Difrancesco v. Aramark Corp , 169 F. App'x 127 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-1-2006
Difrancesco v. Aramark Corp
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2026
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Difrancesco v. Aramark Corp" (2006). 2006 Decisions. Paper 1492.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1492
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2026
JOHN DIFRANCESCO,
Appellant
v.
ARAMARK CORPORATION;
ARAMARK SERVICEMASTER;
ARAMARK MANAGEMENT SERVICES, LP;
LANKENAU HOSPITAL;
ARAMARK FOOD & SUP SVS AGENT FOR ARAMARK
HEALTHCARE SUPPORT SERVICES;
SERVICEMASTER MANAGEMENT SERVICES, LP.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Civil 04-CV-05647
District Judge: The Honorable Marvin Katz
Submitted Under Third Circuit LAR 34.1(a)
January 10, 2006
Before: BARRY and AMBRO, Circuit Judges, and DEBEVOISE,* District Judge
(Filed: March 1, 2006)
*
The Honorable Dickinson R. Debevoise, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
OPINION
BARRY, Circuit Judge
The District Court dismissed John DiFrancesco’s employment discrimination case
without prejudice because he failed to comply with its scheduling order. For the reasons
stated herein, we will reverse.
John DiFrancesco was employed as a housekeeper and cleaner at Lankenau
Hospital between November 2, 1987 and December 6, 2002. He suffers from a number
of psychiatric and neurological disorders, including seizures, tics, mild mental retardation,
and obsessive-compulsive disorder. He alleges that, while he was employed at Lankenau,
one or more of the defendants were his employers and discriminated against him because
of his disabilities, in violation of federal and Pennsylvania law.
On December 6, 2004, DiFrancesco filed suit against the defendants in the United
States District Court for the Eastern District of Pennsylvania. His complaint alleged that
the defendants had violated the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., and
the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951 et seq. On December
9, 2004, the District Court issued a scheduling order. The order set a pretrial conference
for March 3, 2005, required the parties to exchange necessary trial documents by
February 26, 2005, set the close of discovery for March 4, 2005, and scheduled the case
2
to be ready for trial on April 8, 2005. Most importantly for present purposes, it stated:
1. SERVICE. COUNSEL FOR PLAINTIFF SHALL SERVE A
COPY OF THIS ORDER UPON COUNSEL FOR THE DEFENDANT
AS SOON AS THE IDENTITY OF COUNSEL IS LEARNED. Service
of the Complaint shall be completed so as not to delay the implementation
of this Order.
Notwithstanding this order, DiFrancesco did nothing until March 1, 2005, two
days before the scheduled pretrial conference. On that day, his attorney faxed a letter to
the District Court, explaining that he had not yet served the defendants with the
complaint, that he anticipated amending the complaint to add an Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., claim within two weeks, and that he
intended to serve the complaint once amended. He requested a continuance of the pretrial
conference until late April, a request the District Court immediately denied “with leave to
raise the issue at the pretrial conference.”
Later that same day, DiFrancesco’s attorney faxed a second letter to the District
Court. This second letter “inform[ed] the Court of some factors I did not include
previously:” that due to an office move and reorganization, he had failed to mark the
conference in his calendar and had therefore committed himself to attend a conference in
another case on the same day. He repeated his request for a continuance and offered,
“[a]s a last resort,” to have local counsel attend in his place. In reply, in a one-sentence
order on March 2, 2005, the District Court dismissed DiFrancesco’s complaint without
prejudice “for plaintiff’s failure to comply with the court’s Order of December 9, 2004,
3
specifically [paragraph 1, quoted above].”
On March 16, 2005, DiFrancesco moved for reconsideration of the dismissal, to
amend the complaint to add an ADA claim, and to extend for 45 days the time within
which to serve the defendants. On March 17, 2005, the District Court, again in a one-
sentence order, held that the motion had not been filed within ten days as required by its
Local Rule 7.1(g) and, therefore, denied it as untimely. Later that day, DiFrancesco filed
a second motion for reconsideration, in which he explained, correctly, that the first
motion for reconsideration had in fact been filed within ten days, once intervening
weekend days were taken into account. The next day, March 18, 2005, the District Court
held in a third one-sentence order that “the Motion for reconsideration is DENIED
because it is without merit. See the court’s Order of March 2, 2005.” On April 1, 2005,
DiFrancesco filed a timely notice of appeal.1
We have jurisdiction over final orders of district courts under 28 U.S.C. § 1291.
While a dismissal without prejudice would ordinarily not be final, it is final where the
applicable statute of limitations would not permit the refiling of a claim. Ahmed v.
Dragovich, 297 F.3d 201, 207 (3d Cir. 2002). The parties do not dispute that
DiFrancesco’s Rehabilitation Act claim was subject to a two-year statute of limitations
that ran out between the filing of his complaint and the dismissal. See also, e.g., Barclay
1
DiFrancesco has since refiled his complaint in Pennsylvania state court. That suit was
removed to federal court by the defendants and is currently pending before the same
District Judge who presided over the case now before us.
4
v. AMTRAK, 343 F. Supp. 2d 429 (E.D. Pa. 2004) (borrowing Pennsylvania two-year
statute of limitations for Rehabilitation Act claim). Therefore, we have jurisdiction to
review the dismissal of DiFrancesco’s Rehabilitation Act claim. We would review a
district court’s decision to dismiss with prejudice for abuse of discretion. Emerson v.
Thiel College, 296 F.3d 184, 190 (3d Cir.2002). Where a dismissal without prejudice
would not permit the refiling of a claim because the applicable statute of limitations has
since run out, the same abuse of discretion standard of review governs. Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992); see also Umbenhauer v.
Woog, 969 F.2d 25, 28-29 (3d Cir. 1992) (applying abuse of discretion review to
dismissal without prejudice under an earlier version of Fed. R. Civ. P. 4(m)).
The District Court indicated that the dismissal was for failure to comply with its
December 9, 2004 scheduling order. See Fed. R. Civ. P. 16(f), 41(b). In deciding
whether such a dismissal is an abuse of discretion, we scrutinize the manner in which a
district court weighed six factors:
“(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.”
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 867 (3d Cir. 1984); see also
Emerson, 296 F.3d at 184. A district court “must consider [the Poulis] factors before
dismissing a complaint.” Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir. 1984).
5
Indeed, we have held that dismissals based on the apparent default of counsel require the
court not just to balance the Poulis factors but also to provide the litigant notice and a
hearing. Dunbar v. Triangle Lumber & Supply Co., 816 F.2d 126, 129 (3d Cir. 1987).
Even where the attorney’s actions are “flagrant,” a litigant’s potentially meritorious claim
is not to be dismissed in the absence of evidence that the litigant bears any personal
responsibility. Id. Here, the District Court neither considered the Poulis factors nor
provided DiFrancesco with the opportunity to respond to the threat of dismissal. That
was an abuse of discretion.
We also believe that dismissing the complaint would have been an abuse of
discretion even upon a proper consideration of the Poulis factors. With respect to the first
factor, the extent of the litigant’s personal responsibility, the delay was caused by
DiFrancesco’s attorney, not DiFrancesco himself. With respect to the second factor, the
prejudice to the adversary caused by the delay, the defendants have not identified any
prejudice they suffered as a result of DiFrancesco’s delay. Defendants claim only that
they should “not be forced to defend multiple complaints,” but the multiplicity of suits is
a consequence of the dismissal, not of the delay.2 With respect to the third factor, the
litigant’s history of dilatory behavior, there is no evidence that DiFrancesco and his
attorney have been the cause of any other delays. The defendants argue that
2
On remand, we anticipate that this case and the case currently pending in the District
Court will be consolidated, eliminating even this slight “prejudice.”
6
DiFrancesco’s decision to file on the last day within the limitations period and to take no
further action until March is dilatory conduct. Except so far as doing so conflicted with
the scheduling order, DiFrancesco had a right to wait, and exercise of that right was not
improper delay.3
With respect to the fourth factor, whether the conduct was the result of bad faith,
there is no evidence that the delay was willful or in bad faith. DiFrancesco’s attorney
offered an innocent, if somewhat weak, explanation for his failure to calendar the
conference and to comply with the order. There has been no showing that the explanation
offered was false or pretextual. With respect to the fifth factor, the effectiveness of
alternative sanctions, the District Court had undisputed authority to impose other
sanctions for failure to comply with its authority, but did not explain why only the harsh
remedy of dismissal would suffice. With respect to the sixth factor, the meritoriousness
of the claim, we consider a claim meritorious if its allegations are sufficient to state a
claim. Scarborough, 747 F.2d at 875. The defendants do not contest the potential merit
of DiFrancesco’s claim.
As the District Court did not properly consider the Poulis factors and each of those
3
Under Federal Rule of Civil Procedure 4(m), DiFrancesco had 120 days from the
filing of the complaint to serve a copy of the complaint and summons on the defendants.
The case was dismissed 86 days after the filing, well within that time. As far as the Rules
are concerned, DiFrancesco was under no compulsion to initiate service earlier. See
Henderson v. United States, 517 U.S. 654, 661, 663 (1996) (“Complaints are not to be
dismissed if served within 120 days, or within such additional time as the court may
allow.”)
7
factors weighs against dismissal, we will reverse the order dismissing DiFrancesco’s
complaint.
8