                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                    ______

                      No. 18-1760
                        ______

              ANTHONY HILDEBRAND,
                           Appellant

                           v.

      ALLEGHENY COUNTY, a political entity;
   ALLEGHENY COUNTY DISTRICT ATTORNEY'S
                 OFFICE
                  ______

     On Appeal from the United States District Court
        for the Western District of Pennsylvania
             (W.D. Pa. No. 2-12-cv-01122)
      District Judge: Honorable Arthur J. Schwab
                        ______

            Argued on December 12, 2018
Before: SMITH, Chief Judge, McKEE and FISHER, Circuit
                       Judges.

             (Opinion Filed: April 24, 2019)
Marjorie E. Crist          [ARGUED by Video-
Conference]
Crist Law Center
792 Ella Street, Suite 100
Pittsburgh, PA 15243
       Counsel for Appellant

Charles J. Porter, Jr.     [ARGUED by Video-
Conference]
Bernard M. Schneider
Brucker & Porter
180 Fort Couch Road, Suite 410
Pittsburgh, PA 15241
       Counsel for Appellee
                          ______

                OPINION OF THE COURT
                        ______


FISHER, Circuit Judge.
       In 2013, Anthony Hildebrand sued his former employer
for age discrimination in the United States District Court for
the Western District of Pennsylvania. When jurisdiction was
returned to the District Court in 2015 after an appeal to this
Court and the United States Supreme Court, Hildebrand’s sole
remaining claim stagnated for three years. The docket idled
until 2018, shortly after the death of Hildebrand’s former
supervisor, a key witness. At that point, the employer filed a
motion to dismiss for failure to prosecute pursuant to Federal




                              2
Rule of Civil Procedure 41(b). The District Court granted the
motion and dismissed the suit. We will vacate the dismissal and
remand for further proceedings.
                              I.
        In his complaint, Hildebrand alleges that the Allegheny
County District Attorney’s Office (the “DA’s Office”) had an
established practice of targeting older detectives to force them
out of their jobs. He avers that Chief Detective Dennis Logan,
Assistant Chief Richard Ealing, and Director of Administration
Dawn Botsford engaged in purposeful, discriminatory
behavior in the form of disparate treatment, retaliation, and
“trumped-up” reasons to fire older detectives. Hildebrand’s
amended complaint details paragraph after paragraph of
alleged insults. For the purposes of this appeal, we need only
summarize these copious allegations.
        Hildebrand was hired by the DA’s Office in 2005, after
fifteen years as an undercover narcotics detective with the City
of Pittsburgh Police Department. He performed his job
responsibilities satisfactorily and without incident for roughly
four years. In 2009, Ealing was assigned as his new supervisor.
From that time until his termination in February 2011,
Hildebrand alleges he was subject to several forms of age-
based discrimination.
        First, Hildebrand alleges that his supervisors and peers
derided him with age-related insults. Among many other
taunts, they called him “an ‘old man’ who would never learn
how to use a computer because of his age,” App. 26, and stated
that he had “Alzheimer’s and was too old to comprehend” his
orders, App. 27. Ealing either was the source of these insults
or failed to stop them, including when Hildebrand submitted
complaints.
        Second, Hildebrand alleges that his workload changed
for the worse due to his age. He alleges that Ealing divided his




                               3
responsibilities among younger investigators and assigned
Hildebrand meaningless busywork that his younger peers did
not have to perform. He further claims that he was deprived of
overtime hours, counter to a tradition of assigning those hours
to detectives with seniority, like Hildebrand.
       Third, Hildebrand claims that his supervisors subjected
his work to heightened scrutiny, questioning him extensively
about his cases in a way that the younger detectives were not
questioned, and trumping up false disciplinary charges that
were meant to create a paper trail to support his termination.
       Eventually, Hildebrand was demoted from a narcotics-
division detective to general investigations and was relocated
to a space with no desk, no working computer, and no phone.
When Hildebrand asked why, Ealing became combative and
countered that neither he nor Chief Detective Logan had to
answer any of the “old son of a bitches [sic]” questions. App.
34-35. Hildebrand alleges that Ealing told him that he had
gotten rid of old detectives previously and he was doing the
same to Hildebrand. Hildebrand further asserts that Ealing and
Logan obstructed him from filing a grievance regarding his
demotion.
       In February 2011, Hildebrand was suspended for five
days without pay when Ealing and Logan accused him of
committing several violations, including using a DA’s Office
vehicle for personal use without permission—something that
younger detectives regularly did without repercussions.
Hildebrand alleges that several of the other supposed violations
“never occurred.” App. 43.
       Hildebrand appealed his suspension to the Director of
Administration, Dawn Botsford, who met with him for twenty
minutes and did not allow him to present any evidence. A union
meeting was held to vote on whether to grieve Hildebrand’s
suspension. Logan appeared at the meeting—allegedly only




                               4
the second time in his career that he attended such a meeting—
for the alleged purpose of “intimidat[ing] any union members
who supported Hildebrand.” App. 44. The union voted not to
appeal Hildebrand’s suspension. Hildebrand was terminated in
February 2011.
        Hildebrand alleges the negative treatment continued
after termination. He applied for payment for his unused sick
days, “which was the practice of the [DA’s Office],” but was
denied. App. 44. Hildebrand also alleges that Ealing tried to
obstruct his application for a private investigator license.
        Hildebrand filed a complaint with the Equal
Employment Opportunity Commission. The EEOC sent him a
Determination and Right to Sue Notice. He then filed a
complaint in the District Court against Allegheny County and
the DA’s Office, alleging violations of the ADEA, 29 U.S.C. §
621, et seq., constitutional violations under 42 U.S.C. § 1983,
and several state law claims. The Defendants moved to dismiss
Hildebrand’s ADEA claim for timeliness and his constitutional
and state law claims for inadequate pleading. The District
Court granted the motion, Hildebrand appealed, and this Court
affirmed the dismissal of the § 1983 claims and reversed as to
the ADEA claim. Hildebrand v. Allegheny Cty., 757 F.3d 99
(3d Cir. 2014), cert. denied, 135 S. Ct. 1398 (2015).1
Hildebrand filed a petition for certiorari regarding the
dismissed claims, which the Supreme Court denied.
        While his petition was pending, the DA’s Office filed a
motion to dismiss the ADEA claim pursuant to Federal Rules




      1
        Since Allegheny County was only alleged to have
violated § 1983, it was dismissed from the action.




                              5
of Civil Procedure 12(b)(1), 12(b)(6),2 and 12(b)(7).
Hildebrand filed a motion to stay the motion to dismiss “until
appellate proceedings [were] concluded,” which was granted.
App. 118. Concurrently, Hildebrand also filed a substantive
response to the pending motion to dismiss “so that it could be
adjudicated upon” resolution of the petition for certiorari.
Appellant’s Br. 3.
        After the Supreme Court denied Hildebrand’s petition
for certiorari and jurisdiction was returned to the District Court
in February 2015, the docket remained administratively closed
due to clerical error. No action was taken by the court or either
party for the next three years. The court did not lift the stay,
adjudicate the fully-briefed motion to dismiss, or schedule a
status conference. Hildebrand did not follow up by filing a
motion or making any other contact with the District Court.
The DA’s Office also did not follow up on its pending motion
to dismiss. Only after the death of one of its key witnesses,
Ealing, did the DA’s Office file a motion to dismiss for failure
to prosecute, pursuant to Federal Rule of Civil Procedure
41(b). The District Court granted the motion, and Hildebrand
now appeals, arguing that the District Court abused its
discretion.
                              II.
        The District Court had federal question jurisdiction over
Hildebrand’s ADEA and § 1983 claims and supplemental

       2
         The DA’s Office moved to dismiss the remaining
state law claims—not the ADEA claim—pursuant to Rule
12(b)(6). The DA’s Office stated it was unclear at the time it
filed the motion whether “the Third Circuit’s order has
resurrected the Pennsylvania law claims,” but if it did, the
DA’s Office renewed its previous Rule 12(b)(6) motion to
dismiss those claims. App. 98.




                                6
jurisdiction over his related state law claims. 28 U.S.C. §§
1331, 1367. This Court has appellate jurisdiction pursuant to
28 U.S.C. § 1291. “We review a District Court’s decision to
dismiss a plaintiff’s case pursuant to Federal Rule of Civil
Procedure 41(b) for an abuse of discretion.” Briscoe v. Klaus,
538 F.3d 252, 257 (3d Cir. 2008) (citing Emerson v. Thiel
Coll., 296 F.3d 184, 190 (3d Cir. 2002)).
                              III.
        A defendant may move to dismiss a claim against him
where “the plaintiff fails to prosecute or to comply with [the
Federal Rules of Civil Procedure] or a court order.” Fed. R.
Civ. P. 41(b). A district court should consider six factors when
determining whether to dismiss a case under Rule 41(b). Poulis
v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.
1984). The court abuses its discretion where it fails to properly
consider and balance those factors, namely:
        (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.

Id. (emphasis omitted). The record must support the District
Court’s findings on the six factors. Id. The court found that five
of the factors weighed in favor of dismissal and one factor,
willful or bad faith conduct, was neutral.
       This Court has acknowledged that “we do not have a




                                7
‘magic formula’ or ‘mechanical calculation’ to determine
whether a District Court abused its discretion in dismissing a
plaintiff’s case.” Briscoe, 538 F.3d at 263 (quoting Mindek v.
Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)). None of the
Poulis factors is alone dispositive, and it is also true that not all
of the factors need to be satisfied to justify dismissal of a
complaint for lack of prosecution. Id. Dismissal is a sanction
rightfully in the district courts’ toolbox, and this Court “has not
hesitated to affirm the district court’s imposition of sanctions,
including dismissals in appropriate cases.” Poulis, 747 F.2d at
867 n.1. However, dismissal must be appropriate.
        The Supreme Court describes dismissal with prejudice
as an “extreme” sanction. Nat’l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 643 (1976). We too have
repeatedly acknowledged that “dismissals with prejudice or
defaults are drastic sanctions” that “must be a sanction of last,
not first, resort.” Poulis, 747 F.2d at 867, 869; see also Briscoe,
538 F.3d at 258; Emerson, 296 F.3d at 190. If the case is close,
“doubts should be resolved in favor of reaching a decision on
the merits.” Adams v. Trs. of the N.J. Brewery Emps.’ Pension
Tr. Fund, 29 F.3d 863, 870 (3d Cir. 1994) (quoting
Scarborough v. Eubanks, 747 F.2d 871, 878 (3d Cir. 1984)).
Without a doubt, cases should be decided on the merits barring
substantial circumstances in support of the contrary outcome.
        The District Court failed to mention this strong policy
favoring decisions on the merits at any point in its
memorandum opinion. While that alone is not an abuse of
discretion, we are not convinced that the court had this policy
in mind when it analyzed the Poulis factors and dismissed
Hildebrand’s case with prejudice.




                                 8
       A.      Application of the Poulis factors
               1.     The extent of the party’s responsibility
        The District Court found Hildebrand personally
responsible for the three-year hiatus, stating that, as the person
with the “most at stake,” App. 10, it is implausible that
Hildebrand would not have asked his counsel about the status
of his case. However, there is no record evidence of
Hildebrand’s involvement or lack thereof, so this conclusion
was conjectural and not based on the record. There is no
evidence that Hildebrand was personally responsible for the
delay, and the District Court erred in holding him so. The
District Court relied on the principle that it is not unjust to the
client to dismiss his case because of his counsel’s “unexcused
conduct.” Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962).
However, this Court has “increasingly emphasized visiting
sanctions directly on the delinquent lawyer, rather than on a
client who is not actually at fault.” Carter v. Albert Einstein
Med. Ctr., 804 F.2d 805, 807 (3d Cir. 1986) (considering
dismissal as discovery sanction under Fed. R. Civ. P. 37); see
also Burns v. MacMeekin (In re MacMeekin), 722 F.2d 32, 35
(3d Cir. 1983) (requiring district courts to consider and rule out
alternative remedies because “[t]he brunt of the order [to
dismiss] falls on plaintiffs, who have been deprived of the
opportunity to litigate their case on the merits, when the only
culpable party may well be their attorney”). Poulis is one
example of this emphasis. There, we distinguished between a
party’s responsibility for delay and counsel’s responsibility.
747 F.2d at 868. Because the attorney “acknowledged the
delays were his responsibility,” caused by personal illness and
family matters, we concluded that the personal responsibility
factor did not weigh in favor of dismissal. Id.; see also Carter,
804 F.2d at 806-07 (finding plaintiff not personally responsible
even when he knew of his attorney’s dereliction). “[I]n




                                9
determining whether dismissal is appropriate, we look to
whether the party bears personal responsibility for the action
or inaction which led to the dismissal.” Adams, 29 F.3d at 873.
We have focused on the plaintiff’s personal responsibility in
multiple Rule 41 cases. See Dunbar v. Triangle Lumber and
Supply Co., 816 F.2d 126, 128-29 (3d Cir. 1987) (vacating and
remanding after Rule 41 dismissal because, although
attorney’s conduct rose to “the level of willfulness and
contumaciousness necessary to support the sanction of
dismissal,” there was no evidence that the plaintiff was aware
of “her counsel’s defaults or otherwise bore some personal
responsibility for his professional irresponsibility”); Briscoe,
538 F.3d at 258-59 (vacating and remanding after Rule 41
dismissal because, even though plaintiff represented himself,
there was insufficient evidence that his failure to comply was
his own doing, as opposed to the result of an external factor he
could not control).
        Conversely, this Court has held corporate plaintiffs
personally responsible for the dilatory actions of their in-house
counsel. Adams, 29 F.3d at 873. In Adams, the corporate
plaintiff was personally responsible because its in-house
counsel’s actions did not reflect “the sympathetic situation of
an innocent client suffering the sanction of dismissal due to
dilatory counsel whom it hired to represent it.” Id. at 873
(internal citation omitted). As counsel and client were
essentially the same entity, the plaintiff was not permitted to
hide behind ignorance of its counsel’s dilatoriness.
        Because Hildebrand is a natural person represented by
private counsel, not a corporation represented by its own
employees, the facts of this case are more like Dunbar and
Briscoe than Adams as they relate to the personal responsibility
Poulis factor. The District Court conjectured that, because
Hildebrand was unemployed, it was “implausible that [he]




                               10
would not have at least inquired of his counsel over the last
three years . . . as to why his ADEA claim was not moving
forward.” App. 10. Hildebrand’s unemployment and his likely
desire to have his case resolved do not automatically indicate
that he and his counsel discussed why his case had not
proceeded. It is entirely possible that Hildebrand, a non-
lawyer, was patiently awaiting the resolution of what he
assumed were lengthy appeals. The court did not base its
conclusion that Hildebrand knew about his counsel’s delay on
record evidence, and instead, it resolved doubts about
Hildebrand’s personal involvement against a decision on the
merits. Without record evidence supporting the notion that
Hildebrand was personally responsible for the delay, the
District Court should not have weighed this factor in favor of
dismissal.
                2.     Prejudice to the adversary
       The District Court appropriately concluded that
Ealing’s death, which occurred near the end of the three-year
hiatus, prejudiced the DA’s Office. The resulting loss of
evidence is important when considering the appropriateness of
dismissal, but is not dispositive.
       Prejudice to the adversary is a particularly important
factor in the Poulis analysis, and evidence of “true
prejudice . . . bear[s] substantial weight in support of a
dismissal.” Scarborough, 747 F.2d at 876. Relevant examples
of prejudice include “the irretrievable loss of evidence[] [and]
the inevitable dimming of witnesses’ memories.” Id. The bar is
not so high that a party needs to show “irremediable harm” for
the prejudice to weigh in favor of dismissal. Ware v. Rodale
Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003) (citation omitted).
An inability to prepare “a full and complete trial strategy is
sufficiently prejudicial.” Id.




                               11
         The DA’s Office argues that allegations against Ealing
were at the heart of Hildebrand’s claims and, therefore,
Ealing’s assistance and availability were essential to its
preparation of an adequate trial strategy. Hildebrand’s own
allegations make it clear that Ealing was a key witness.
Hildebrand argues that the contention that Ealing was at the
center of his claims against the DA’s Office is not supported
by the pleadings. He points to several sources of evidence that
he believes would enable the DA’s Office to “fully defend”
itself without Ealing’s testimony: the testimony of Botsford
and Logan, who were involved in Hildebrand’s termination
and allegedly worked with Ealing to force out older employees;
witnesses who heard Ealing’s alleged public insults; and
written documentation from and testimony of witnesses to
official meetings where Hildebrand attempted to file
grievances.
         However, even assuming all of that evidence exists and
is available, several of Hildebrand’s allegations involve
interactions with Ealing alone. These include several instances
where Ealing allegedly made age-based insults, reassigned
Hildebrand’s work responsibilities, and informed Hildebrand
he was on a path toward termination due to his age. Ealing’s
death amounts to an irremediable loss of evidence. While other
evidence may be available to the DA’s Office, that evidence
cannot replace Ealing for the purposes of preparing a full and
complete trial strategy. The witnesses whom the parties rely on
to fill the gaps will inevitably have dimmed memories from the
delay. And, as the District Court points out, Ealing’s death
undermines the jury’s opportunity to weigh the credibility of
Hildebrand’s accusations versus Ealing’s demeanor and
responses in open court. This prejudice to the DA’s Office
bears substantial weight in favor of dismissal, but it is not




                              12
dispositive of the appropriateness of imposing the harshest
sanction available.3
               3.     History of dilatoriness
       The District Court did not act outside its discretion in
determining that the timeline—a three-year hiatus in five and
a half years of litigation—weighs in favor of dismissal.
However, the weight the District Court gave to this factor
should have been mitigated by Hildebrand’s otherwise
responsible litigation history.
       “[E]xtensive or repeated delay or delinquency
constitutes a history of dilatoriness . . . .” Adams, 29 F.3d at
874. Normally, “conduct that occurs one or two times is
insufficient to demonstrate a ‘history of dilatoriness,’” Briscoe,
538 F.3d at 261 (quoting Scarborough, 747 F.2d at 875). Most
cases where the court found a history of dilatoriness involved
repeated delay. See, e.g., Ware, 322 F.3d at 224 (finding a
history of dilatory conduct where plaintiffs “failed repeatedly”
to provide a damages calculation over a five-year period);
Emerson, 296 F.3d at 191 (finding a history of dilatory conduct
where plaintiff made multiple requests for stays and failed to
meet deadlines).
       In addition to repeated acts, we have also held that
“extensive” delay can create a history of dilatoriness. Adams,
29 F.3d at 874. “‘[F]ailure to prosecute’ under the Rule 41(b)
does not mean that the plaintiff must have taken any positive
steps to delay the trial . . . . It is quite sufficient if he does

       3
         It is noteworthy that the District Court observed that
Hildebrand also suffered prejudice as a result of the lengthy
delay: “[t]he loss of Eagling [sic] is detrimental to both the
Plaintiff and his ability to prove the specific acts of
discrimination which he alleges, as well as the Defendant’s
defense of this case.” App. 12.




                               13
nothing . . . .” Id. at 875 (citation omitted). While extensive
delay may weigh in favor of dismissal, “a party’s problematic
acts must be evaluated in light of its behavior over the life of
the case.” Id. For instance, because the plaintiff in Adams had
litigated the case responsibly for ten years prior to the hiatus,
the delay was “somewhat mitigated” and “weigh[ed] toward,
but [did] not mandate, dismissal.” Id.
        Hildebrand’s case is like Adams; while Hildebrand had
not litigated his case responsibly for as long as ten years, he
had done so for nearly two and a half years prior to the delay.
The District Court appropriately concluded that the extensive
delay weighed in favor of dismissal. However, Hildebrand’s
conduct has not been delinquent at any other point, and the fact
that his delay was an isolated incident—albeit, a three-year-
long one—should serve to mitigate the weight the District
Court placed in favor of dismissal.
               4.      Willful or bad-faith conduct
        The District Court found that Hildebrand did not cause
the delay willfully or in bad faith. Neither party contests this
point. The court concluded that this factor was neutral in the
Poulis analysis. Because the delay was not effectuated by a
self-serving or bad-faith tactic, the court should have weighed
this factor against dismissal.
        In evaluating this factor, a court should look for “the
type of willful or contumacious behavior” that can be
characterized as “‘flagrant bad faith,’” such as failing to
answer interrogatories for nearly a year and a half, demanding
numerous extensions, ignoring admonitions by the court, and
making false promises to correct delays. Scarborough, 747
F.2d at 875 (citing Nat’l Hockey League, 427 U.S. at 643).
“Willfulness involves intentional or self-serving behavior.”
Adams, 29 F.3d at 875. A lengthy delay reflects “inexcusable




                               14
negligent behavior,” id. at 876, but that behavior alone does not
rise to the level of willfulness or bad faith.
        In this case, there is no evidence on the record that the
three-year hiatus was part of any bad-faith tactic by
Hildebrand. Hildebrand’s counsel blamed the fact that the
docket remained closed after the appellate proceedings
concluded and stated that she thought the DA’s Office’s
motion to dismiss from before the appeal was still in line to be
adjudicated. The delay was caused by administrative confusion
as much as anything else. While these excuses do not fully
explain why counsel did not follow up with the District Court,
they at least offer some insight into how the delay happened,
unlike Adams, where the plaintiff offered no explanation for
the delay. Id. at 876. Because the harsh sanction of dismissal
should serve to deter bad faith or self-serving behavior, and
because of our policy of favoring decisions on the merits, the
fact that the delay was not effectuated willfully or in bad faith
should weigh against dismissal.
                5.     Effectiveness of sanctions other than
                       dismissal
        The District Court offered only one paragraph on
alternative sanctions in which it considered fines as the only
alternative, but dismissed them as ineffective to cure Ealing’s
absence at trial.
        A district court must consider alternative sanctions
before dismissing a case with prejudice. Briscoe, 538 F.3d at
262. “Alternatives are particularly appropriate when the
plaintiff has not personally contributed to the delinquency,” as
is the case here. Poulis, 747 F.2d at 866 (citation omitted). It
bears repeating that important in the overall Poulis analysis,
and particularly in the consideration of alternative sanctions, is
that “district courts should be reluctant to deprive a plaintiff of
the right to have his claim adjudicated on the merits.” Adams,




                                15
29 F.3d at 876 (quoting Titus v. Mercedes Benz, 695 F.2d 746,
749 (3d Cir. 1982)). We have repeatedly stated that
“[d]ismissal must be a sanction of last, not first, resort.” Id. at
878 (quoting Poulis, 747 F.2d at 869); see also Emasco Ins.
Co. v. Sambrick, 834 F.2d 71, 75 (3d Cir. 1987); Carter, 804
F.2d at 807.4
       While district courts need not put on the record
consideration of every possible sanction before dismissing a
case with prejudice, the District Court’s analysis is insufficient

       4
          Several of our sister circuits echo the importance of
thorough consideration of alternative sanctions before
dismissal. See, e.g., Peterson v. Archstone Cmtys. LLC, 637
F.3d 416, 418 (D.C. Cir. 2011) (emphasizing the importance
of trying “less dire alternatives” before imposing the harsh
sanction of dismissal); 3 Penny Theater Corp. v. Plitt
Theatres, Inc., 812 F.2d 337, 339 (7th Cir. 1987) (“A Rule
41(b) dismissal is appropriate when . . . other sanctions have
proved unavailing.” (citation omitted)); Hamilton v. Neptune
Orient Lines, Ltd., 811 F.2d 498, 500 (9th Cir. 1987) (“While
there is no requirement that every conceivable sanction be
examined, meaningful alternatives must be explored . . . .
Where there is no indication that such alternative actions were
weighed and found wanting, a dismissal pursuant to Rule
41(b) is more difficult to sustain.” (citations omitted));
Canada v. Mathews, 449 F.2d 253, 255 (5th Cir. 1971) (per
curiam) (“[W]e have consistently held that a dismissal with
prejudice is warranted only in extreme circumstances and
only after the Trial Court, in the exercise of its unquestionable
authority to control its own docket, has resorted to the wide
range of lesser sanctions which it may impose upon the
litigant or the derelict attorney, or both.” (internal quotation
marks and footnotes omitted)).




                                16
to honor our longstanding tradition of favoring decisions on the
merits. The court focuses its brief analysis on fully resolving
the problems caused by the hiatus and Ealing’s death, see App.
13, even though we have never held that alternative sanctions
need be completely ameliorative. In most cases, including here,
placing the aggrieved party in the position it was in prior to the
dilatory behavior would be impossible. Rather, alternative
sanctions need only be effective toward mitigating the
prejudice caused by dilatory behavior or delinquency. In this
case, evidentiary or other sanctions may have been sufficient.
While it is generally in the District Court’s discretion to
consider whether those or other sanctions would be effective,
it failed to offer any such analysis. The court should have more
fully considered whether sanctions other than fines may have
been effective.
                6.      Meritoriousness of Hildebrand’s ADEA
                        claim
        The District Court altogether failed to address the
meritoriousness of Hildebrand’s ADEA claim. In a single
paragraph, the court examined the meritoriousness of the
wrong “claim[] or defense,” Poulis, 747 F.2d at 869-70,
focusing solely on Hildebrand’s defense of the DA’s Office’s
Rule 41(b) motion to dismiss. See App. 13-14 (“Because
[Hildebrand] failed to offer the [c]ourt a plausible explanation
as to why he and his attorney did nothing for three years, the
[c]ourt has been given no defense to weigh on [Hildebrand’s]
behalf. Thus, this factor weighs in favor of dismissal.”). This
analysis misses the mark.
        The standard for determining whether a plaintiff’s
claims are meritorious “is moderate.” Adams, 29 F.3d at 876.
“[W]e do not purport to use summary judgment standards. A
claim, or defense, will be deemed meritorious when the
allegations of the pleadings, if established at trial, would




                               17
support recovery by plaintiff or would constitute a complete
defense.” Poulis, 747 F.2d at 869-70; see also Briscoe, 538
F.3d at 263 (“[W]e use the standard for a Rule 12(b)(6) motion
to dismiss for failure to state a claim.” (citing Poulis, 747 F.3d
at 869-70)).
        Under Poulis, the District Court was required to
examine whether Hildebrand’s ADEA claim had merit. See
Briscoe, 538 F.3d at 263; Adams, 29 F.3d at 876-77. Yet, the
court did not make any reference to the ADEA claim
whatsoever, much less analyze its merits. If the District Court
had evaluated the amended complaint for meritoriousness and
applied the correct standard, it would have found that
Hildebrand’s claim was meritorious.
        Hildebrand alleges sufficient facts to plausibly state an
ADEA claim, which is evident from even a glance at the
amended complaint. He adequately alleges a hostile work
environment, including page upon page of disparate treatment
and adverse employment decisions based on his age. He claims
he was retaliated against for complaining about the negative
treatment, and he alleges his age was the motivation for his
termination. Its meritoriousness is further evidenced by the fact
that the DA’s Office filed three motions to dismiss in this case,
none of which argued that the ADEA claim was not pled with
the specificity needed to survive a Rule 12(b)(6) motion to
dismiss. See District Ct. Dkt. Nos. 8-9, 17-19, 33-34.
        B.     Balancing of the Poulis Factors
        Because there is no “magic formula” or “mechanical
calculation” in evaluating a Rule 41(b) motion to dismiss, we
generally afford great deference to district courts’ discretion.
However, we have never upheld a court’s dismissal when it
was supported by an inadequate foundation on even one of the
Poulis factors. See, e.g., Adams, 29 F.3d at 874, 876, 878
(vacating dismissal after a misapplication of three factors);




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Carter, 804 F.2d at 808 (vacating dismissal in part after a
misapplication of one factor); Scarborough, 747 F.2d at 876-
77 (vacating dismissal after a misapplication of two factors);
Titus, 695 F.2d 747 (vacating dismissal after a misapplication
of one factor). Where it is apparent that a district court
misstated the law, relied upon findings that were not supported
by the record, or did not consider the motion in light of our
strong policy in favor of deciding cases on the merits, we must
conclude that it abused its discretion. Here, the District Court
committed all three errors.
       The District Court dismissed Hildebrand’s case
pursuant to Rule 41(b) after concluding that five factors
weighed in favor of dismissal. However, its conclusions
regarding three of those five factors rested on inadequate
foundations. The court held that Hildebrand was personally
responsible for the delay when no record evidence exists to
support that notion. Rather than resolving doubts “in favor of
reaching a decision on the merits,” Emerson, 296 F.3d at 190,
the District Court made unsupported assumptions about
Hildebrand’s personal involvement and responsibility and
resolved doubts in favor of dismissal. The court offered
perfunctory consideration of whether alternative sanctions
would be effective and appropriate here, flying in the face of
our policy of choosing dismissal as a last resort. And, finally,
the District Court offered no consideration of whether
Hildebrand’s ADEA claim was meritorious, instead applying
an inapposite standard to that factor. Additionally, the court
found that the willfulness or bad faith factor was neutral in the
absence of any bad faith or self-serving action. It should have
concluded that where no bad faith or willfulness exists, that
factor weighs against dismissal.
       The court was correct in its analysis that the DA’s
Office was prejudiced by the delay because of Ealing’s death




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and that Hildebrand’s long delay supports a finding of a history
of dilatoriness in light of Adams. However, we will not
postulate whether the District Court would have still ordered
dismissal, or whether that dismissal would have been
appropriate, where only two factors weighed in favor of
dismissal, including prejudice, which bears “substantial weight
in support of a dismissal.” Scarborough, 747 F.2d at 876.
Rather, “[t]he scope of our review is restricted to determining
whether the district court abused its discretion. How we
imagine we might have exercised our own discretion had we
been in the district court judge’s robe is entirely irrelevant.”
Mindek, 964 F.2d at 1373-74.
       Where, as here, a district court fails to apply the correct
standard, including a failure to consider the Poulis factors in
light of our clear and repeated instruction to resolve doubt in
favor of a decision on the merits, we must conclude that the
court abused its discretion.
                             IV.
       For the foregoing reasons, we will vacate the District
Court’s order of dismissal and remand for further proceedings
consistent with this opinion.




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