Susan R. Shuey; John Shuey v. William G. Schwab

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 08-4727
SUSAN R. SHUEY; JOHN SHUEY,
Appellants
v.
WILLIAM G. SCHWAB; EAST PENN TOWNSHIP;
BRIAN P. HOROS, Officer; ALAN W. BEISHLINE
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-08-cv-01190)
District Judge: Hon. A. Richard Caputo
Submitted Under Third Circuit LAR 34.1(a)
October 26, 2009
Before: SLOVITER, FUENTES and HARDIMAN, Circuit Judges
(Filed: November 3, 2009)
OPINION

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SLOVITER, Circuit Judge.
Susan and John Shuey appeal from the District Court’s order dismissing their
action filed against William G. Schwab, East Penn Township Supervisor, and Brian P.
Horos and Alan W. Beishline, East Penn Township Police Officers (collectively, “East
Penn”) because their counsel failed to timely respond to East Penn’s motion to dismiss
under Fed. R. Civ. P. 12(b)(6). The District Court deemed counsel’s inaction to
constitute agreement with East Penn’s motion and, in accordance with the District Court’s
Local Rule 7.6, dismissed the Shueys’ complaint. The Court denied the Shueys’ motion
for reconsideration, finding their counsel’s proffered reasons for delay insufficient.
Because the District Court failed to make a determination that dismissal was
warranted based on the factors enunciated in Poulis v. State Farm Fire & Casualty Co.,
747 F.2d 863, 868 (3d Cir. 1984), we will vacate the District Court’s order and remand
for further proceedings.
I.
The Shueys filed a civil rights action in June 2008, alleging violations of the
United States Constitution, 42 U.S.C. §§ 1983, 1985, and 1988, the Pennsylvania
Constitution, and various state laws. The central thrust of the Shueys’ complaint is that
two East Penn Township police officers used excessive force and unlawfully arrested and
falsely imprisoned Mrs. Shuey, and that various Township officials are vicariously liable
for the officers’ actions.

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Local Rule 7.6 of the United States District Court for the1
Middle District of Pennsylvania provides as follows:
Any party opposing any motion shall file a
responsive brief, together with any opposing affidavits,
deposition transcripts or other documents, within fifteen
(15) days after service of the movant’s brief, . . . Any
respondent who fails to comply with this rule shall be
deemed not to oppose such motion.
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East Penn filed a motion to dismiss the Shueys’ complaint in July 2008. The
Shueys failed to respond within fifteen days from the date of service of East Penn’s
motion, as required by Middle District of Pennsylvania Local Rule 7.6. The District1
Court, by Order dated August 21, 2008, directed the Shueys to file a brief in opposition to
Defendants’ motion to dismiss or “otherwise communicate with the Court,” and stated
that if the Shueys failed to respond within fifteen days the Court “will consider the motion
to dismiss unopposed and grant dismissal without a merits analysis.” App. at 79. The
Court also stated that upon failure of Plaintiffs to oppose Defendants’ motions, it may
consider dismissing for failure to prosecute and failure to comply with a court order under
Fed. R. Civ. P. 41(b). After the Court’s deadline had expired and its warning went
unheeded, the District Court, by Order dated September 9, 2008, granted East Penn’s
motion to dismiss without addressing the merits of the complaint. Even though the
District Court noted that, typically, the adjudication of cases involving unopposed
motions warrants a merits analysis, it held that an analysis was unnecessary here, relying
on our statement in Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991), that a

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Counsel explained that the Court’s electronically filed2
order was errantly tagged as “spam” in counsel’s e-mail system and
therefore was never delivered. App. at 81. Counsel further
explained that the misdirected order would have been discovered
by counsel’s support staff had they not been “on vacation” or
otherwise “unavailable.” App. at 82.
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dismissal without a merits analysis based on a local rule is not always precluded,
especially after a court had issued an adequate warning and when a litigant is represented
by counsel.
Two days after the dismissal order was entered, the Shueys moved for
reconsideration. The Shueys urged the District Court to reconsider its dismissal because
the failure to respond to the Court’s Order was caused by a “technology error.” App. at2
86. Counsel accepted “full responsibility for the error” and stated he was taking steps to
prevent a recurrence. App. at 83.
The District Court denied the motion for reconsideration under Federal Rule of
Civil Procedure 59(e). It rejected the Shueys’ argument that denying their motion would
rise to a level of “manifest injustice.” App. at 7. Although counsel had proffered an
excuse for his failure to respond to the Court’s order, the District Court complained that
counsel never explained why Plaintiffs did not respond to the dismissal motion. The
Shueys timely appealed.
II.
The Shueys contend that the Court either erred or abused its discretion by granting

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We have jurisdiction over this appeal pursuant to 283
U.S.C. § 1291. Generally, this court will review a denial of a
motion for reconsideration under an abuse of discretion standard.
See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194,
1203 (3d Cir. 1995). To the extent, however, that the District
Court’s order is based on an interpretation of law, the issue is
reviewed de novo. See Max’s Seafood Café v. Quinteros, 176 F.3d
669, 673 (3d Cir. 1999).
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East Penn’s motion to dismiss without an analysis upon the merits. We agree.3
Dismissals with prejudice are drastic sanctions. Poulis, 747 F.2d at 867 (setting
forth factors district courts must consider before dismissing claims or refusing to lift
default judgments). Accordingly, “it is imperative that the District Court have a full
understanding of the surrounding facts and circumstances pertinent to the Poulis factors
before it undertakes its analysis.” Briscoe v. Klaus, 538 F.3d 252, 258 (3d Cir. 2008).
Here, the District Court erred in denying the Shueys’ motion for reconsideration by
relying on our dicta in Stackhouse. In that case we stated that “we are not unmindful of
the problems of the district court in dealing with a large volume of litigation,” 951 F.2d at
30, but we held that the action should not have been dismissed “without any analysis of
whether the complaint failed to state a claim upon which relief can be granted.” Id.
Poulis has been cited too often and is too deeply ingrained in the jurisprudence of this
court and the district courts of this circuit for a court to assume that a party’s failure to
respond to a motion to dismiss can be regarded as an abandonment of the claim. Poulis
governs the District Court’s decision to dismiss the Shueys’ claim, and it was error to

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dismiss without first considering the Poulis factors.
For the reasons set forth, we will vacate the order of the District Court and remand
for further proceedings.

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