Jason Roman v. City of Reading

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2076
JASON ROMAN,
Appellant
v.
CITY OF READING;
READING POLICE DEPARTMENT
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 02-cv-04763
(Honorable Cynthia M. Rufe)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 24, 2005
Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges
(Filed February 11, 2005 )
OPINION OF THE COURT
SCIRICA, Chief Judge.
At issue is whether the District Court abused its discretion when it dismissed
Appellant Jason Roman’s claim with prejudice under Fed. R. Civ. P. 37. We will affirm.

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I.
A.
The following facts appear to be undisputed. On June 14, 2002, Roman, who is
African-American, was driving through Reading late in the evening when several bullets
struck his car. Roman drove away from the scene. He subsequently observed police cars
a few blocks away at a store, in which several police officers were investigating a
robbery. Roman stopped to report the incident. When Roman approached one of the
policemen, who was white, the officer instructed Roman to wait in his car where someone
would shortly assist him. After waiting fifteen minutes, Roman phoned a friend to call
911 to report the shooting, and when there was no response, Roman himself phoned 911
twice to report the shooting and request assistance.
After approximately forty-five minutes, two police officers inside the store
approached Roman and listened to his report of the incident. The interview lasted about
fifteen minutes and the officers gave Roman their card and an incident number. The
police performed no follow-up investigation.
Roman initiated a § 1983 action pro se on July 18, 2002 against Appellees City of
Reading and the Reading Police Department. He alleged a substantive due process
violation due to the appellees’ failure to provide constitutionally sufficient services; he
alleged, pursuant to policy or custom, the police treated him differently because of his

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race in violation of the Equal Protection Clause; and, he alleged the appellees’ conduct
placed unreasonable restrictions on his constitutional right to travel.
B.
We now discuss in detail the procedural history, elements of which ultimately
served as the basis for dismissing the complaint. Appellees filed a motion to dismiss on
September 18, 2002. On October 29, 2002, three weeks after the expiration of the
deadline for filing a response to the appellees’ motion, Roman sought a thirty-day
extension to respond, claiming health problems prevented his ability to respond earlier.
The court granted Roman a week, setting the new deadline at December 6, 2002. Roman
subsequently missed the deadline, filing a week late on December 13. The court granted
the appellees’ motion to dismiss as uncontested under Local Rule of Civil Procedure
7.1(c) and dismissed the complaint with leave to file an amended complaint by January 2,
2003. Roman failed to do so.
On January 27, 2003, Roman filed an opposition to appellees’ motion to dismiss,
which the District Court dismissed as moot. On February 26, 2003, Roman moved to
vacate the District Court’s Order of December 13, 2002, which had dismissed the
complaint. Roman claimed he had never received copies of the order extending the
response deadline to December 6, 2002, or the order dismissing the complaint. While
remaining in dubitante of Roman’s excuses for filing late, the District Court nonetheless
accepted them as a sufficient basis to vacate its prior order dismissing the complaint. On

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April 3, 2003, the court issued an order reinstating the complaint and the appellees’
motion to dismiss.
On April 21, 2003, the court granted in part and denied in part the appellees’
motion to dismiss. The court dismissed Roman’s substantive due process claim, but
denied the motion with respect to the Equal Protection and right to travel claims. The
court then set August 15, 2003, as the deadline for discovery and September 15, 2003, as
the deadline for dispositive motions.
Roman made no filings during the discovery period. The District Court ordered a
status update on September 22, 2003, to which the appellees responded shortly thereafter,
explaining that neither party had conducted any discovery and requesting additional time
to do so. Roman did not respond to the District Court or the appellees. Not addressing
the appellees’ request for an extension of discovery, the court directed Roman to file
pretrial memoranda by March 9, 2004, set March 25, 2004, as the pretrial conference and
April 6, 2004, for the trial pool.
On October 10, 2003, the appellees served on Roman the first set of
interrogatories, a request for production of documents and things, and a notice of
deposition on November 3, 2003. Roman failed to respond to the interrogatories and
document request by the deadline. He also failed to appear for the deposition. In a letter
to defense counsel, Roman explained that he mistakenly believed the deposition was
scheduled for December 3, 2003, and asked defense counsel to contact his newly retained

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attorney, W. Thomas Anthony, Jr. On November 17, 2003, appellees sent a letter to Mr.
Anthony again posing their interrogatory and document request and enclosed a second
notice of deposition for November 17, 2003. On November 14, 2003, Mr. Anthony
notified defense counsel that he could not attend the deposition, but that he was available
on December 3, 2003. In response, the appellees served a third notice of deposition for
that date and asked again for responses to the interrogatories, document request, and
Roman’s Rule 26(a)(1) initial disclosures.
The deposition took place on December 3, 2003. At the end of the deposition, Mr.
Anthony stated on the record, in Roman’s presence, that he would provide the
information requested in the interrogatories and document request.
On December 30, 2003, the appellees sent a letter to Roman stating that the
discovery responses and initial disclosures were past due and also requested that Roman
complete a form authorizing access to his medical records. Roman did not respond to this
letter or provide the information requested.
On January 15, 2004, the appellees filed a motion for an extension to complete
discovery, which the District Court granted through February 13, 2004, and a motion to
compel Roman’s discovery responses, to which the court set a motions deadline for
February 23, 2004. The District Court stated that it “carefully chose these dates to ensure
that it would have an adequate period of time in which to consider and decide any
dispositive motions in advance of the . . . pretrial conference.” Record at 15a. Roman

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1The District Court noted in its memorandum dismissing the complaint that “the Court
explicitly reiterated the discovery and motions deadlines and advised Plaintiff’s counsel
to ‘comply strictly with all relevant deadlines.’”
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failed to respond to the motion to compel. On February 3, 2004, the District Court
granted the appellees’ motion as uncontested and ordered Roman to serve all his
discovery responses before the close of discovery.1 Roman again failed to meet the
deadline. On March 8, 2004, however, Roman filed his Rule 26(a) initial disclosures, an
answer to the document request, answers to the interrogatories, a motion for extension of
time to file opposition to the appellees’ motion for summary judgment, an answer to the
appellees’ motion to dismiss, and Mr. Anthony’s entry of appearance.
On M arch 22, 2004, the District Court dismissed with prejudice Roman’s
complaint pursuant to Fed. R. Civ. P. 37.
II.
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a decision to dismiss a
complaint with prejudice under Fed. R. Civ. P. 37 for abuse of discretion. Nat’l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976); Poulis v. State Farm Fire
and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).

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III.
A. Applicable Law
Under Fed. R. Civ. P. 37, a district court may impose sanctions on a party that fails
to make the required Fed. R. Civ. P. 26(a) initial disclosures or to comply with an order
compelling discovery, including responding to interrogatories or document request.
Where “a party . . . fails to obey an order to provide or permit discovery,” a district court
may make orders “striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party[.]”
We have noted that “the sanction of dismissal is disfavored absent the most
egregious circumstances.” U.S. v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d
Cir. 2003) (citing Poulis, 747 F.2d at 867-68). In determining whether the severe
sanction of dismissal is justified, a district court must weigh 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, 747 F.2d at 868 (emphasis in original). We review the way in which the District
Court balanced these factors for abuse of discretion. See, e.g., Curtis T. Bedwell & Sons,
Inc. v. Int’l Fidelity Ins. Co., 843 F.2d 683, 692 (3d Cir. 1988). A district court need not
find every factor satisfied to warrant dismissal. Hicks v. Feeney, 850 F.2d 152, 156 (3d

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2Roman’s brief represents that “the failure to respond to discovery was entirely the
fault of the Plaintiff’s attorney[.]
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Cir.1988). When a district court has doubt, the decision whether to dismiss “should be
resolved in favor of reaching a decision on the merits” and “alternative sanctions should
be used.” Scarborough v. Eubanks, 747 F.2d 871, 878 (3d Cir. 1984).
B. Application of the Poulis Factors
1. Extent of Roman’s Personal Responsibility
The District Court found that this factor weighed only “slightly” in favor of
dismissal because Mr. Anthony bore much of the responsibility.2 The District Court
noted that Roman did have some personal responsibility, citing the deposition on
December 3, 2003, where defense counsel addressed Roman himself regarding his
obligation to answer the interrogatories and document request. In addition, there is merit
in appellees’ argument that Roman was solely responsible for his conduct at the times in
which he proceeded pro se (at least until November 2003), in which he failed to meet
several discovery deadlines. The District Court did not abuse its discretion in
consideration of this factor.
2. Prejudice to Appellees Caused by Failure to Respond to Discovery
The District Court found the prejudice caused to appellees by Roman’s failure to
respond to discovery “weigh[ed] heavily in favor of dismissal.” Record at 21a.
Specifically, the court concluded that appellees’ ability to prepare was effectively

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3Two examples demonstrate why the deposition, by itself, hindered appellees’ efforts
to build a legal and strategic defense. First, at the deposition on December 3, 2003,
defense counsel asked Roman to identify the evidentiary basis for his claim that the
appellees have a policy of racial inequality. Roman responded that he could establish his
case simply by producing (unspecified) articles from the local newspaper and suggested
he could make his case if he inquired about police department regulations. Record at
179a. Roman never did so. If Roman had presented such evidence at trial, the appellees
would not have had advance opportunity to examine it and develop counter evidence.
(continued...)
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impeded by Roman’s failure to respond to the interrogatories, document request, as well
as failure to produce the Rule 26(a) initial disclosures.
Roman makes two arguments that the District Court abused its discretion. First,
Roman argues that appellees suffered no prejudice because his deposition provided the
information the appellees’ sought in their interrogatories and document request. We find
this argument unavailing. See DiPietro v. Jefferson Bank, 144 F.R.D 279, 282 (E.D. Pa.
1992) (“The general rule is that answers to interrogatories should be complete in and of
themselves, and should not refer to pleadings, depositions, or other documents.”) (citing
4 James Wm. Moore et al., Moore’s Federal Practice (2d ed. 1989) ¶ 33.25[1]). To
satisfy this Poulis factor, “prejudice” does not mean “irremediable harm,” but instead,
the burden imposed by impeding a party’s ability to prepare effectively a full and
complete trial strategy. Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003).
Even if the deposition could stand in the shoes of properly answered interrogatories,
document request, and initial disclosures, Roman’s answers at his deposition, especially
regarding the evidence he would proffer at trial, were incomplete and unsatisfactory.3

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3(...continued)
Record at 19a. As a second example, Roman noted in his filing of March 8, 2003, that he
intended to present a report from Dr. David Daley and that he could offer Dr. Daley as a
“possible expert witness.” But, as the District Court noted, Roman did not comply with
the Federal Rules governing expert witnesses.
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Second, Roman argues that “it is obvious from the docket entries that the trial
would never have been able to be held on the scheduled date,” and the District Court
“would have had no choice but to continue the trial date, and that continuance would have
eliminated any possibility of prejudice to the Defendants.” Appellant’s Br. at 16. To the
contrary, the District Court noted that it “rejected Defendants’ proposed deadlines so as to
preserve the existing dates for the pretrial conference . . . and trial pool . . . which could
not be rescheduled in light of the Court’s busy docket . . . . The Court carefully chose
these dates to ensure that it would have an adequate period of time in which to consider
and decide any dispositive motions in advance of the March 24, 2004 pretrial
conference.” Record at 15a. Thus, the delay in responding to the interrogatories and
document request was prejudicial because it would have left appellees little time to
prepare.
3. History of Dilatoriness
The District Court found that Roman’s “history of dilatoriness is long, bedeviling
and inconsistent with the efficient administration of justice . . .weigh[ing] heavily in favor
of dismissal.” Record at 20a-21a. This case’s procedural history bears out the District
Court’s conclusion: Roman took nearly twenty months from bringing his complaint to

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filing his Rule 26(a) initial disclosures; he requested an extension of time to respond to
appellees’ motion to dismiss, but did not meet the deadline; after the court vacated its
order of dismissal, Roman conducted no discovery during the four-month discovery
period; Roman subsequently failed to comply with the court’s order requiring a status
update; he failed twice to attend a scheduled deposition; he failed to respond to
appellees’ written discovery, despite repeated requests; he did not respond to appellees’
motion to compel and did not provide answers during the court-ordered discovery period;
and, he did not file a timely response to the appellees’ motion for summary judgment.
Even when he finally submitted the requested discovery and motions, well after the
respective deadlines, he requested more time for discovery, stating he would need more
time to gather evidence. In light of this extensive history of dilatoriness, we find no abuse
of discretion in the weighing of this factor.
4. Whether the Conduct of the Party or the Attorney was Willful
or in Bad Faith
The District Court found this factor favored dismissal. Record at 23a. In
particular, the court suggested that Roman and Mr. Anthony’s failure to “offer any
substantiated, adequate excuses for their shortcomings” for the “sheer quantity” of
dilatory conduct was particularly “telling” of bad faith.
Absence of reasonable excuses may suggest that the conduct was willful or in bad
faith. See Ware v. Rodale Press, Inc., 322 F.3d 218, 224 (3d Cir. 2003). In the face of
court-imposed deadlines, repeated failure to observe court imposed deadlines and total

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4The District Court considered several alternative sanctions. The court found
inadequate an order precluding Roman from presenting certain evidence – he had
produced little evidence to preclude and such an order would not have helped appellees’
need for an outline of Roman’s case. The court found lacking an order forbidding Roman
from conducting further discovery – it would have equated to dismissal given Roman’s
failure to conduct discovery of his own. The court rejected assessing attorneys’ fees and
costs against Roman or Mr. Anthony because this would not have redressed appellees’
need for an outline of Roman’s evidentiary case. The court decided not to grant Roman’s
motion for an extension of time and continue the trial date – there had already been too
much delay. Finally, the court rejected the possibility of deciding the case on a motion
for summary judgment because the record was so incomplete.
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failure to pursue a claim beyond the pleadings may constitute willful conduct. See Wade
v. Wooten, 1993 WL 298715, at *4 (E.D. Pa. July 30, 1993) (evaluating the fourth Poulis
factor and holding that “[plaintiff] must be held accountable for his willful failure to
pursue his claim beyond the mere pleadings despite being given ample opportunity to
comply with this Court’s Orders and to respond to defendants’ motions”).
5. Effectiveness of Sanctions other than Dismissal
The District Court found this factor favored dismissal because no satisfactory
alternative sanctions were available. The court carefully considered each alternative
sanction and gave adequate reasons why it was not sufficient.4
6. The Meritoriousness of the Claim
The District Court found this factor favored dismissal. With respect to the Equal
Protection claim, the court found such a claim could be actionable if one ignored the lack
of evidentiary support in this particular case. With respect to the interstate travel claim,
the court found it lacked merit because “no court has recognized government inaction as

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the basis for such a claim.” Record at 25a (emphasis in original). The court observed
that “the constitutional right to travel flows from the Due Process Clause” and “failure to
protect an individual against private violence simply does not constitute a violation of the
Due Process Clause.” Record at 25a (quoting DeShaney v. Winnebago County Dep’t of
Soc. Servs., 489 U.S. 189, 197 (1989)).
Roman argues that the District Court’s finding that the interstate travel claim
lacked merit was inconsistent with its earlier ruling that the same claim survived a Rule
12(b)(6) motion to dismiss. Under Rule 12(b)(6), a court should only dismiss if no relief
can be granted under any set of facts which could be proved. Often, a trial judge rejects a
defendant’s motion to dismiss for failure to state a claim to allow the plaintiff time to
develop evidence through discovery. Almost a year passed between the District Court’s
rejection of the Rule 12(b)(6) motion and its dismissal of the claim as sanctions under
Rule 37. In that time, the District Court observed the results of Roman’s deposition as
well as his failure to engage in his own discovery. If there were a conceivable (but
extraordinary) set of facts under which relief could be granted, the District Court had seen
enough to find that they were not present in this case. Thus, we find no abuse of
discretion.
We find no abuse of discretion in the District Court’s ultimate conclusion that the
weight of all the Poulis factors justify the sanction imposed. For the reasons stated, we
believe the court thoroughly examined Roman’s arguments, carefully weighed the Poulis

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factors, and reasonably concluded that the dismissal was warranted. Therefore, we will
affirm.

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