejudice to the adversary cause by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or of the attorney was willful or in bad faith; (5) the effectiveness of the sanctions other than dismissal; and (6) the meritoriousness of the claim or defense. Poulis, 747 F.2d at 868. Of course, not all of the Poulis factors need to be satisfied in order to dismiss a petition. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d ...