                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                          No. 17-2868 & 17-3495 (consolidated)
                                      __________

                                    JEAN COULTER,
                                              Appellant

                                             v.

             PAUL LAURENCE DUNBAR COMMUNITY CENTER;
     GRACE YOUTH AND FAMILY FOUNDATION; CATHERINE DONNELLY;
       HEATHER D. DOVENSPIKE; WILLIAM M. HALLE; JOHN L. WISE, III;
    DOUGLAS FROST; LEEANN MEALS; ROBERT PATER; MATTHEW PEROTTI;
      CLARICE SHAY; ERIC WEIMER; LOUISE BAULDAUF; JENNIFER LINN;
      THE LINN LAW GROUP; MIN OFFSTEIN; LORRAINE J. DIDOMENICO;
     JOYCE KLARA; UNKNOWN BOARD MEMBER EMPLOYED BY BUTLER
           AREA SCHOOL DISTRICT; UNKNOWN BOARD MEMBER
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                            (D.C. Action No. 2:16-cv-00125)
                      District Judge: Honorable Arthur J. Schwab
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 1, 2019

            Before: CHAGARES, BIBAS and GREENBERG, Circuit Judges

                             (Opinion filed: March 19, 2019)
                                     ___________

                                        OPINION*
                                       ___________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Pro se appellant Jean Coulter appeals from the judgment of the United States District

Court for the Western District of Pennsylvania dismissing her complaint pursuant to Fed-

eral Rules of Civil Procedure 12(b)(6) and 41(b). For the following reasons, we will affirm

in part and vacate in part.

       Because we write primarily for the parties, we will only recite the facts necessary

for our discussion. In February 2016, Coulter initiated this action against the now-defunct

Paul Laurence Dunbar Community Center (“Dunbar Center”), the Grace Youth and Family

Foundation, the Linn Law Group, and various individuals, relating to a $50,000 loan she

made to the Dunbar Center. The Dunbar Center then filed an offer of judgment in the

amount of $59,000, pursuant to Federal Rule of Civil Procedure 68, which Coulter did not

accept. The defendants moved to dismiss her complaint, and Coulter filed a motion for

recusal, which was subsequently denied. Coulter then filed an amended complaint.

       The named defendants, in two groups, then filed motions to dismiss all the claims

in the amended complaint except the breach of contract claims against the Dunbar Center.

Coulter filed a renewed motion for recusal. The District Court granted the motions to

dismiss, and, after dismissing all the claims on which they sought dismissal, dismissed

what remained for lack of subject-matter jurisdiction. In its order, the District Court also

denied Coulter’s motion for recusal as moot. Coulter appealed, and we vacated and re-

manded for the District Court to consider whether Coulter’s state law claims could satisfy

the amount in controversy requirement in order to establish diversity jurisdiction. See


                                             2
Coulter v. Paul Laurence Dunbar Cmty. Ctr., 685 F. App’x 161 (3d Cir. 2017). Addition-

ally, we determined that Coulter’s amended complaint included a claim for fraudulent in-

ducement, and, while not expressing an opinion on the District Court’s ruling under Rule

12(b)(6), instructed the Court to “expressly address Coulter’s fraudulent inducement claim

. . . including the possibility of amendment, before dismissing it under [Federal] Rule [of

Civil Procedure] 12(b)(6).” Id. at 166.

       On remand, the District Court concluded that it had diversity jurisdiction over Coul-

ter’s claims and ordered the defendants to respond to Coulter’s amended complaint. The

named defendants, in two groups, filed renewed motions to dismiss all the claims in the

amended complaint except the breach of contract claim against the Dunbar Center. The

District Court, considering the motions and response, as well as our earlier opinion, granted

the defendants’ motions, dismissing all claims except the breach of contract claim asserted

against the Dunbar Center.1 The District Court determined that allowing Coulter to further


1
  The District Court concluded that Coulter’s allegations in her amended complaint failed
to state a claim as to all claims except her breach of contract claim against the Dunbar
Center. The Court determined that she had failed to set forth any factual allegations
against the individually named defendants, as she stated only that they were “responsi-
ble” for all claims presented. See Connelly v. Lane Constr. Corp., 809 F.3d 780, 789–90
(3d Cir. 2016). The Court concluded that Coulter failed to state a claim against the Linn
Group since she, similarly, failed to set forth any factual allegations connecting this de-
fendant to any of her claims. The Court further held that Coulter failed to state a breach
of contract claim against any of the defendants, except the Dunbar Center, since she
failed to set forth a plausible basis for holding the other defendants liable for her loan
agreement with the Dunbar Center. Additionally, the District Court held that Coulter did
not have standing to bring any claim for gross negligence or gross mismanagement. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). The District Court also dis-
missed Coulter’s claim for fraud in the inducement on the basis that she failed to plead
her claim with particularity, as required by Federal Rule of Civil Procedure 9. Finally,
the District Court concluded that Coulter failed to state a civil conspiracy claim, since she
                                              3
amend her complaint would be futile. Coulter filed a motion for reconsideration of the

Court’s dismissal order and a second renewed motion for recusal, which were both denied

by the District Court. Two days after the District Court’s denial, the Dunbar Center filed

a motion to dismiss for failure to prosecute. While that motion was pending, Coulter filed

a notice of appeal, which opened C.A. No. 17-2868. The District Court granted the Dunbar

Center’s motion and dismissed Coulter’s remaining claim for failure to prosecute. Coulter

again filed a motion for reconsideration, which the District Court denied. Coulter then

filed another notice of appeal, which opened C.A. No. 17-3495. The two pending appeals

have been consolidated for disposition.

       We have jurisdiction pursuant to 28 U.S.C. § 1291.2 We exercise plenary review

over the District Court’s decision to grant a motion to dismiss. Fleisher v. Standard Ins.

Co., 679 F.3d 116, 120 (3d Cir. 2012). We review the dismissal for failure to prosecute

and the imposition of Rule 16 sanctions for abuse of discretion. Briscoe v. Klaus, 538 F.3d

252, 257 (3d Cir. 2008); Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 237 (3d

Cir. 2007).




failed to allege an underlying tort claim. See Boyanowski v. Capital Area Intermediate
Unit, 215 F.3d 396, 405–06 (3d Cir. 2000).
2
 When Coulter filed her first appeal, her breach of contract claim against the Dunbar
Center remained pending in the District Court, and thus her appeal was from a nonfinal
order. See Fed. R. Civ. P. 54(b); Hill v. City of Scranton, 411 F.3d 118, 124 (3d Cir.
2005). However, she took her later appeal from the District Court’s final judgment, and a
challenge to that order allows her to challenge the District Court’s earlier decisions. See
McAlister v. Sentry Ins. Co., 958 F.2d 550, 552–53 (3d Cir. 1992).

                                            4
       First, Coulter challenges the District Court’s dismissal of her claims of fraud in the

inducement.3 Under Pennsylvania law, a plaintiff alleging fraud in the inducement must

prove the following elements: “(1) a representation; (2) which is material to the transaction

at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is

true or false; (4) with the intent of misleading another into relying on it; (5) justifiable

reliance on the misrepresentation; and (6) the resulting injury was proximately caused by

the reliance.” Eigen v. Textron Lycoming Reciprocating Engine Div., 874 A.2d 1179,

1185 (Pa. Super. Ct. 2005) (citation and quotation marks omitted). In federal court, a plain-

tiff additionally must comply with Federal Rule of Civil Procedure 9, which requires that

“a party must state with particularity the circumstances constituting fraud.” Fed. R. Civ.

P. 9(b); see also In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 347 (3d Cir. 2010)

(discussing the “heightened pleading requirement[s]” of Rule 9(b)). Specifically, a plain-

tiff must allege “‘the date, time and place of the alleged fraud or otherwise inject precision

or some measure of substantiation into a fraud allegation’ and must state ‘the circumstances

of the alleged fraud with sufficient particularity to place the defendant on notice of the

precise misconduct with which it is charged.’” Shuker v. Smith & Nephew, PLC, 885 F.3d




3
  On appeal, Coulter devotes the majority of her brief to arguing that the District Court
erred in dismissing her fraud and breach of contract claims. Though Coulter briefly men-
tions the District Court’s rulings regarding the dismissal of her other claims, she does not
present an argument regarding these claims. Therefore, Coulter has waived any argu-
ments regarding these claims on appeal. See Travitz v. Northeast Dep’t ILGWU Health
& Welfare Fund, 13 F.3d 704, 711 (3d Cir. 1994); Fed. R. App. P. 28(a)(8). However,
we note that Coulter’s additional claims were properly dismissed, substantially for the
reasons provided by the District Court. See supra n.1; Dkt # 69, at 5–13.
                                              5
760, 778 (3d Cir. 2018) (quoting Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir.

2007)).

       We agree with the District Court’s conclusion relating to Coulter’s allegations about

the Dunbar Center’s “deceptions related to the source of the supposed cash flow problems.”

Dkt # 29, at 23. This statement alone is insufficient since Coulter has not indicated what

the misrepresentation was (or whether it was actually made by the defendant; she instead

seems to state she determined, on her own, that the Dunbar Center was experiencing cash

flow problems). See id. at 9. Additionally, Coulter failed to state a claim regarding the

agreement that the loan would cover the Dunbar Center’s standard operating procedures.

We agree with the District Court that “whether or not the complained-of expenses are part

of the Dunbar Center’s ‘standard operations’ is a matter of contract interpretation—not

fraud.” Dkt # 69, at 12.

       However, the District Court failed to consider a second, related claim of fraud in the

inducement based on Coulter’s claim that the Dunbar Center engaged in fraud by stating

that its Board had approved the loan. Related to that claim, Coulter sufficiently pleaded

many of the elements of fraud in the inducement. She alleged that Catherine Donnelly, the

Dunbar Center’s then-acting Executive Director, in a July 30, 2013 phone call, made a false

representation that the Board had approved the loan. Coulter alleged that she later deter-

mined that the Board was not aware of the presence of the loan, and was instead led to

believe that the amount was a donation. See dkt # 29, at 10. She alleged intent, stating

that Donnelly had previously told Coulter that Donnelly needed approval from the Board

before she could finalize the loan, see id. at 9; and justifiable reliance, stating that Coulter

                                               6
entered into the loan agreement with the executive director of the Dunbar Center, see id. at

11.

        However, Coulter did not plead the element of materiality, as she has not alleged

that she would not have entered into the agreement had she believed at the time that the

Board did not know of the loan agreement.4 Eigen, 874 A.2d at 1186 (“A misrepresentation

is material if the party would not have entered into the agreement but for the misrepresen-

tation.”). Furthermore, Coulter did not plead with particularity that her injury was proxi-

mately caused by her reliance on the misrepresentation. Instead, Coulter appears to allege

that the injury caused by the misrepresentation was what she believes was a mismanage-

ment of finances, leading to the eventual closure of the Dunbar Center. Coulter has not,

however, alleged that the misrepresentation led to the Dunbar Center’s failure to repay the

loan.

        Therefore, we agree that the District Court properly dismissed Coulter’s fraud in the

inducement claims. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam)

(“W[e] may affirm the District Court's judgment on any basis supported by the record.”).

However, the District Court erred in dismissing the claims with prejudice, since, “[i]n most

instances where plaintiffs fail to plead fraud with particularity . . . district courts should

dismiss the fraud claim ‘with leave to amend the deficient pleading.’” Shuker, 885 F.3d at

779. As noted above, our prior opinion in this case instructed the District Court to consider



4
  However, Coulter appears to argue on appeal that she would not have entered into the
loan agreement had she known that the Board was not aware of their obligation to repay
the loan. Appellant’s Brief, at 12.
                                              7
the possibility of amendment as to Coulter’s fraudulent inducement claim. A review of

Coulter’s response to the defendants’ renewed motions to dismiss shows that Coulter re-

quested the opportunity to further amend her complaint. Although the District Court de-

termined that amendment would be futile as to one of Coulter’s fraudulent inducement

claims, the District Court did not consider whether she could amend to state a fraudulent

inducement claim based her assertion that the Dunbar Center falsely represented that its

Board had approved the loan. And while we do not express any opinion about whether

Coulter will state a claim, as we explained in our prior opinion, when we considered the

same complaint, “we see nothing suggesting that Coulter’s claim for fraudulent inducement

is legally certain to fail.” Coulter, 685 F. App’x at 165. Therefore, in light of our prior

instructions and Coulter’s request, Coulter should be given one additional opportunity to

amend. Accordingly, we will vacate the dismissal of the fraud in the inducement claims to

the extent that it was with prejudice and without leave to amend.

       Additionally, Coulter challenges the District Court’s dismissal of her breach of con-

tract claim for failure to prosecute. Before dismissing for failure to prosecute, a district

court must balance: “(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 . . . 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.” Poulis v. State

Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (emphasis omitted). Our function

is to determine whether the District Court properly balanced the Poulis factors and whether

                                              8
the record supports its findings. See Livera v. First Nat’l State Bank of N.J., 879 F.2d

1186, 1194 (3d Cir. 1989) (citing Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988)).

       Although we appreciate the District Court’s efforts to analyze the Poulis factors, we

conclude that the District Court abused its discretion in imposing the harsh sanction of

dismissal under the facts of this case.5 See Dyotherm Corp. v. Turbo Mach. Co., 392 F.2d

146, 148–49 (3d Cir. 1968) (explaining that “[d]ismissal is a harsh sanction which should

be resorted to only in extreme cases”).

       The District Court properly noted that Coulter is “solely responsible for the progress

of [her] case,” as she proceeded pro se. See Briscoe, 538 F.3d at 258–59. The District

Court also properly noted that Coulter’s failure to attend a case management conference

(and her failure to contact the Court or the Dunbar Center regarding her absence), did prej-

udice the Dunbar Center’s ability to shape its litigation strategy and prevented the case

from moving forward. However, because the Dunbar Center represented that it was pre-

pared to seek summary judgment and does not appear to have incurred significant ex-

penses, the prejudice was not especially great. See id. at 259 (explaining that prejudice

includes, inter alia, “the inevitable dimming of witnesses’ memories,” and “the excessive

and possibly irremediable burdens or costs imposed on the opposing party”) (quotation

marks and citation omitted). There is also evidence in the record of Coulter’s failure to




5
 Coulter argues on appeal that the District Court lacked jurisdiction to dismiss the breach
of contract claim. However, as the District Court determined, it had diversity jurisdiction
over Coulter’s claims. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830
(1989).
                                             9
comply with court imposed deadlines and orders, including an objectionable failure to com-

ply with the District Court’s order for the parties to conduct a Rule 26(f) conference. How-

ever, Coulter’s delay was not extensive or without explanation. Cf. Adams v. Trs. of N.J.

Brewery Emps.’ Pension Tr. Fund, 29 F.3d 863, 874 (3d Cir. 1994) (“Extensive or repeated

delay or delinquency constitutes a history of dilatoriness, such as consistent non-response

to interrogatories, or consistent tardiness in complying with court orders.”).

       Furthermore, the District Court’s finding regarding bad faith is undermined by

Coulter’s repeated explanations that she had difficulty in complying with the Court’s filing

deadlines and was unable to register for CM/ECF as ordered to by the District Court. Alt-

hough her explanation for her absence at the case management conference was tardy, she

did state in her motion for reconsideration that her absence was inadvertent and that she

only realized that she had missed the conference after the Court had entered its dismissal

order. See dkt # 88, at 1–3. The evidence in the record supports the conclusion that at least

some of her actions resulted from negligence and inadvertence more than willfulness. See

Briscoe, 538 F.3d at 262 (“Generally, ‘[w]illfulness involves intentional or self-serving

behavior.’ If the conduct is merely negligent or inadvertent, we will not call the conduct

‘contumacious.’”) (internal citations omitted) (quoting Adams, 29 F.3d at 875 and citing

Poulis, 747 F.2d at 868–69). Additionally, it is not clear to us why the District Court con-

cluded that monetary sanctions would not have been effective as an alternative to dismissal.

       Lastly, although the District Court ruled that the sixth factor favors the Dunbar Cen-

ter, the sixth factor cuts at least both ways. No one disputes that Coulter states a claim for



                                             10
breach of contract. There is a question whether the claim would survive summary judg-

ment, because the Dunbar Center asserted that it would raise the defense of full perfor-

mance at summary judgment (based on its previous attempt to repay the loan in full). How-

ever, Coulter countered that argument, claiming that Dunbar Center has, at best, only par-

tially complied with the contract, as she continues to assert her right to collect interest on

the principal amount. As the record on this issue is not developed and the matter is not

before us, we express no opinion on what the ultimate outcome should be. We only note

that it is not clear at this point which has greater merit, the claim or the defense.

       Therefore, although we agree with the District Court that Coulter’s conduct fell

short of what can be reasonably expected of a litigant, on balance, under the particular

factual circumstances of this case, it was an abuse of discretion to impose the extreme and

harsh penalty of dismissal. We will vacate the District Court’s order dismissing Coulter’s

breach of contract claim, and allow the District Court to decide if a lesser sanction is ap-

propriate.

       However, we conclude that the District Court did not abuse its discretion in award-

ing reasonable attorney fees and costs to the Dunbar Center. Pursuant to Federal Rule of

Civil Procedure 16, the District Court is required to impose reasonable attorney fees and

costs incurred because of a party’s noncompliance with the Court’s case management or-

ders, unless the District Court “finds that the noncompliance was substantially justified or

that other circumstances make an award of expenses unjust.” Tracinda Corp., 502 F.3d at

241. Though Coulter’s absence at the case management conference may not have been

willful or in bad faith, the District Court previously warned Coulter that failure to comply

                                              11
with its orders would result in the imposition of sanctions. Therefore, and given that the

District Court has “very broad discretion . . . to ‘use sanctions where necessary’ to ensure

compliance with pretrial orders,” we affirm the District Court’s imposition of sanctions

pursuant to Rule 16. See id. at 242 (quoting In re Sanction of Baker, 744 F.2d 1438, 1440

(10th Cir. 1984).

       To the extent that Coulter challenges the orders denying her motions for recusal

pursuant to 28 U.S.C. § 455, we review these decisions for abuse of discretion, see In re

Kensington Int’l Ltd., 368 F.3d 289, 300–01 (3d Cir. 2004), and find none.

       For the foregoing reasons, we will affirm in part, vacate in part, and remand the

matter for proceedings consistent with this opinion.




                                            12
