                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-2009

Bruce Buccolo v. Thomas Orr
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1215




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ALD-68                                                         NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                     No. 08-1215
                                     ___________

                              IN RE: LORI BUCCOLO

                                 THOMAS J. ORR

                                              v.

                                 BRUCE BUCCOLO,
                                               APPELLANT


                  On Appeal from the United States District Court
                           for the District of New Jersey
                           (D.C. Civil No. 07-cv-03543)
                    District Judge: Honorable Mary L. Cooper
                   ____________________________________

     Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
       Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                December 24, 2008

           Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                           (Opinion filed: January 22, 2009
                                     _________

                                      OPINION
                                      _________




PER CURIAM

    As the parties are familiar with the facts of this case, we will describe its details
only as necessary. In short, Bruce Buccolo appeals from an order dismissing, for failure

to prosecute, his appeal in the District Court of two decisions in an adversary action

related to his wife’s bankruptcy case. In the adversary action to evict Buccolo from a

home titled in his wife’s name alone, his wife’s trustee in bankruptcy won a default

judgment; Buccolo failed in his bid to file an answer out of time.

       We review a dismissal for failure to prosecute for abuse of discretion through the

lens of the Poulis factors, asking also whether the District Court should have considered a

less severe sanction. See In re Jewelcor Inc., 11 F.3d 394, 397 (3d Cir. 1993).

Specifically, we consider the District Court’s balancing of “(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.” Emerson v. Thiel College, 296 F.3d 184, 190

(3d Cir. 2002) (citing Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir.

1984)). On consideration of these factors, we conclude that Buccolo’s appeal is without

merit, and dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).

       Buccolo proceeded pro se, so the responsibility for any failure to prosecute falls on

him. See Emerson, 296 F.3d at 190. Buccolo’s adversary was prejudiced in that delay in

that the appeal in District Court protracted the underlying bankruptcy proceedings. Also,



                                               2
in the appeal, the District Court had prima facie evidence of dilatory tactics. Buccolo did

not comply with the Bankruptcy Rules for filing a brief within 15 days of the docketing of

his appeal, see Fed. R. Bankr. P. 8009(a)(1), or for providing for the transcript of the

Bankruptcy Court proceedings, see Fed. R. Bankr. P. 8006. Either of these violations is

grounds for dismissal under Bankruptcy Rule 8001. The District Court may have

overstated Buccolo’s history of dilatory behavior by citing his failure to answer the

complaint in the underlying adversary proceeding. Whether he should have answered the

complaint sooner (including questions of service and his counsel’s role in the failure to

respond) or whether he should have been provided with his requested extension of time

were considerations “relevant only when the [D]istrict [C]ourt consider[ed] the appeal on

the merits,” not when it ruled on whether Buccolo had failed to prosecute his appeal. In

re Jewelcor Inc., 11 F.3d at 399. However, the District Court also determined that

Buccolo willfully introduced the delays before it because he was able to promptly respond

to the District Court’s order to show cause why the appeal should not be dismissed for

failure to prosecute. The District Court also concluded that a lesser sanction would not be

effective because the trustee would not be able to “proceed with the adversary proceeding

and the bankruptcy case.”

       In evaluating the merits, the District Court stated that the Bankruptcy Court did not

err in denying Buccolo’s request to file his answer more than five months after the

complaint was filed. There appears to have been some confusion about issues of service



                                              3
in the Bankruptcy Court and whether it was Buccolo or his counsel who acted improperly

in failing to file an answer in response to the complaint. Compare NHL v. Metro. Hockey

Club, 427 U.S. 639, 642 (1976) and Zawadski De Bueno v. Bueno Castro, 822 F.2d 416,

421 (3d Cir. 1987) with Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 75 (3d Cir. 1987).

However, in considering whether to enter default judgment and disallow the out-of-time

answer, the Bankruptcy Court also concluded that the trustee was entitled to a final

judgment of possession for the “same reason . . . expressed previously as to why the

trustee was entitled to [a] preliminary order.” Transcript from hearing held 6/25/07, 16.

That reason, which Buccolo contested on various grounds in his brief in the District Court

(along with his arguments relating to his counsel’s culpability),1 appears unassailable.

       Nonetheless, even if the consideration of the merits of Buccolo’s claim or defense

does not tip the scales for or against dismissal, it cannot be said that the District Court

abused its discretion in concluding that on balance, dismissal was warranted.2 See Curtis

T. Bedwell & Sons, Inc. v. Int’l Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988)

(holding that not all Poulis factors must weigh in favor of dismissal). Accordingly, we

dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).



   1
     Ordinarily, “[a] claim, or defense, will be deemed meritorious when the allegations of
the pleadings, if established at trial, would support recovery by plaintiff or would
constitute a complete defense.” Poulis, 747 F.2d at 869-70. As Buccolo filed an appeal
in the District Court, not a complaint, we consider the arguments in his brief instead.
   2
   In coming to this conclusion, we have considered the five-page argument we invited
Buccolo to submit as well as the subsequent unbidden filings by the parties.

                                               4
