NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 17-2989 _______________

PAUL COX, Appellant

v.

UNITED PARCEL SERVICE, INC.; INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL UNION 401 _______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-15-cv-02013) District Judge: Honorable James M. Munley _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on September 6, 2018

Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges

(Filed: October 10, 2018)

OPINION*

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not constitute binding precedent. BIBAS, Circuit Judge.

If a party gets four extensions of his discovery deadlines and blows through them all

without justification, he may well not get a fifth chance. The District Court here was admi-

rably patient with Paul Cox, but that patience is finite. It repeatedly warned him that it

would dismiss his case unless he complied. When Cox flouted the Court’s deadline yet

again, the Court was entirely justified in following through and dismissing the case with

prejudice.

I. BACKGROUND

Paul Cox was a mechanic for UPS until his supervisor forced him to resign. He sued

UPS and his union, Local Union 401, International Brotherhood of Teamsters, for alleged

wrongs surrounding his resignation. When the parties tried to engage in discovery, Cox

dragged his feet. He missed a deadline to respond to the union’s document requests. And

then he missed another deadline to respond to UPS’s interrogatories and document request.

The parties sought and received a discovery extension from the Court. But still Cox did

not respond. So UPS and the union asked the Court to intervene. After a discovery confer-

ence, the Court adopted the parties’ proposed discovery order. The order required Cox to

respond to the discovery requests within a week or face dismissal of the case. Despite this

second extension, Cox did not respond.

Instead, the day after the Court-ordered deadline passed, he asked for a third extension.

Four days later, the Court granted that extension and gave him two more days to respond.

The court again warned Cox, by hand-writing on its order, that “[f]ailure to comply w[ould]

result in the dismissal of this action.” Supp. App. 64. But Cox again did not comply. When

2 the deadline came, his responses to UPS and the union were incomplete and unverified and

lacked detail.

Twice more, Cox moved for discovery extensions. Despite Cox’s conduct, the Court

acquiesced and granted him a few more days—his fourth extension. He missed that dead-

line too.

After all this, UPS and the union moved to dismiss. Applying the Poulis discovery-

sanction factors, the District Court dismissed Cox’s case with prejudice. Poulis v. State

Farm Fire & Cas. Co.,

(3d Cir. 1984); Cox v. UPS, No. 15-cv-2013,

, at *7 (M.D. Pa. July 26, 2017). The Court did not affirmatively find

that Cox’s repeated delays had prejudiced UPS and the union, but still held that the Poulis

factors favored dismissal. Cox,

, at *5.

Cox now appeals. Though dismissal with prejudice is an “extreme sanction,” we defer

to trial courts, reviewing only for abuse of discretion. Poulis,

, 870 (quoting

Nat’l Hockey League v. Metro. Hockey Club, Inc.,

(1976) (per curiam)).

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DISMISSING COX’S CASE FOR HIS REPEATED VIOLATIONS OF DISCOVERY DEADLINES

To decide whether dismissal is an appropriate sanction, courts in this circuit exam-

ine Poulis’s six factors:

3 (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.

(emphases in original, line breaks added). No one factor is dispositive.

Briscoe v. Klaus,

(3d Cir. 2008). And a court may dismiss a case even

if not all the factors are satisfied.

In applying the Poulis factors and dismissing Cox’s

case with prejudice, the District Court did not abuse its discretion.

A. The extent of the party’s personal responsibility

The first factor asks whether the party himself, as opposed to the party’s counsel, “bears

personal responsibility for the action or inaction which led to the dismissal.” Adams v. Trs.

of N.J. Brewery Emps.’ Pension Tr. Fund,

(3d Cir. 1994). Here, in re-

sponse to a discovery request, Cox made no effort to get and disclose his tax returns. So

the District Court found that this factor favored dismissal. Cox,

, at *4-

5. We agree.

B. Prejudice to the adversary

On this record, the District Court could not find that there was or was not prejudice.

“We are sympathetic to [UPS and the union’s] argument, yet the record . . . does not contain

examples of specific or generalized instances of prejudice, sufficient to allow the court to

4 determine the nature and extent thereof.” Id. at *5. So the District Court found the prejudice

factor to be “neutral.” Id.

Cox emphasizes the lack of proof of prejudice. But prejudice is just one of the six fac-

tors, not a prerequisite for dismissal. We see no abuse of discretion here.

C. History of delay

Cox missed so many deadlines that the District Court found it easier to list all the times

that Cox did meet a deadline—that list is shorter. Id. at *5. “[T]he court and [UPS and the

union] were compelled to consistently prod [Cox] into action.” Id. We agree with the Dis-

trict Court that this factor “weigh[s] heavily in favor of dismissal.” Id. at *6.

D. Willfulness of delay

The District Court repeatedly warned Cox that his case would be dismissed unless he

provided complete discovery responses. Despite those warnings, Cox never responded ad-

equately. He failed to obey repeated court orders and to provide requested discovery, and

offered no plausible explanation for his noncompliance. All of those failures evince will-

fulness. Curtis T. Bedwell & Sons v. Int’l Fid. Ins. Co.,

(3d Cir. 1988).

And his counsel admits that “Cox withheld his tax returns and [the] identity of his employ-

ers after UPS” simply because “Cox did not want to disclose [them].” Cox Br. at 9-10.

Withholding documents because you do not want to disclose them is textbook bad faith.

So we agree with the District Court that the willfulness factor “weighs heavily in favor of

sanctions.” Cox,

, at *6.

5 E. Alternative sanctions

The District Court concluded that this factor also favors dismissal. But it did not analyze

all the options. It said it could not do so without more information, “to wit, the discovery

plaintiff failed to provide.” Id. at *7.

That reasoning is inadequate and circular. Rule 37 authorizes a list of sanctions for

situations when “a party . . . fails to obey an order to provide or permit discovery.” Fed. R.

Civ. P. 37(b)(2)(A). In other words, courts should use and analyze these sanctions precisely

because they lack the information discovery provides. Yet the District Court used that lack

of information to justify not analyzing at least two of the listed sanctions that could apply

to this case: staying proceedings until Cox obeyed the discovery orders, or treating Cox’s

failures as contempt of court. Fed. R. Civ. P. 37(b)(2)(A)(iv), (vii).

But here, those alternative sanctions would have been inadequate. Staying further pro-

ceedings would not have sanctioned Cox, but rewarded him for stalling. Given Cox’s fail-

ure to respond to discovery requests under the threat of dismissal, additional threats of

contempt and monetary sanctions were unlikely to induce Cox’s compliance. Any other

sanctions listed in Rule 37 would have been, as the District Court said, “tantamount to a

dismissal” and would only have delayed entering judgment against Cox. Cox,

, at *7 (quoting Curtis T. Bedwell & Sons,

). So we agree, though

for slightly different reasons, that this factor favors dismissal.

F. Merits of the claim

Under the merits factor, a court will treat a claim or defense as meritorious when the

pleadings make out a prima facie case or a complete defense. Poulis,

.

6 When both sides can make out prima facie cases, this factor can be neutral. Curtis T. Bed-

well & Sons,

. The District Court concluded both that Cox made a prima

facie showing of his case and that UPS and the union made prima facie showings of their

defenses. Cox,

, at *6. We agree, so this factor is neutral.

G. Weighing all the Poulis factors

After weighing all the Poulis factors, the District Court found that dismissal with prej-

udice was an appropriate sanction. Id. at *7. Four of the six factors favor dismissal. Two

are neutral. None favors Cox. The test is holistic and does not demand proof of prejudice.

And though dismissal with prejudice is an extreme sanction, Cox was warned multiple

times that this would be the sanction for failing to comply. He could have heeded those

warnings, but did not. We will affirm.

7