                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-13-2006

Bjorgung v. Whitetail Resort
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1366




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Recommended Citation
"Bjorgung v. Whitetail Resort" (2006). 2006 Decisions. Paper 750.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 05-1366

                             ANDERS ELLIS BJORGUNG

                                       Appellant

                                           v.

       WHITETAIL RESORT, WHITETAIL SKI COMPANY, INC., U.S. SKI &
                     SNOWBOARD ASSOCIATION

                     U.S. SKI & SNOWBOARD ASSOCIATION,
                           Defendant/Third-Party Plaintiff

                                           v.

                                ANDERS BJORGUNG,
                                 Third-Party Defendant


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania

                            (District Court No: 03-cv-02114)

                            District Court: Hon. Yvette Kane

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 15, 2006

                         Before: McKee, Garth, Circuit Judges,
                             and Lifland, District Judge.*

*
 The Honorable John C. Lifland, Senior District Judge of the United States District Court
for the District of New Jersey, sitting by designation.

                                            1
                                (Opinion filed: July 13, 2006)

McKEE, Circuit Judge.

       Anders Ellis Bjorgung1 appeals the district court’s order dismissing without

prejudice the complaint he filed in this diversity action. For the reasons that follow, we

will reverse and remand.

                                              I.

       Inasmuch as we write primarily for the parties who are familiar with this case, we

need not recite the factual or procedural history of this dispute. Suffice it to say that

plaintiff’s attorney, Mr. Speights, requested – and was granted – multiple continuances of

a pre-trial telefonic conference with the district court and opposing counsel. From our

review of the record, it appears that he failed on numerous occasions to initiate the

pretrial telefonic conference which had been continued, as the district court had ordered.

When the district court granted its final continuance of the pre-trial conference, it warned

Mr. Speights (both orally and in writing) that failure to comply with its orders could result

in dismissal of the case. When its orders were not followed, the district court did finally

dismiss the case.

       The district court did not specify the authority it was relying on to dismiss the

complaint. However, it appears from the text of the order that the suit was dismissed


1
 “Anders Ellis Bjorgung,” will be referred to as “Plaintiff,” to avoid confusion with his
father, “Anders Bjorgung,” a Third Party Defendant in this case.


                                               2
pursuant to Fed. R. Civ. P. 41(b). That Rule states, in pertinent part, that a court may

dismiss an action “[f]or failure of the plaintiff to prosecute or to comply with [the Federal

Rules] or any order of court . . .”. The district court’s order explains: “[t]his Court will no

longer tolerate Plaintiff’s counsel’s disregard for this Court’s Orders nor Plaintiff’s

counsel’s inattention to this case.” A31. “We review such an order for an abuse of

discretion. While we defer to the District Court’s discretion, dismissal with prejudice is

only appropriate in limited circumstances and doubts should be resolved in favor of

reaching a decision on the merits.” Emerson v. Theil College, 296 F.3d 184, 190 (3d Cir.

2002). We realize, of course, that Emerson involved a dismissal with prejudice, and the

dismissal here was, at least nominally, without prejudice. However, given well

established circuit precedent, the manner in which the district court dismissed this suit is

no less troubling. Although the court ordered that the dismissal be without prejudice, the

district court dismissed Plaintiff’s motion to reconsider because the statute of limitations

had run. Accordingly, the Rule 41(b) dismissal was tantamount to a dismissal with

prejudice. It effectively put Plaintiff out of court.2

       In Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984),

we listed several factors that a district court must consider and balance before dismissing

a complaint. They are the same factors that we focus on “in exercising our appellate

function to determine whether the trial court has abused its discretion in dismissing . . .” a
2
 Although the finality of the court’s dismissal is particularly troubling, as we shall explain, the
court’s failure to engage in the required inquiry and balancing would be problematic even if the
Plaintiff could have reinstated his complaint.


                                                 3
complaint. Those factors are:

       (1) the extent of party’s personal responsibility; (2) the prejudice to
       adversary caused by failure to meet scheduling orders and to 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 entail analysis
       of alternative sanctions; and (6) the meritoriousness of claim or
       defense.

Id. See also Adams v. Trustees of New Jersey Brewery Pension Trust Fund, 29 F.3d 863,

873 (3d Cir. 1994).

       Although “[n]ot all of the Poulis factors need be satisfied in order to dismiss a

complaint,” they must all be considered. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.

1992). Yet, despite the longstanding jurisprudence in this circuit requiring that a district

court balance the factors set out in Poulis on the record, there is nothing on this record to

suggest that the district court considered the pertinent factors, nor that the court engaged

in the required balancing. “Here the district court did not undertake any Poulis

balancing.” Livera v. First National State Bank, 879 F.2d 1186, 1194 (3d. Cir. 1989)

(emphasis added). Rather, the order dismissing the complaint focuses on Plaintiff’s

counsel’s failure to comply with deadlines the court had imposed, and the court dismissed

the complaint for that reason alone. See A29.

       “[D]ismissal is a drastic sanction and should be reserved for those cases where

there is a clear record of delay or contumacious conduct by the plaintiff. . . .

[Accordingly, it] is necessary for the district court to consider whether lesser sanctions



                                              4
would better serve the interests of justice.” Titus v. Mercedes Benz of North America, 695

F.2d 746, 750 (3d. Cir. 1982) (internal quotation marks omitted). Here, there was neither

consideration of lesser sanctions, nor of the various factors that must be balanced.

       Although dilatory conduct is a factor that must be considered under Poulis, it is not

the only factor that is to be taken into account. The district court should have examined

all of the Poulis factors, and then balanced them to determine whether dismissal of

Bjorgung’s complaint was warranted under all of the circumstances. The court may not

simply focus on any one factor. This is particularly true where, as here, the party or

counsel being sanctioned may have a reasonable explanation for the perceived

contumacious behavior.

       Plaintiff’s counsel argues that much of the delay that so concerned the district

court resulted from a serious accident that resulted in some degree of disability. He also

claims the very tight scheduling resulted in serious logistical problems that made it

extremely difficult to comply with the time constraints.

       Defense counsel counters with allegations of delay on the part of Plaintiff’s

counsel. In addition, it appears that Mr. Speights apparently had another trial commitment

during the week of November 8 -- a crucial week in the district court’s schedule.

       Although both sides wage a battle of competing Poulis allegations in their

appellate briefs, and provide us with their own adversarial balancing of the appropriate

factors, it is the district court that must conduct the Poulis balancing in the first instance.



                                               5
“[W]e do not undertake this task here as it would require factual findings not within the

parameters of our review.” Livera, 879 F.2d at 1194.

       Our appellate function requires us to determine “if the court properly balanced the

Poulis factors and whether the record supports its findings.” Livera, 879 F.2d at 1194.

This record contains neither findings, nor balancing, and the court never considered

whether a lesser sanction than dismissal would be appropriate.3

                                             II.

       Accordingly we will reverse the district court’s dismissal of this complaint, and

remand for further proceedings consistent with this opinion.




3
  We have “emphasized . . . that district courts should be reluctant to deprive a plaintiff of
the right to have his claim adjudicated on the merits.” Titus, 695 F.2d at 750.

                                              6
