You're viewing Docket Item 85 from the case Alexander Thomas III v. Bonanno et al. View the full docket and case details.

Download this document:




Case: 3:13-cv-00006-CVG-RM Document #: 85 Filed: 02/19/14 Page 1 of 8

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

Plaintiffs,
v.


HAROLD ALEXANDER THOMAS, III; and
HAMILTON BRYAN,



JOSEPH BONNANO; WEST ESSEX MANAGEMENT
CORPORATION; TURN AROUND ENTERPRISES,
LLC; LIEUTENANT GOVERNOR OF THE VIRGIN
ISLANDS, GREGORY R. FRANCIS, in his
official capacity,


Defendants.



)
)
)
)
)
) Civil No. 2013–06
)
)
)
)
)
)
)
)
)

Pro se

Pro se


ATTORNEYS:

Harold Alexander Thomas, III


Hamilton Bryan


Jennifer Jones, Esq.
Law Offices of Jennifer Jones
St. Thomas, VI


Vincent F. Frazer, Attorney General
Tamika Archer, AAG
Virgin Islands Department of Justice
St. Thomas, VI



ORDER



For the defendants Joseph Bonnano; West Essex Management
Corporation; and Turn Around Enterprises, LLC

For the defendant Lieutenant Governor of the Virgin Islands
Gregory R. Francis

GÓMEZ, J.

Before the Court are the motions of defendants Joseph
Bonnano (“Bonnano”) and West Essex Management Corporation

Case: 3:13-cv-00006-CVG-RM Document #: 85 Filed: 02/19/14 Page 2 of 8

Thomas v. Bonanno
Civil No. 2013–06
Order
Page 2
(“Essex”) to dismiss the plaintiffs’ complaint pursuant to
Federal Rule of Civil Procedure 41.

I.

FACTUAL AND PROCEDURAL HISTORY

This action was initiated on January 23, 2013. The


defendants filed various motions to dismiss. Thereafter, and
before the Court had ruled on the motions to dismiss, the
plaintiffs, Harold Alexander Thomas III (“Thomas”) and Hamilton
Bryan (“Bryan”), filed a motion for expedited review, (ECF No.
9), a motion for emergency relief, (ECF No. 11), and a motion
titled “Motion for Judgment as a Matter of Law.” (ECF No. 55.)

On July 30, 2013, the Court granted the defendants’ motions
to dismiss in part, and ordered Thomas and Bryan to amend their
complaint and serve it on all parties not later than August 30,
2013. On August 23, 2013, the Court found Thomas and Bryan’s
motions for expedited review and emergency relief to be moot, as
no amended complaint had yet been filed. On October 30, 2013,
long after the August 30, 2013, deadline, the Court found Thomas
and Bryan’s “Motion for Judgment as a Matter of Law” moot. The
Court stated that, though the deadline to do so had long since
passed, Thomas and Bryan had not yet filed an amended complaint.
As such, there was no complaint on which judgment could be
entered.

On November 4, 2013, Bonnano and Essex renewed their
motions to dismiss, this time citing Federal Rule of Civil

Case: 3:13-cv-00006-CVG-RM Document #: 85 Filed: 02/19/14 Page 3 of 8

Thomas v. Bonanno
Civil No. 2013–06
Order
Page 3
Procedure 41 (“Rule 41”), as well as Federal Rule of Civil
Procedure 12 (“Rule 12(b)(6)”).

II. DISCUSSION

Rule 41 states that “[i]f the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.” Fed. R.
Civ. P. 41(b).1

A district court's decision to invoke this sanction is
discretionary. Scarborough v. Eubanks, 747 F.2d 871, 875 (3d
Cir. 1984) (applying abuse of discretion standard of review). In
deciding the defendants' motion to dismiss the plaintiffs'
complaint for want of prosecution pursuant to Rule 41(b), this
Court must weigh and balance the six factors provided by the
Third Circuit in Poulis. Scarborough, 747 F.2d 871 (applying
Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 868
(3d Cir. 1984), test to Rule 41(b) dismissal).

Those factors are:(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

1 Bonnano and Essex both cited to Rule “41(m).” No such rule exists, however
it is clear from the motions that both defendants intended to appeal to Rule
41(b).

Case: 3:13-cv-00006-CVG-RM Document #: 85 Filed: 02/19/14 Page 4 of 8

Thomas v. Bonanno
Civil No. 2013–06
Order
Page 4
an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense. Poulis, 747 F.2d at
868. The Court need not find that all of the Poulis factors
weigh against the opposing party to find that dismissal is
warranted. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988),
cert. denied, 488 U.S. 1005 (1989).

Before deciding a motion to sanction a party with

dismissal, the Court must ensure that the party against whom it
is being sought has actual notice of the motion. Dunbar v.
Triangle Lumber & Supply Co., 816 F.2d 126, 129 (3d Cir. 1987).
The purpose of this requirement is to ensure that parties are
given an opportunity to defend themselves against the
consequences of their attorney's misconduct. Curtis T. Bedwell &
Sons v. Intl. Fidelity Ins. Co., 843 F.2d 683, 693 n. 19 (3d
Cir. 1988).

III. ANALYSIS

It is beyond contention that Thomas and Bryan are aware of
the instant motions. They are both representing themselves pro
se, and have been granted access to the electronic filing system
for purposes of this case. (ECF No. 32, Order Granting Leave to
File Electronically.) They have used said system since then for
purposes of this case. Having determined that Bryan and Thomas
had access to the instant motions and all previously docketed
court orders, the Court will now turn to the the Poulis factors.

Case: 3:13-cv-00006-CVG-RM Document #: 85 Filed: 02/19/14 Page 5 of 8

Thomas v. Bonanno
Civil No. 2013–06
Order
Page 5

The first factor the Court must consider is the extent of

the non-moving party’s personal responsibility. Poulis, 747 F.2d
at 868. The Court notes that Thomas and Bryan are proceeding pro
se and they thus bear full responsibility for the litigation.
See Adonai-Adoni v. King, 506 F. App’x 116, 119 (3d Cir. 2012)
(citing Briscoe v. Klaus, 538 F.3d 252, 258-59 (3d Cir. 2008)
(noting that a pro se plaintiff is personally responsible for
the progress of his case and compliance with a court’s orders)).
Since the Court’s July 30, 2013, Order, Thomas and Bryan have
not filed an amended complaint or served the amended complaint
on all named defendants in accordance with Federal Rule of Civil
Procedure 4 as instructed. Thus, the first factor weighs in
favor of dismissal.

The second factor focuses on the prejudice to the

defendants caused by the failure to respond to the Court’s
orders. Poulis, 747 F.2d at 868. “Prejudice” under the Poulis
test does not refer to “irremediable” harm. Curtis T. Bedwell,
843 F.2d at 693. Rather, it can consist of the extra costs of
repeated delays and filing of motions necessitated by the
improper behavior on the part of plaintiffs. Id. at 693–94;
Poulis, 747 F.2d at 868. Thomas and Bryan’s failure to comply
with the Court’s July 30, 2013, Order was the event
precipitating Bonnano and Essex’s motions. In that sense, they
have burdened the defendants by forcing them to file motions

Case: 3:13-cv-00006-CVG-RM Document #: 85 Filed: 02/19/14 Page 6 of 8

Thomas v. Bonanno
Civil No. 2013–06
Order
Page 6
simply to try and compel Thomas and Bryan to comply with basic
procedural requirements. See, e.g., Andrews v. Gov’t of the
Virgin Islands, 1321 F.R.D. 405, 412 (D.V.I. 1990) aff'd, 935
F.2d 1280 (3d Cir. 1991) (finding that behavior by the
plaintiffs which forced the defendants to file motions to
attempt to force action on the plaintiffs’ part was
prejudicial). Thus, the second factor weighs in favor of
dismissal.

The third factor considers whether the non-moving party has

a history of dilatoriness. Poulis, 747 F.2d at 868. As pointed
out in Curtis T. Bedwell, “[i]n Poulis, one failure to answer
interrogatories and a failure to file a pre-trial statement were
sufficient to support a dismissal.” 843 F.2d at 694. The
circumstances in the instant case, a failure to respond to any
of the commands of the Court’s July 30, 2013, Order, for five
months, rises to at least the level of that in Poulis. Thus,
the third factor favors dismissal.

The fourth factor considers whether the conduct of the

party or the attorney was willful or in bad faith. Poulis, 747
F.2d at 868. In the instant case, it is clear that Thomas and
Bryan were aware of the Court’s July 30, 2013, Order. Thomas
and Bryan mention the July 30, 2013, Order in their “motion to
disqualify Judge Curtis v. Gomez.” (ECF No. 74.) Thomas and
Bonnano, in their motion for disqualification, state that the

Case: 3:13-cv-00006-CVG-RM Document #: 85 Filed: 02/19/14 Page 7 of 8

Thomas v. Bonanno
Civil No. 2013–06
Order
Page 7
July 30, 2013, Order is of “no legal effect.” (ECF No. 74.) This
indicates that, not only are Thomas and Bonnano aware of the
July 30, 2013, but they do not intend to comply with it. Their
failure to comply is not accidental or inadvertent. Therefore,
the fourth factor favors dismissal.

The fifth factor looks at the effectiveness of sanctions
other than dismissal. Poulis, 747 F.2d at 868. “In general, a
sanction should be directed toward the particular abuse that has
occurred.” Andrews, 132 F.R.D. at 413. Here the July 30, 2013,
Order instructed Thomas and Bryan to file an amended complaint
and to properly serve the defendants in this case. Failure to
file a complaint or to serve the defendants would typically be
sanctioned either by granting the plaintiffs leave to amend or
by dismissal. See Fed. R. Civ. P. 12(b). The July 30, 2013,
Order, denying the motions to dismiss and granting Thomas and
Bryan leave to amend and properly serve the defendants, did not
lead to compliance. As such, it seems unlikely that leave to
amend in this matter would result in a more favorable outcome.
The only remaining sanction typically employed in this
circumstance is dismissal. Thus, the fifth factor favors
dismissal.

Finally, the sixth factor considers the meritoriousness of

the claim or defense. Poulis, 747 F.2d at 868. The standard
under which this factor is determined is that of a dismissal for

Case: 3:13-cv-00006-CVG-RM Document #: 85 Filed: 02/19/14 Page 8 of 8

Thomas v. Bonanno
Civil No. 2013–06
Order
Page 8
failure to state a claim on which relief can be granted: “A
claim ... will be deemed meritorious when the allegations of the
pleadings, if established at trial, would support recovery by
plaintiff....” Id. at 869–70. As the Court has previously
noted, Thomas and Bryan have failed to file an amended
complaint. As such, the Court lacks sufficient information from
which to determine the merit of their contentions.


GRANTED.


The premises considered, it is hereby
ORDERED that Bonnano and Essex’s motions to dismiss are



S\






CURTIS V. GÓMEZ
District Judge