                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2005

Clarke v. Secretary Veterans
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4432




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"Clarke v. Secretary Veterans" (2005). 2005 Decisions. Paper 395.
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                                                                 NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT


                                        No. 04-4432


                                   LILIETH A. CLARKE

                                         Appellant

                                             v.

       *JAMES R. RICHARDSON, SECRETARY OF VETERANS AFFAIRS,
              UNITED STATES VETERANS ADMINISTRATION

                          *(Substituted pursuant to F.R.A.P. 43(c))


     ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                WESTERN DISTRICT OF PENNSYLVANIA
                        (D.C. No: 01-cv-0111)

                    District Judge: The Honorable Gary L. Lancaster


                             Submitted pursuant to LAR 34.1(a)
                                 on September 26, 2005.

                              Before: RENDELL, FUENTES,
                                and GARTH, Circuit Judges

                                 (Filed: October 17, 2005)
                                  ____________________

                                OPINION OF THE COURT
                                 _____________________

Fuentes, Circuit Judge.
       The Appellant, Lilieth A. Clarke (“Clarke”), filed two complaints against her

former employer, the United States Veterans Administration (the “Veterans

Administration”), alleging employment discrimination. The two cases were eventually

consolidated. On or about June 12, 2002, Clarke’s counsel withdrew from the cases.

Clarke repeatedly asked, and was granted, additional time to obtain new counsel, but

failed to obtain new counsel for approximately two years. After Clarke failed to appear

for her deposition in violation of the District Court’s Order of July 2, 2004, the District

Court granted the Veterans Administration’s Motion to Dismiss Pursuant to Rule 41(b),

and dismissed the action in its entirety. Clarke now appeals this dismissal. We affirm.

                                              I.

       Because we write only for the parties, we recite only the essential facts.

       Clarke, a nurse of African-Caribbean origin, was an employee of the Veterans

Administration from 1981 until 1999. In 1998, Clarke filed an employment discrimination

suit against the Veterans Administration. In July 1999, Clarke’s counsel withdrew from

the representation. Clarke proceeded pro se, and retained new counsel in November

2000, two months before trial. On January 25, 2001, after a trial, a jury returned a verdict

in Clarke’s favor and awarded her $250,000.

       Clarke, through her new counsel, filed two additional complaints against the

Veterans Administration on January 16, 2001 and June 14, 2001, alleging employment

discrimination and retaliation. The District Court consolidated the two cases on



                                              2
November 20, 2002.

       On June 14, 2002, the trial court permitted Clarke’s counsel to withdraw from the

cases. Clarke did not object. The District Court allowed Clarke until July 29, 2002, to

have new counsel enter an appearance, or else the District Court would consider her as

proceeding pro se. (Order dated Jun. 14, 2002, Appellant’s Appendix at 38a.) On July

25, 2002, Clarke moved for an additional 60 days to secure new counsel. The District

Court granted the motion, and allowed her until September 30, 2002, to retain counsel.

(Order dated Jul. 30, 2002, Appellant’s Appendix at 60a.) On or about September 27,

2002, Clarke requested an additional 30 days to retain counsel. The District Court

granted the motion, and allowed her until Oct. 31, 2002, to retain counsel. (Order dated

Oct. 1, 2002, Appellant’s Appendix at 66a.) Clarke did not request additional time until

January 21, 2003, when she requested two additional months to retain new counsel. The

District Court granted the motion, and allowed Clarke until March 31, 2003, to retain

counsel. (Order dated Feb. 3, 2002, Appellant’s Appendix at 55a.) On January 27, 2003,

the District Court issued an Order stating that discovery in the case would close on May

16, 2003, and setting due dates for pretrial statements in June. (Order dated Jan. 27,

2003, Appellant’s Appendix at 74a.)

       When Clarke could not meet the deadlines for retaining counsel and submitting a

pretrial statement, the District Court provided Clarke with a delinquency notice and

extended the deadline. On June 30, 2003, Clarke, unable to meet the new deadline,



                                             3
requested an additional 30 days to retain new counsel and file her pretrial statement. The

District Court granted Clarke an additional 90 days, allowing her until September 30,

2003, to retain counsel, and explicitly stated that no further extension would be granted.

(Order dated Jul. 2, 2002, Appellant’s Appendix at 96a.) The District Court extended the

deadlines for the filing of Clarke’s and the Veterans Administration’s pre-trial statements

to October 20, 2003, and December 1, 2003, respectively. (Id.) On October 20, 2003,

Clarke filed her pretrial statement, in which she indicated that she had been unable to

attain new counsel.

       On March 30, 2004, the District Court granted the Veterans Administration’s

motion for permission to take Clarke’s deposition out of time, allowing the Veterans

Administration until April 30, 2004, to take Clarke’s deposition. (Order dated Mar. 30,

2004, Appellant’s Appendix at 88a.) On April 15, 2004, the Veterans Administration

noticed Clarke’s deposition for April 22, 2004. (Appellant’s Appendix at 113a.) Clarke

informed the Veterans Administration that she was unable to be deposed at that time, and

gave the Veterans Administration her work hours to schedule a different time. The

Veterans Administration sent her a second notice of deposition on April 21, 2004,

scheduling the deposition for April 28, 2004. (Id. at 112a.) On April 22, 2004, Clarke

faxed to the Veterans Administration a motion requesting that the District Court defer her

deposition until after 1 p.m. on May 14, 2004. (Id. at 118a) Upon receipt of the fax, the

Veterans Administration agreed to the postponement, and requested that Clarke provide



                                             4
the Veterans Administration with a list of potential dates and times. (Id. at 131a.) Clarke

did not respond.

       On April 30, 2004, the Veterans Administration moved for more time in which to

depose Clarke, moved to compel Clarke to appear for deposition on May 24, 2004, and

sent Clarke a notice of deposition for that date. (Id. at 130a, 135a, 139a. ) On the

morning of May 24, 2004, Clarke spoke by telephone with an administrative assistant to

the Veterans Administration’s counsel. Clarke informed the assistant that she had

retained counsel, that Clarke’s new counsel would contact the Veterans Administration to

arrange a date to reschedule Clarke’s deposition, but that Clarke would appear for the

deposition that day, although possibly later than the scheduled time. The Veterans

Administration received a fax later that morning from Lisa Lyons Ward, Esq. (“Ward”)

representing that Clarke had retained her as counsel and requesting that the Veterans

Administration reschedule the deposition for the next week. The Veterans Administration

was unable to contact either Clarke or Ward by phone, and Ward had not entered an

appearance as Clarke’s counsel. Clarke arrived for deposition without an attorney and

requesting a postponement, and the Veterans Administration refused to reschedule.

Clarke refused to answer any substantive questions.

       On June 4, 2004, the Veteran’s Administration filed its second motion to compel

Clarke’s appearance at her deposition noticed for June 15, 2004. (Id. at 166a.) The June

15, 2004 deposition did not take place. Although Ward had not entered an appearance,



                                              5
the Veterans Administration attempted to contact her to schedule a deposition, with no

success.

       On July 2, 2004, the District Court granted the Veterans Administration’s motion

to compel, ordering Clarke to appear no later than July 30, 2004 for deposition. (Id. at

186a.) The Veterans Administration sent out a notice of deposition scheduling Clarke’s

deposition for July 21, 2004. (Id. at 206a.) Clarke did not appear for deposition on that

date. At no time has Ward entered a notice of appearance.

       On July 23, 2004, the Veterans Administration moved to dismiss Clarke’s action

for failure to prosecute. (Id. at 226a.) Following Clarke’s responsive pleading, the

District Court granted the motion and dismissed the action. (Memorandum and Order of

October 20, 2004, Appellant’s Appendix at 1a.) Clarke timely appealed.




                                             II.

       This Court reviews a district court’s ruling on a motion to dismiss pursuant to

Federal Rule of Civil Procedure 41(b) for abuse of discretion. See Adams v. Trustess of

the New Jersey Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 870 (3d Cir.

1994). An abuse of discretion exists “only when the judicial action is arbitrary, fanciful,

or unreasonable, or when improper standards, criteria, or procedures are used.” Evans v.

Buchanan, 555 F.2d 373, 378 (3d Cir. 1977).

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


                                             6
this Court set forth six factors that a district court must consider before dismissing an

action for failure to prosecute: 1) the extent of the nonmoving party’s personal

responsibility; 2) the prejudice to the moving party 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 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.

       Here, the District Court’s application of these factors was not an abuse of

discretion. The District Court considered each factor delineated in Poulis and concluded

that dismissal was proper. The District Court noted that, unlike a situation in which a

dismissal is predicated upon an attorney’s error, the plaintiff here was pro se and directly

responsible for her actions and inaction in the litigation. (Order dated October 20, 2004,

Appellant’s Appendix at 4a-5a.) Moreover, although failure to prosecute would result in

the defendant indirectly prevailing, the district court correctly acknowledged that the

defendant has an interest in having litigation brought to an end, and was prejudiced by the

expense and inconvenience in the plaintiff’s continued delay and failure to appear for

deposition. (Id. at 5a.) See Ware v. Rodale Press, Inc., 322 F.3d 218, 222-24 (3d Cir.

2003) (finding prejudice to defendant in plaintiff’s delay and failure to comply with

requests for discovery). As the District Court noted, the plaintiff had a history of

dilatoriness in her failure to take any substantial action, her repeated requests for delays,


                                               7
and refusal, in violation for a court order, to be deposed. (Id. at 5a-6a.) The District

Court’s conclusion that the plaintiff was acting willfully or in bad faith was based upon

the plaintiff’s failure to respond to the court’s order compelling her to appear for

deposition, her repeated failure to retain new counsel, and the fact that the plaintiff,

having recently and successfully brought a similar case, was not unfamiliar with the

judicial processes involved. (Id. at 6a.) Given that the plaintiff would likely be unable to

pay monetary sanctions, the Court concluded that there were no viable alternative

sanctions. (Id. at 6a-7a.) Although the plaintiff now argues that the District Court should

have used civil or criminal contempt as an alternative sanction, this argument is without

merit. Civil contempt is used as a coercive measure, and is not appropriate to coerce a

plaintiff into proceeding with a case that she voluntarily commenced. Criminal contempt

is a punitive sanction that would be inappropriately harsh for a failure to prosecute.

Finally, although the District Court found that the plaintiff’s claim was not frivolous, this

consideration does not outweigh the other Poulis factors, which support the District

Court’s decision to dismiss the case. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988)

(stating that not all Poulis factors need be met in order for district court to grant motion to

dismiss pursuant to Rule 41(b)). In the end, the District Court was more than fair and

considerate of Clarke’s many scheduling problems.

       For the reasons stated in the District Court’s well-reasoned and thorough opinion,

we find that the motion to dismiss was properly granted. We therefore affirm.


                                               8
