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


2-27-2009

Nusbaum v. MBFG Ltd Partnership
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2490




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-2490
                                      ___________

                                DANIEL J. NUSBAUM,
                                                           Appellant

                                            v.

                           MBFG LTD. PARTNERSHIP,
                      D/B/A MONTEREY BAY FISH GROTTO
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                        (D.C. Civil Action No. 2:07-cv-01032)
                      District Judge: Honorable Nora B. Fischer
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 25, 2009
                 Before: BARRY, SMITH and GARTH, Circuit Judges

                            (Opinion filed:February 27, 2009)
                                       _________

                                        OPINION
                                       _________

PER CURIAM

      Plaintiff Daniel J. Nusbaum appeals pro se from a March 31, 2008, District Court

order dismissing his case with prejudice, and an April 15, 2008, order denying



                                            1
reconsideration. For the reasons that follow, we will vacate the District Court’s orders

and remand the matter for further proceedings.

                                         I. Background

       Because we write solely for the benefit of the parties, we will set forth briefly only

those facts necessary to our analysis.

       In July 2007, Nusbaum initiated an employment discrimination suit against his

former employer, MBFG Limited Partnership (“MBFG”). MBFG moved to dismiss the

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In a March 17, 2008,

order, the District Court denied MBFG’s motion to dismiss. It went on to state: “the

Court further ORDERS that Plaintiff may file a second amended complaint by March 27,

2008, if he chooses to pursue his claims against said Defendant. Failure to comply with

this Court’s Orders, Policies, and Procedures can result in dismissal for failure to

prosecute.” Nusbaum did not file a second amended complaint. On March 31, 2008, the

District Court dismissed the action with prejudice for failure to prosecute.

       Nusbaum then filed a motion pursuant to Federal Rule of Civil Procedure 59(e),

seeking reconsideration of the District Court’s March 31 dismissal order. He explained

that the March 17 denial of the motion to dismiss combined with the order’s permissive

language concerning amendment led him to believe that he could proceed with his action

without filing a second amended complaint. On April 15, 2008, the District Court denied

Nusbaum’s motion, stating that the March 31, 2008, order is not ambiguous and that



                                               2
Nusbaum should have filed a second amended complaint. Nusbaum then pursued a

timely appeal to this Court.

                                         II. Analysis

         A motion under Rule 59(e) is a “device to relitigate the original issue” decided by

the District Court, and used to allege legal error. See United States v. Fiorelli, 337 F.3d

282, 288 (3d Cir. 2003). A timely appeal from an order denying a Rule 59 motion brings

up the underlying judgment for review. See Fed. R. App. P. 4(a)(4). We examine for

abuse of discretion both the District Court’s denial of Nusbaum’s Rule 59(e) motion and

the underlying dismissal with prejudice for failure to prosecute. See Alston v. Parker,

363 F.3d 229, 233 (3d Cir. 2004); Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir.

2002).

         A dismissal with prejudice is an extreme and drastic sanction, reserved only for

appropriate cases. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867-68 (3d

Cir. 1984). Such a sanction is proper in limited circumstances, and any doubts should be

resolved in favor of reaching a decision on the merits. Emerson, 296 F.3d at 190. In

general, to determine whether the District Court abused its discretion in ordering a

dismissal with prejudice, this Court is guided by the manner in which the District Court

weighed the following considerations: (1) the party’s personal responsibility;

(2) prejudice to the adversary; (3) any history of dilatoriness; (4) whether the party’s

conduct was in bad faith; (5) the effectiveness of alternative sanctions; and (6) the merit



                                              3
of the party’s claim. Poulis, 747 F.2d at 868. Here, the District Court did not conduct

any analysis of the Poulis factors prior to ordering dismissal with prejudice.

       Appellees contend that the District Court properly declined to conduct such an

analysis because this case presents one of the rare circumstances in which a litigant’s

conduct is so egregious that Poulis need not apply. See Spain v. Gallegos, 26 F.3d 439,

454-55 (3d Cir. 1994); Guyer v. Beard, 907 F.2d 1424, 1429-30 (3d Cir. 1990).

However, the District Court did not make such a determination, and we conclude that

Guyer and Spain are inapposite. Nusbaum’s conduct is not so extreme as to clearly

suggest that he willfully intended to abandon the case, see Spain, 26 F.3d at 455, or so

contumacious as to make adjudication of his case impossible, see Guyer, 907 F.2d at

1429-30.1 The District Court should therefore have conducted an appropriate Poulis

analysis.




   1
     In his motion for reconsideration, Nusbaum explained his reason for failing to
submit a second amended complaint: he interpreted the District Court’s March 17, 2008,
order to mean that he could choose to, but was not required to, file a second amended
complaint. We note that the District Court’s order is at least somewhat ambiguous,
because the denial of MBFG’s motion to dismiss indicates that the action survived Rule
12(b)(6), which, without further explanation, implies that Nusbaum would be permitted to
proceed on his pleadings. This, coupled with the District Court’s lack of specificity
concerning any deficiencies that might require redress in an amended complaint, could
plausibly lead to confusion. While this does not easily reconcile with the District Court’s
additional directive “that Plaintiff may file a second amended complaint . . . if he chooses
to pursue his claims against said Defendant,”and Nusbaum would certainly have been
better advised to seek clarification of the District Court’s order if he indeed found it
ambiguous, Nusbaum offered a reasonable explanation that does not indicate a willful
decision to disobey a court order or to affirmatively abandon his claims.

                                              4
       This Court must determine whether the District Court properly balanced the Poulis

factors and whether the record supports its findings. See Livera v. First Nat. State Bank

of New Jersey, 879 F.2d 1186, 1194 (3d Cir. 1989). Because the District Court did not

conduct a Poulis analysis, we are unable to do so. We must therefore conclude that the

District Court abused its discretion. See id. at 1188.

       Finally, Nusbaum filed a motion to supplement the District Court record pursuant

to Federal Rule of Appellate Procedure 10(e), which permits this Court to correct a record

in cases where a material item was omitted through “error or accident,” to include his

“right to sue” letter. We see no need to add new material to the District Court record and

will therefore deny the motion.

                                        III. Conclusion

       We conclude that the District Court abused its discretion by failing to conduct a

Poulis analysis. Accordingly, we will vacate the District Court’s orders entered March

31, 2008, and April 15, 2008, and will remand this matter to the District Court for further

proceedings consistent with this opinion. We express no opinion as to whether dismissal

may or may not ultimately be warranted under Poulis. We will deny the motion to

supplement the District Court record.




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