                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-2-2007

Hammer v. Cardio Med Prod Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1533




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Hammer v. Cardio Med Prod Inc" (2007). 2007 Decisions. Paper 1143.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1143


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                       No. 06-1533
                                    ________________

                                   NANCY HAMMER,

                                              Appellant

                                              v.

                 CARDIO MEDICAL PRODUCTS, INCORPORATED
                    ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                 (D.C. No. 01-cv-00564)
                     District Judge: Honorable William L. Standish
                      ____________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   February 8, 2007

             Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES.

                                  (Filed: May 2, 2007)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       This appeal arises from the dismissal of Appellant Nancy Hammer’s pro se

complaint for failure to prosecute due to her failure to comply with several court orders to

appear for her deposition. For the reasons that follow, we will affirm.
       The parties are familiar with the facts; thus, we will only briefly summarize them

here. Hammer was employed as a sales representative by Cardio Medical Products, Inc.

(“Cardio Medical”) until her employment was terminated on March 22, 1999. On

October 24, 2000, Hammer filed a charge of sex and age discrimination with the Equal

Employment Opportunity Commission (“EEOC”). The EEOC issued Hammer a

Dismissal and Notice of Rights, notifying her that her charge was not timely filed.

       On March 26, 2001, Hammer filed the underlying pro se complaint in the United

States District Court for the Western District of Pennsylvania pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”).

       On May 31, 2002, the District Court dismissed Hammer’s complaint after Cardio

Medical argued that Hammer had failed to timely exhaust her administrative remedies.

This Court vacated the District Court’s order of dismissal, and remanded so that the

District Court could give Hammer the opportunity to demonstrate whether equitable

tolling should apply. See Hammer v. Cardio Medical Products, Inc., 131 Fed. Appx. 829

(3d Cir. 2005).

       Upon remand, a Magistrate Judge held a status conference in July 2005 and

directed that discovery limited to the issue of equitable tolling be completed by

September 30, 2005. Thereafter, Cardio Medical scheduled a deposition of Hammer for

September 14, 2005. Hammer notified Cardio Medical that she would not be appearing

for that deposition, and Cardio Medical responded by filing a Motion to Compel. The

                                             2
Magistrate Judge granted the Motion to Compel and ordered Hammer to appear for a

deposition on September 22, 2005. Hammer did not appear for the deposition on

September 22, 2005, as ordered. The Magistrate Judge thereafter granted a second

motion to compel and ordered Hammer to appear for a deposition on September 28, 2005.

The Magistrate Judge also ordered Hammer to reimburse Cardio Medical for certain

attorneys’ fees and costs. According to an affidavit submitted by Cardio Medical’s

attorney, on September 27, 2005, Hammer advised the District Court that she would not

appear for the scheduled September 28, 2005 deposition.

       The Magistrate Judge subsequently issued another order directing Hammer to

appear for a deposition on October 18, 2005. This order warned Hammer that failure to

appear would result in sanctions, including the possible dismissal of her case. The

Magistrate Judge also set up a telephone status conference for October 17, 2005. After

this conference, the Magistrate Judge ordered Hammer to appear for a deposition on

October 27, 2005. In the order, the Magistrate Judge noted that Hammer had informed

him she could not appear on October 27, 2005, and so the Magistrate Judge also directed

Hammer “to select an alternate date during the next three weeks for the depositions . . .

Until an alternate date is selected, the current date of October 27, 2005 will stand.” The

record does not show that Hammer selected an alternate date, and Hammer thereafter

failed to appear for a deposition on October 27, 2005. Accordingly, the Magistrate Judge

ordered Cardio Medical to file a motion to dismiss for failure to prosecute. As ordered,

Cardio Medical filed a motion to dismiss. Hammer did not respond to the motion, but did

                                             3
file a motion to recuse the District Court Judge (this motion was later denied).1 The

Magistrate Judge recommended granting Cardio Medical’s motion to dismiss after

conducting the six-factor inquiry set forth in Poulis v. State Farm Fire & Casualty Co.,

747 F.2d 863, 868 (3d Cir. 1984). The District Court subsequently granted the motion to

dismiss, and adopted the Magistrate Judge’s report and recommendation as its opinion.

Hammer filed a timely notice of appeal.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291. Where a district

court has dismissed a case under Federal Rule of Civil Procedure 41(b) because of the

plaintiff’s failure to prosecute or comply with an order of court, we review the dismissal

for abuse of discretion. See Adams v. Trustees of the New Jersey Brewery Employees’

Pension Trust Fund, 29 F.3d 863, 870 (3d Cir. 1994). In determining whether the District

Court abused its discretion, we are guided by the manner in which the District Court

balanced the following factors and whether the record supports the District Court’s

findings:

       (1) the extent of the party’s personal responsibility; (2) the prejudice to the
       adversary 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 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 or defense.




       1
       Hammer had earlier moved for the recusal of the Magistrate Judge, but this
motion was also denied.

                                              4
Poulis, 747 F.2d at 868 (emphasis in original). Not all of these factors “need be met for a

district court to find dismissal is warranted.” Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.

1988). Ultimately, “the decision to dismiss constitutes an exercise of the district court

judge’s discretion and must be given great deference by [the appellate court] – a court

which has had no direct contact with the litigants and whose orders, calendar, docket and

authority have not been violated or disrupted.” Mindek v. Rigatti, 964 F.2d 1369, 1373

(3d Cir. 1992).

       After examining the record in this case, we conclude that the District Court’s

application of the Poulis factors was not an abuse of discretion.2 First, we agree with the

District Court that Hammer was personally responsible for her failure to comply with the

court orders because she was proceeding pro se. Next, we agree with the District Court

that Cardio Medical suffered prejudice in scheduling multiple depositions, all of which

Hammer failed to attend, and in expending costs to obtain court orders forcing

compliance with discovery. See Adams, 29 F.3d at 874. Also, we agree with the District

Court that Hammer’s failure to appear for multiple depositions as ordered by the District

Court established a pattern of dilatory conduct.

       Nor did the District Court abuse its discretion when it found that Hammer’s

behavior was willful. Willfulness involves intentional or self-serving behavior. See

Adams, 29 F.3d at 875. We believe that willfulness may be inferred here from Hammer’s




       2
           In this regard, we also have considered all of the parties’ submissions on appeal.

                                                5
repeated failure to appear at depositions in contravention of multiple court orders. We

also conclude that the District Court properly considered the effectiveness of alternative

sanctions. The District Court had previously penalized Hammer by ordering her to pay

attorneys’ fees and costs, but she nonetheless went on to flout another court order

compelling her attendance at a deposition. Moreover, prior to the dismissal, the District

Court specifically warned Hammer that further failure to appear at her deposition could

result in dismissal of her case. Finally, the District Court gave no weight either in favor

or against Hammer regarding the meritoriousness of her underlying claim. As the District

Court correctly pointed out, however, not all of the Poulis factors need to be met for

dismissal to be warranted. Thus, we see no abuse of discretion with respect to this aspect

of the District Court’s analysis either.

       For these reasons, we will affirm the District Court’s order dismissing the case.3




       3
        Hammer also appeals from a number of other orders, including orders requiring
her to appear for depositions, orders denying her motions to strike responses, and orders
denying her motions for recusal. We need not decide the propriety of these other orders.

                                              6
