Filed: Nov. 29, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 11-29-2007 Reshard v. Lankenau Hospital Precedential or Non-Precedential: Non-Precedential Docket No. 06-3170 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Reshard v. Lankenau Hospital" (2007). 2007 Decisions. Paper 175. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/175 This decision is brought to you for free and open access by th
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 11-29-2007 Reshard v. Lankenau Hospital Precedential or Non-Precedential: Non-Precedential Docket No. 06-3170 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Reshard v. Lankenau Hospital" (2007). 2007 Decisions. Paper 175. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/175 This decision is brought to you for free and open access by the..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-29-2007
Reshard v. Lankenau Hospital
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3170
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Reshard v. Lankenau Hospital" (2007). 2007 Decisions. Paper 175.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/175
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 2007 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No: 06-3170
CONNIE C. RESHARD,
Appellant
v.
THE LANKENAU HOSPITAL, d/b/a, a/k/a MAIN LINE HEALTH;
DR. MICHAEL J. GLASSNER; DR. JOHN SCHILLING; DR. MARK
E. SCOTT; DR. KIMBERLY M. LENHARDT; DR. THOMAS J. MEYER;
DR. GEOFFREY P. TREMBLAY; UNKNOWN RESIDENT; MAIN LINE HOSPITAL
INCORPORATED, a/k/a The Lankenau Hospital
_______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cv-01787)
District Judge: Hon. R. Barclay Surrick
_______________
Submitted Under Third Circuit LAR 34.1(a)
November 8, 2007
Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.
(Filed: November 29, 2007)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
In this medical malpractice case, Connie C. Reshard appeals the final judgment of
the United States District Court for the Eastern District of Pennsylvania, dismissing her
complaint for failure to prosecute. For the reasons stated below, we affirm.
I.
Reshard, a member of the Pennsylvania Bar, brought this medical malpractice suit
pro se against Lankenau Hospital and six doctors in 2002. Although no significant
discovery had taken place, over 140 documents and motions had been filed in the case by
the time it was reassigned to the Honorable R. Barclay Surrick from another District
Judge. Judge Surrick denied all outstanding motions and ordered the discovery process to
be started anew.
On November 26, 2003, the District Court ordered Lankenau Hospital to allow
Reshard to inspect all of its records pertaining to her treatment and ordered her to produce
before February 9, 2003 a statement from a qualified licensed professional indicating that
there was a reasonable probability that the defendants’ conduct in treating her fell outside
acceptable professional standards. December 1, 2003, Reshard filed four new motions,
which requested personal information from the District Judge and sought to vacate the
Court’s previous scheduling and discovery orders. The District Court denied all four
motions in an order dated December 31, 2003. In early 2004, Reshard attempted to
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appeal that order and certain other orders of the District Court, but her appeal was
dismissed by this Court on November 16, 2004 for lack of jurisdiction.1
Although Reshard had an appointment to inspect the Lankenau Hospital records,
she did not keep that appointment and did not reschedule. Nor did she produce the
required statement from a qualified licensed professional. On February 20, 2004, the
District Court held a scheduling conference. Reshard did not appear and did not contact
the Court to explain her absence.
Over two years later, on April 28, 2006, the District Court dismissed the case sua
sponte for failure to prosecute. At the time the District Court dismissed the case, Reshard
had not contacted either the Court or the defendants since the missed February 20, 2004
scheduling conference.
The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291.
II.
We review a district court’s dismissal for failure to prosecute for abuse of
discretion. Spain v. Gallegos, 26 F.3d 439, 454 n.17 (3d Cir. 1994). On appeal, Reshard
argues that the dismissal was improper for three reasons. First, she argues that the
dismissal was improper because the District Court acted sua sponte and did not notify her
that it planned to dismiss. However, district courts have inherent power to dismiss sua
1
This Court also dismissed on November 16, 2004 an appeal filed by Reshard in March
2003.
3
sponte for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962).
Moreover, “a District Court may dismiss a complaint for failure to prosecute even without
affording notice of its intention to do so or providing an adversary hearing before acting.”
Id. at 633.
Next, Reshard argues that the dismissal for failure to prosecute was improper
because the District Court misapplied the applicable legal standard. We disagree. When
considering whether to dismiss a case for failure to prosecute, courts generally should
consider the factors set forth in Poulis v. State Farm Fire and Casualty Co., 747 F.2d
863, 868 (3d Cir. 1984):
(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.
In this case, the District Court considered the Poulis factors and concluded that all of
them, except for the meritoriousness of the claim, favored dismissal. With respect to the
meritoriousness of Reshard’s claim, the District Court found that Reshard’s own conduct
in delaying the discovery process made that factor impossible to assess. In light of these
findings, and under the circumstances of this case, we cannot say that the District Court
abused its discretion in dismissing the case.
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Third, and finally, Reshard argues that the District Court was without jurisdiction
to enter the order of dismissal (or any other order) because Reshard had appeals pending
before this Court. Once again, we disagree. Reshard’s appeals were dismissed by this
Court for lack of jurisdiction because the orders she was attempting to appeal from were
not final within the meaning of 28 U.S.C. § 1291 and were not immediately appealable as
collateral orders. As such, they did not deprive the District Court of jurisdiction:
[T]he jurisdiction of the lower court to proceed in a cause is
not lost by the taking of an appeal from an order or judgment
which is not appealable. ... Indeed, a contrary conclusion
would enable a litigant temporarily to deprive a district court
of jurisdiction at any non-critical or critical juncture including
trial itself, thus bringing proceedings in the district court to a
standstill while a non-appealable ruling wends its way
through the appellate process.
Venen v. Sweet, 758 F.2d 117, 121 (3d Cir. 1985) (internal quotation and citation
omitted). Accordingly, Reshard’s improper appeals did not preclude the District Court
from proceeding with this case and, ultimately, dismissing it for failure to prosecute. 2
2
Because we hold that the District Court’s dismissal was proper, we decline to address
Reshard’s arguments regarding certain allegedly erroneous orders entered by the District
Court prior to dismissing the case. Indeed, to the extent that Reshard argues that her
actions (or lack thereof) in this case would be excused by an erroneous order, she is
incorrect. See Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974) (“If a litigant could
refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a
dismissal for failure to prosecute, and then obtain review of the judge's interlocutory
decision, the policy against piecemeal litigation and review would be severely
weakened.”); Spain v. Gallegos,
26 F.3d 439, 454 (3d Cir. 1994) (“A party disappointed
with a court’s ruling may not refuse to proceed and then expect to obtain relief on appeal
from an order of dismissal or default.”).
We also reject Reshard’s assertion that Judge Surrick appears to be biased against
her. The only basis Reshard offers in support of her allegation of bias is Judge Surrick’s
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III.
We have considered the remainder of Reshard’s arguments and find them
unpersuasive. For the foregoing reasons, we affirm the judgment of the District Court.
legal rulings, which are insufficient to establish that Judge Surrick was biased. See Liteky
v. United States, 510 U.S. 540, 555-56 (1994).
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