Iowa's Window Experts LLC v. The Window Source LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IOWA’S WINDOW EXPERTS LLC
d/b/a THE WINDOW SOURCE OF
CENTRAL IOWA,
Plaintiff,
v.
THE WINDOW SOURCE LLC,
Defendant.
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Civil No. 1:24-CV-01544
Judge Jennifer P. Wilson
MEMORANDUM
This matter is before the court on Defendant The Window Source, LLC’s
(“Window Source”) motion to dismiss for failure to prosecute and accompanying
brief in support. (Docs. 40 & 41.) Therein, Window Source argues that the court
should dismiss Plaintiff Iowa Window Experts LLC d/b/a The Window Source of
Central Iowa’s (“Iowa Window”) amended complaint for failure to prosecute
pursuant to Federal Rule of Civil Procedure 41(b). (Doc. 41, pp. 5–12.) 1 For the
reasons explained below, the court will grant Window Source’s motion and
dismiss Iowa Window’s amended complaint with prejudice.
BACKGROUND
Iowa Window sued Window Source on September 11, 2024, and filed an
amended complaint on October 31, 2024. (Docs. 1, 15.) Window Source filed a
1 For ease of reference, the court cites to the page numbers from the CM/ECF header.
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second amended answer to the amended complaint and counterclaims, Doc. 30,
and Iowa Window filed an answer to the counterclaims. (Doc. 18.) Iowa Window
also filed a counseled motion for partial judgement on the pleadings as to Window
Source’s trademark infringement, unfair competition, and common law unfair
competition counterclaims pursuant to Federal Rule of Civil Procedure 12(c) and
an accompanying brief in support. (Docs. 22, p. 2; Doc. 23.) Window Source filed
a brief in opposition to Iowa Window’s motion for judgment on the pleadings,
Doc. 31, and Iowa Window filed a reply. (Doc. 32.)
On May 9, 2025, Edward T. Kang, Esquire, and Susan Moon O, Esquire,
filed a motion for leave to withdraw as Iowa Window’s counsel. (Doc. 34, p. 3.)
Therein, Kang and Moon O explained that Iowa Window failed to pay outstanding
invoices for legal services they provided. (Doc. 34, pp. 4–9.) Window Source did
not oppose the motion. (Doc. 35, p. 1.)
The court granted the motion for leave to withdraw on May 20, 2025,
ordered Kang and Moon O to serve a copy of the order on Iowa Window, ordered
Iowa Window to retain new counsel, and ordered Iowa Window to direct new
counsel to file a notice of appearance in this case no later than sixty days after
being served with the order. (Doc. 36, pp. 1–2.) The court also stayed all
deadlines in the case. (Id. at 2.) The court noted in its order that “[f]ailure of Iowa
Window Experts to comply with this order may result in a dismissal of this action
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with prejudice.” (Id. at 2.) Moon O and Kang filed a certificate confirming that
they served the court’s order on Iowa Window on July 30, 2025. (Doc. 37, pp. 1–
3.)
No new counsel entered an appearance on behalf of Iowa Window.
Accordingly, the court ordered Iowa Window to show cause why this case should
not be dismissed for failure to prosecute on September 30, 2025, and ordered the
Clerk of Court to mail the show cause order to Iowa Window. (Doc. 38, p. 1.)
Iowa Window failed to show cause or respond in any way.
On February 9, 2026, the court explained in an order that Iowa Window’s
failure to appoint new counsel, respond to the show cause order, and communicate
with the court in any way justified dismissal of Iowa Window’s amended
complaint for failure to prosecute pursuant to Federal Rule of Civil Procedure
41(b). (Doc. 39, pp. 5–11.) However, it noted that Window Source’s
counterclaims and Iowa Window’s fully briefed motion for judgment on the
pleading were still pending. (Id. at 1.) Accordingly, it declined to dismiss Iowa
Window’s amended complaint and instead ordered Window Source to either file a
status report “delineating a proposed path forward in this case or, alternatively, a
different motion it finds appropriate . . . .” (Id. at 11.)
Window Source filed a motion to dismiss this action for failure to prosecute
pursuant to Rule 41(b) and an accompanying brief in support on February 23,
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2026. (Docs. 40 & 41.) Therein, Window Source argues that an analysis of the six
factors set forth in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d
Cir. 1984), demonstrate that the court should dismiss Iowa Window’s claims for
failure to prosecute. (Doc. 41, pp. 5–13.) Window source also states that if the
court dismisses Iowa Window’s claims with prejudice, Window Source will
“voluntarily stipulate[] to the dismissal of its counterclaims.” (Id. at 12.)
S TANDARD OF REVIEW
Federal Rule of Civil Procedure 41(b) provides that if “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.” It continues that “[u]nless the dismissal
order states otherwise, a dismissal under this subdivision (b),” except one for a
specifically enumerated list of reasons, “operates as an adjudication on the merits.”
Fed. R. Civ. P. 41(b). A failure to prosecute may result in dismissal of the
complaint with prejudice. See Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.
1992); Hamer v. LivaNova Deutschland GmbH, 994 F.3d 173, 177 n.6 (3d Cir.
2021).
For a court to determine whether to dismiss a claim or action for failure to
prosecute, it must balance the six factors the Third Circuit discussed in Poulis:
(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
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effectiveness of sanctions other than dismissal, which entails an
analysis of alternative sanctions; and (6) the meritoriousness of the
claim or defense.
747 F.2d at 868. Not all the Poulis factors must be satisfied for a district court to
dismiss a complaint, no solitary factor is determinative, and the factors do not hold
equal weight. Mindek, 964 F.2d at 1373; Pressley v. Forrest, No. 10-CV-3270,
2013 WL 5567569, at *4 (E.D. Pa. Oct. 8, 2013) (citing Adonai–Adoni v. King,
07–CV–3689, 2012 WL 3535922, *2 (E.D. Pa. June 7, 2012). Instead, the
decision to dismiss a claim or complaint pursuant to Rule 41(b) “constitutes an
exercise of the district court judge’s discretion . . . .” Mindek, 964 F.2d at 1373.
DISCUSSION
The first Poulis factor weighs in favor of dismissal because Iowa Window is
entirely and personally responsible for the delay at issue. Poulis, 747 F.2d at 868.
Iowa Window’s former counsel went to great lengths to inform it of its outstanding
balance and the eventual filing of a motion to withdraw. (Doc. 34, pp. 3–7, Doc.
34-1, pp. 2–9.) The court ensured that Iowa Window received its order granting
counsel’s motion to withdraw and the show cause order. (Doc. 37, p. 1
(confirming service of the court’s order granting the motion to withdraw)); Doc.
38, p. 1 (ordering that the clerk of court send the show cause order to two separate
Iowa Window addresses found in the amended complaint and certificate of
service).) Now, 167 days after the court entered the show cause order, Iowa
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Window has neither indicated that it retained new counsel nor responded to the
court’s show cause order. “[B]ecause a corporation cannot represent itself in
federal court, [the corporation] bears substantial personal responsibility to follow
the Court’s orders and appoint new counsel.” Williams-Lester v. Vision Fin. Corp.,
No. CV 15-6662, 2017 WL 457184, at *5 (E.D. Pa. Feb. 1, 2017). Thus, the court
finds that Iowa Window is responsible for the delay in retaining new counsel and
failing to respond to the court’s show cause order.
The second Poulis factor also weighs slightly in favor of dismissal because
Window Source sets forth that it has suffered prejudice due to Iowa Window’s
delay. Poulis, 747 F.2d at 868. “[I]rretrievable loss of evidence and the inevitable
dimming of witnesses’ memories” as well as “an inability to prepare ‘a full and
complete trial strategy’” are examples of prejudice sufficient to support the
dismissal of a case. Hildebrand v. Allegheny Cnty., 923 F.3d 128, 134 (3d Cir.
2019) (quoting Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984)
(cleaned up); Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)). In its
motion, Window Source alleges that “the passage of time may have resulted in the
loss of evidence” and the dimming of witnesses’ memories, and that Window
Source “could not further its own claims and/or defenses without Iowa[] Windows
retaining counsel . . .” because Iowa Windows is a corporate plaintiff. (Doc. 41, p.
8.) 	The court stayed all deadlines in this case after it granted the motion to
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withdraw. (Doc. 36, p. 2.) Therefore, Window Source has not needed to expended
time and effort attempting to meet case management or discovery deadlines. See
Sloan v. Sloan Constr. Co., No. 25-1063, 2025 WL 2651290, at *2 (3d Cir. Sept.
16, 2025) (holding that delay that keeps the opposing party in a “state of limbo,”
without more, is insufficient to establish prejudice). However, Window Source has
identified how it has been prejudiced by Iowa Window’s delay through a potential
loss of evidence and an inability to pursue its own claims, so this factor weighs
slightly in favor of dismissal.
The third Poulis factor weighs in favor of dismissal because Iowa Window’s
failure to respond to two court orders over the course of several months indicates a
history of dilatory conduct. Poulis, 747 F.2d at 868. The court examines Iowa
Window’s “problematic acts . . . in light of its behavior over the life of the case.”
Adams v. Trs. of N.J. Brewery Emps.’ Pension Tr. Fund, 29 F.3d 863, 875 (3d Cir.
1994). “Extensive or repeated delay or delinquency constitutes a history of
dilatoriness, such as consistent non-response to interrogatories, or consistent
tardiness in complying with court orders.” Briscoe v. Klaus, 538 F.3d 252, 260 (3d
Cir. 2008) (quoting Adams, 29 F.3d at 874).
Generally speaking, ne or two late filings do not always constitute a history
of dilatory conduct. Id. at 261 (citing Scarborough, 747 F.2d at 875); Sloan, 2025
WL 2651290, at *2. But here, Iowa Window completely failed to comply with or
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respond to two separate orders that the court took care to ensure that it received.
(Doc. 36, p. 1; Doc. 38, p. 1.) Its deadline to reply to the show cause order—
October 31, 2025—expired more than four months ago. (Doc. 38, p. 1.) Its
deadline to retain new counsel—September 29, 2025—expired more than five
months ago. (Doc. 36, p. 1.) It has filed nothing on the docket since its former
counsel submitted a certificate of service seven months ago on August 4, 2025.
(Doc. 37.) These are technically two instances of non-compliance, but they
spanned months and were accompanied by a complete lack of engagement in the
case. The court finds that this is sufficient to establish a history of dilatory
conduct.
The fourth Poulis factor weighs in favor of dismissal because Iowa
Window’s consistent failure to communicate with the court demonstrates willful
conduct. Poulis, 747 F.2d at 868. Willfulness “must be considered with an eye
towards ‘intentional or self-serving behavior.’” Sloan, 2025 WL 2651290, at *3
(quoting Hildebrand, 923 F.3d at 135). Iowa Window has failed to comply with or
respond to two separate court orders despite the court’s warning that failure to do
so could result in the dismissal of its case. (Doc. 36, p. 2; Doc. 38, p. 1); See
Williams-Lester, 2017 WL 457184, at *5 (“VFC consistently failed to comply with
the Court's orders despite a warning about the consequence of noncompliance,
which evidences bad faith”); Mack v. Travelers Pers. Ins. Co., No. 3:22-CV-
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00523, 2022 WL 17480419, at *7 (M.D. Pa. Nov. 3, 2022), report and
recommendation adopted as modified, No. 3:22-CV-523, 2022 WL 17477099
(M.D. Pa. Dec. 6, 2022) (“Here, Plaintiffs’ failure to abide by multiple Orders by
the Court and failure to file briefs in opposition to GEICO’s motions to dismiss
‘demonstrate[s] a willful disregard for procedural rules and court directives’”)
(quoting Gilyard v. Dauphin Cty. Work Release, No. 10-1657, 2010 WL 5060236,
at *2 (M.D. Pa. Dec. 6, 2010)). Thus, the court finds that Iowa Window’s
consistent silence despite orders requiring a response was willful.
The fifth Poulis factor weighs in favor of dismissal. Poulis, 747 F.2d at 868.
“[A]lternative sanctions are unlikely to be effective against a party who refuses to
communicate with the Court,” and imposing a fine after Iowa Window ignored two
court orders is unlikely to force compliance. Bowie v. Perry, No. 1:19-CV-13,
2019 WL 2412488, at *2 (W.D. Pa. May 13, 2019), report and recommendation
adopted, No. CV 19-13, 2019 WL 2410796 (W.D. Pa. June 7, 2019). Moreover,
Iowa Window is currently without counsel, so it has “no attorney upon whom the
[court] could impose the expenses for failing to comply with the court’s orders . . .
.” Briscoe, 538 F.3d at 263. Accordingly, the court finds that no adequate
alternative sanctions are available.
The sixth Poulis factor weighs against dismissal because Iowa Window’s
breach-of-contract claim is meritorious. Poulis, 747 F.2d at 868; (Doc. 15, pp. 7–
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9.) “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. Iowa Window’s
amended complaint raises one claim of breach of contract against Window Source.
(Doc. 15, ¶¶ 26–34.) Under Pennsylvania law, the elements of a breach of contract
claim are (1) the existence of a contract; (2) a breach of the contract; and (3)
damages resulting from the breach. Doe v. Univ. of Scis., 961 F.3d 203, 211 (3d
Cir. 2020) (quoting Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law
Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016)).
In its amended complaint, Iowa Window alleges that it entered a license
agreement with Window Source, Window Source breached the agreement by
failing to allow Iowa Window to exercise a right of first refusal to purchase
licensing specific sales “territory” as contemplated by the license agreement, and
Iowa Window lost profits and marketing costs as a result. (Doc. 15, ¶¶ 5–34.)
Iowa Window therefore sets forth a plausible breach of contract claim. See Univ.
of Scis., 961 F.3d at 211. Moreover, Window Source did not move to dismiss Iowa
Window’s amended complaint for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6). See Hildebrand, 923 F.3d at 137 (“[The claim’s]
meritoriousness is further evidenced by the fact that the [Defendant] filed three
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motions to dismiss in this case, none of which argued that the ADEA claim was
not pled with the specificity needed to survive a Rule 12(b)(6) motion to dismiss.”)
Window Source asserts several affirmative defenses. (Doc 30, ¶¶ 35–55.)
For example, it alleges that the right of first refusal Iowa Window describes was
not a “valid modification of the licensing agreement” and that Iowa Window did
not meet the sales quotas necessary to invoke that right. (Id. ¶¶ 45, 47; see Doc.
41, pp. 10–11 (arguing that Iowa Window’s argument about the right of first
refusal fails because the parties’ agreement did not contain a right of first refusal,
its argument about the duty of good faith and fair dealing fails because such a
claim “does not lie separately from the terms of the contract itself,” and Iowa
Window’s argument about its exclusive territory fails because Window Source
never modified Iowa Window’s designated territory) (quoting Diodato v. Wells
Fargo Ins. Servs., USA, Inc., 44 F. Supp. 3d 541, 560 (M.D. Pa. 2014).)
“Where a plaintiff makes out a prima facie case, but the defendant raises a
prima facie defense, the [sixth Poulis factor] may not weigh in favor of the
plaintiff.” Adams, 29 F.3d at 876–77 (citing Poulis, 747 F.2d at 870). But where
“the case is close, ‘doubts should be resolved in favor of reaching a decision on the
merits.’” Hildebrand, 923 F.3d at 132 (quoting Adams, 29 F.3d at 870).
Accordingly, and without the benefit of discovery to further analyze the
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meritoriousness of the claims and defenses at issue, the court finds that this sixth
factor weighs against dismissal.
CONCLUSION
Five of six Poulis factors weigh in favor of dismissal. Poulis, 747 F.2d at
868. Therefore, the court will grant Window Source’s motion to dismiss for lack
of prosecution, Doc. 40, and dismiss Iowa Window’s amended complaint, Doc. 15,
with prejudice. An order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania
Dated: March 16, 2026
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