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


8-16-2005

Gagliardi v. Courter
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1207




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Recommended Citation
"Gagliardi v. Courter" (2005). 2005 Decisions. Paper 692.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/692


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                                                NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT

                          NO. 05-1207
                       ________________

                       JOHN GAGLIARDI,

                                 Appellant

                                 v.

   JOHN W. COURTER; ALBERT BALAS; ROBERT TATE, ESQ.;
         JAMES E. CONTEEN; AL FIRTKO, former Collection
          Officer and Auctioneer, and An unspecified number of
         JOHN DOES and JANE DOES of the Internal Revenue
 Services Department of Treasury; INTERNAL REVENUE SERVICE,
           a federal agency; UNITED STATES OF AMERICA;
      JACK CARGNONI, a private individual; DAVID TOMKO,
a private individual; DONALD J. LEE, United States District Judge

            ____________________________________

          On Appeal From the United States District Court
             For the Western District of Pennsylvania
                     (D.C. Civ. No. 02-cv-02035)
           District Judge: Honorable Thomas I. Vanaskie
          _______________________________________

            Submitted Under Third Circuit LAR 34.1(a)
                        August 10, 2005

    Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                    (Filed : August 16, 2005)
                   _______________________

                          OPINION
                   _______________________
PER CURIAM

       Appellant John Gagliardi appeals the District Court’s order dismissing his

complaint for failure to prosecute. We will affirm.

       In November 2002 Gagliardi filed a complaint against the defendants arising out

of a seizure by the IRS of certain property to collect unemployment taxes owed by U.S.

Industrial Fabricators, Inc., a corporation owned and controlled by Gagliardi. This is at

least the sixth action brought by Gagliardi arising out of the seizure. In Gagliardi v.

United States, Civ. No. 02-cv-00216 (W.D. Pa. August 23, 1993), the court dismissed

with prejudice a Bivens action brought by Gagliardi and granted the defendants’ motion

to enjoin Gagliardi from filing further claims in the United States District Court for the

Western District of Pennsylvania against agents or employees of the IRS in connection

with the seizure.

       After the defendants in the present action reminded Gagliardi of this injunction,

the court granted his motion to dismiss the individual IRS agents named in the action,

leaving unresolved a motion to dismiss filed by defendants Lee, the United States and the

IRS. On Gagliardi’s motion the matter was stayed in May 2003 and subsequently

resumed in August 2004. The order lifting the stay directed Gagliardi to respond to the

motion to dismiss within fifteen days of the date of the order.

       Three months later Gagliardi had still not responded. Addressing the factors set

forth by this Court in Adams v. Trustees of New Jersey Brewery Employees’ Pension

Trust Fund, 29 F.3d 863 (3d Cir. 1994), the District Court dismissed the complaint with
prejudice for failure to prosecute. The court explained that the failure to comply with the

court’s order was solely Gagliardi’s fault, that the defendants were prejudiced by his

failure to comply, that Gagliardi has been “less than diligent” in pursuing the case, and

that he does not appear to have a meritorious cause of action because the remaining

defendants all enjoy immunity from suit. Moreover, “Gagliardi has persisted in pursuing

baseless litigation pertaining to events that happened more than a decade ago, despite his

prior lack of success and the court orders that bar his continued resort to the courts.”

Order at 4. The court concluded that dismissal was the most appropriate sanction in light

of Gagliardi’s disregard of the previous injunction. This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s

dismissal for failure to prosecute for abuse of discretion. Emerson v. Thiel College,

296 F.3d 184, 190 (3d Cir. 2002). After thorough review of the record, we agree with the

District Court’s reasons for dismissing Gagliardi’s complaint and conclude that it did not

abuse its discretion in doing so. Accordingly, we will affirm the judgment of the District

Court. The appellees’ motion for sanctions and appellant’s motion to recuse and for an

evidentiary hearing are denied.
