United States District Court, D. New Jersey
the Court is an appeal by pro se Plaintiff Pascual
Perez (“Plaintiff”) of the final decision of the
Commissioner of Social Security (the
“Commissioner”) denying Plaintiff's
application for Disability Insurance Benefits and
Supplemental Security Income under Titles II and XVI of the
Social Security Act, respectively. On February 2, 2017, the
Commissioner filed the Administrative Record (D.E. No. 26),
which constitutes an Answer under this District's local
rules. See L. Civ. R. 9.1(c)(1). The
following day, on February 3, 2017, the Court issued a Letter
Order informing the parties of the applicable Local Civil
Rules and ordering Plaintiff to file a brief in support of
his appeal “no later than April 18, 2017.” (D.E.
No. 27, Letter Order). The Court noted that
“Plaintiff's failure to comply with the applicable
deadline will result in termination of this appeal.”
(Id.). Plaintiff did not comply with the Court's
Letter Order. In light of Plaintiff's pro se
status, on August 8, 2017, the Court sua sponte
granted Plaintiff an extension to file his supporting brief
until August 28, 2017. (D.E. No. 28, Order). Again, the Court
warned Plaintiff that “failure to comply with the
Court's sua sponte extension will result in
termination of this appeal.” (Id. at 2). To
date-over eight months since the filing of the
Commissioner's Answer-Plaintiff has not filed a brief in
support of his appeal, nor otherwise responded to the
Court's Orders. Accordingly, for the reasons set forth
below, Plaintiff's appeal is DISMISSED without
prejudice for failure to prosecute.
Rule of Civil Procedure 41(b) provides, in relevant part,
that “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.”
This Rule has been interpreted to permit a district court to
dismiss an action sua sponte. See Shields v. Comm'r
of Soc. Sec., 474 F. App'x 857, 858 (3d Cir. 2012)
(“Under Federal Rule of Civil Procedure 41(b), a
district court may dismiss an action sua sponte if a
plaintiff fails to prosecute his case.”). Dismissal for
failure to prosecute may be appropriately invoked only after
analyzing several factors, including: (1) the extent of the
party's personal responsibility; (2) the prejudice to the
adversary caused by the plaintiff's conduct; (3) the
history of dilatoriness; (4) whether the conduct of the party
or the 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. Poulis v. State Farm Cas.
Co., 747 F.2d 863, 868 (3d Cir. 1984). No single
Poulis factor is determinative, and dismissal may be
appropriate even if some of the factors are not met. See
Shields, 474 F. App'x at 858; Mindek v.
Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).
the bulk of the Poulis factors weigh in favor of
dismissing this case without prejudice. In the absence of any
evidence to the contrary, the Court finds Plaintiff's
conduct in delaying this case is attributable to him
personally. See Shields, 474 F. App'x at 858
(finding that plaintiff, “who is proceeding pro se, is
personally responsible for failing to prosecute his
case”). Plaintiff has had over eight months to explain
to the Court the reasons for his failure to file his
supporting brief or to request an extension of his deadline,
but he has not done so. Both Plaintiff's initial failure
to file his supporting brief pursuant to the Court's
February 3, 2017 Letter Order and subsequent failure to
comply with the Court's August 9, 2017 Order demonstrate
that Plaintiff has abandoned this case. See Wynne v.
Colvin, No. 15-7984, 2017 WL 599415, at *2 (D.N.J. Feb.
14, 2017) (finding that plaintiff's initial failure to
file supporting brief and subsequent failure to comply with
court's order demonstrated that plaintiff had abandoned
there have only been two incidents of dilatory conduct in
this case thus far, for the purposes of the Poulis
balancing test, there is no history of dilatoriness in this
case. See Briscoe v. Klaus, 538 F.3d 252, 261 (3d
Cir. 2008) (“[C]onduct that occurs one or two times is
insufficient to demonstrate a ‘history of
dilatoriness.'”). Nonetheless, the Court finds
Plaintiff's dilatoriness in filing his supporting brief
has caused prejudice to the Commissioner, who, pursuant to
Local Civil Rule 9.1(e)(2), can file a responsive brief only
after receipt of Plaintiff's supporting brief. See
Wynne, 2017 WL 599415, at *2 (finding that
plaintiff's failure to file brief prejudiced
Commissioner). Thus, the Commissioner has been unable to
oppose Plaintiff's appeal.
considering the effectiveness of an alternative sanction, the
Court finds that, based on Plaintiff's unresponsiveness
to both Court Orders and his apparent abandonment of the
case, alternative sanctions would be futile. Cf.
Wieszalski v. Colvin, No. 12-0733, 2014 WL 1153737, at
*2 (M.D. Ala. Mar. 20, 2014) (dismissing social security
appeal because, by ignoring previous court orders, “the
Court ha[d] no reason to believe that Plaintiff will . . .
comply with any further orders this Court may enter imposing
any lesser sanction”).
in considering the sixth Poulis factor, the Court
does not have sufficient grounds at this stage of the
proceedings to evaluate the meritoriousness of
Plaintiff's claims because Plaintiff has not filed a
supporting brief explaining the basis for his appeal.
these reasons, the Court finds that, on balance, the
Poulis factors weigh in favor of dismissing this
case without prejudice. An appropriate Order
accompanies this Memorandum Opinion.
 Pursuant to Local Civil Rule
9.1(e)(1), a plaintiff in a social security matter must file
a brief within 75 days of receipt of the Answer.
See Shields, 474 F. App'x
at 858 (analyzing Poulis factors and affirming
sua sponte dismissal of pro se social
security appeal for failure to prosecute); see also Enix
v. Comm'r of Social Sec., 461 F. App'x 861, 864
(11th Cir. 2012) (affirming dismissal of social security
appeal due to plaintiff's failure to file a brief
challenging the ALJ's decision despite two orders
instructing plaintiff to do so); Tripp v. Comm'r of
Social Sec. Admin., 471 F. App'x 631, 632 (9th Cir.