                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-29-2007

Reshard v. Lankenau Hospital
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3170




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Recommended Citation
"Reshard v. Lankenau Hospital" (2007). 2007 Decisions. Paper 175.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/175


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                                                 NOT PRECEDENTIAL
                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                                   No: 06-3170

                             CONNIE C. RESHARD,

                                         Appellant

                                          v.

        THE LANKENAU HOSPITAL, d/b/a, a/k/a MAIN LINE HEALTH;
       DR. MICHAEL J. GLASSNER; DR. JOHN SCHILLING; DR. MARK
     E. SCOTT; DR. KIMBERLY M. LENHARDT; DR. THOMAS J. MEYER;
DR. GEOFFREY P. TREMBLAY; UNKNOWN RESIDENT; MAIN LINE HOSPITAL
                INCORPORATED, a/k/a The Lankenau Hospital
                           _______________

                    Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                              (D.C. No. 02-cv-01787)
                     District Judge: Hon. R. Barclay Surrick
                                 _______________

                    Submitted Under Third Circuit LAR 34.1(a)
                               November 8, 2007

      Before:   SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.

                           (Filed: November 29, 2007)
                                _______________

                           OPINION OF THE COURT
                               _______________

JORDAN, Circuit Judge.
       In this medical malpractice case, Connie C. Reshard appeals the final judgment of

the United States District Court for the Eastern District of Pennsylvania, dismissing her

complaint for failure to prosecute. For the reasons stated below, we affirm.

                                             I.

       Reshard, a member of the Pennsylvania Bar, brought this medical malpractice suit

pro se against Lankenau Hospital and six doctors in 2002. Although no significant

discovery had taken place, over 140 documents and motions had been filed in the case by

the time it was reassigned to the Honorable R. Barclay Surrick from another District

Judge. Judge Surrick denied all outstanding motions and ordered the discovery process to

be started anew.

       On November 26, 2003, the District Court ordered Lankenau Hospital to allow

Reshard to inspect all of its records pertaining to her treatment and ordered her to produce

before February 9, 2003 a statement from a qualified licensed professional indicating that

there was a reasonable probability that the defendants’ conduct in treating her fell outside

acceptable professional standards. December 1, 2003, Reshard filed four new motions,

which requested personal information from the District Judge and sought to vacate the

Court’s previous scheduling and discovery orders. The District Court denied all four

motions in an order dated December 31, 2003. In early 2004, Reshard attempted to




                                             2
appeal that order and certain other orders of the District Court, but her appeal was

dismissed by this Court on November 16, 2004 for lack of jurisdiction.1

       Although Reshard had an appointment to inspect the Lankenau Hospital records,

she did not keep that appointment and did not reschedule. Nor did she produce the

required statement from a qualified licensed professional. On February 20, 2004, the

District Court held a scheduling conference. Reshard did not appear and did not contact

the Court to explain her absence.

       Over two years later, on April 28, 2006, the District Court dismissed the case sua

sponte for failure to prosecute. At the time the District Court dismissed the case, Reshard

had not contacted either the Court or the defendants since the missed February 20, 2004

scheduling conference.

       The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction

under 28 U.S.C. § 1291.

                                             II.

       We review a district court’s dismissal for failure to prosecute for abuse of

discretion. Spain v. Gallegos, 26 F.3d 439, 454 n.17 (3d Cir. 1994). On appeal, Reshard

argues that the dismissal was improper for three reasons. First, she argues that the

dismissal was improper because the District Court acted sua sponte and did not notify her

that it planned to dismiss. However, district courts have inherent power to dismiss sua

  1
   This Court also dismissed on November 16, 2004 an appeal filed by Reshard in March
2003.

                                             3
sponte for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).

Moreover, “a District Court may dismiss a complaint for failure to prosecute even without

affording notice of its intention to do so or providing an adversary hearing before acting.”

Id. at 633.

       Next, Reshard argues that the dismissal for failure to prosecute was improper

because the District Court misapplied the applicable legal standard. We disagree. When

considering whether to dismiss a case for failure to prosecute, courts generally should

consider the factors set forth in Poulis v. State Farm Fire and Casualty Co., 747 F.2d

863, 868 (3d Cir. 1984):

              (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.

In this case, the District Court considered the Poulis factors and concluded that all of

them, except for the meritoriousness of the claim, favored dismissal. With respect to the

meritoriousness of Reshard’s claim, the District Court found that Reshard’s own conduct

in delaying the discovery process made that factor impossible to assess. In light of these

findings, and under the circumstances of this case, we cannot say that the District Court

abused its discretion in dismissing the case.




                                                4
       Third, and finally, Reshard argues that the District Court was without jurisdiction

to enter the order of dismissal (or any other order) because Reshard had appeals pending

before this Court. Once again, we disagree. Reshard’s appeals were dismissed by this

Court for lack of jurisdiction because the orders she was attempting to appeal from were

not final within the meaning of 28 U.S.C. § 1291 and were not immediately appealable as

collateral orders. As such, they did not deprive the District Court of jurisdiction:

              [T]he jurisdiction of the lower court to proceed in a cause is
              not lost by the taking of an appeal from an order or judgment
              which is not appealable. ... Indeed, a contrary conclusion
              would enable a litigant temporarily to deprive a district court
              of jurisdiction at any non-critical or critical juncture including
              trial itself, thus bringing proceedings in the district court to a
              standstill while a non-appealable ruling wends its way
              through the appellate process.

Venen v. Sweet, 758 F.2d 117, 121 (3d Cir. 1985) (internal quotation and citation

omitted). Accordingly, Reshard’s improper appeals did not preclude the District Court

from proceeding with this case and, ultimately, dismissing it for failure to prosecute.   2



  2
    Because we hold that the District Court’s dismissal was proper, we decline to address
Reshard’s arguments regarding certain allegedly erroneous orders entered by the District
Court prior to dismissing the case. Indeed, to the extent that Reshard argues that her
actions (or lack thereof) in this case would be excused by an erroneous order, she is
incorrect. See Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974) (“If a litigant could
refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a
dismissal for failure to prosecute, and then obtain review of the judge's interlocutory
decision, the policy against piecemeal litigation and review would be severely
weakened.”); Spain v. Gallegos, 26 F.3d 439, 454 (3d Cir. 1994) (“A party disappointed
with a court’s ruling may not refuse to proceed and then expect to obtain relief on appeal
from an order of dismissal or default.”).
       We also reject Reshard’s assertion that Judge Surrick appears to be biased against
her. The only basis Reshard offers in support of her allegation of bias is Judge Surrick’s

                                              5
                                           III.

       We have considered the remainder of Reshard’s arguments and find them

unpersuasive. For the foregoing reasons, we affirm the judgment of the District Court.




legal rulings, which are insufficient to establish that Judge Surrick was biased. See Liteky
v. United States, 510 U.S. 540, 555-56 (1994).

                                             6
