Robert S. Jackson v. Us Bankruptcy Court

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BLD-003
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3186
___________
ROBERT S. JACKSON,
Appellant
v.
US BANKRUPTCY COURT; JUDGE JUDITH K FITZGERALD; RONDA J.
WINNECOUR, Chapter 13 Trustee, by and through her assistants, agents, and
representatives; RUSSELL SANDERS; MAY, LONG & SANDERS, ET AL.; JOSEPH
A. GOLDBECK; GOLDBECK, MCCAFFERTY & MCKEEVER; ANDREW STONE;
STONE & STONE, ET AL.; JOHN BUSS; COUNTY OF ALLEGHENY; COURT OF
COMMON PLEAS OF ALLEGHENY COUNTY; JUDGE JUDITH A. FRIEDMAN;
MICHAEL LAMB; WILLIAM MULLEN; COUNTRYWIDE HOME LOANS INC., by
and through its corporate officers, agents and representatives
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2:07-cv-01288
District Judge: Honorable Donetta W. Ambrose
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit L.A.R. 27.4 and I.O.P. 10.6
October 1, 2009
Before: McKEE, RENDELL and CHAGARES, Circuit Judges
(Opinion filed:October 30, 2009)

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_________
OPINION
_________
PER CURIAM
Appellant Robert S. Jackson appeals a March 9, 2009, order dismissing his
complaint for failure to prosecute pursuant to Fed. R. Civ. P. 41(b) and a June 24, 2009,
order denying his motion to reopen the proceedings. We conclude that the appeal does
not present a substantial question and will summarily affirm the District Court’s orders.
See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
Because we write solely for the benefit of the parties, we will limit our discussion
to those facts relevant to our decision.
Jackson claims to be the victim of an allegedly “fraudulent mortgage scheme” by
Countrywide Home Loans, Inc. (“Countrywide”). Apparently, Jackson, Countrywide,
and others have been engaged in state and federal litigation for years, including
bankruptcy proceedings in the United States Bankruptcy Court for the Western District of
Pennsylvania. See In re: Robert S. Jackson, Bankruptcy No. 04-35953 (Bankr. W.D. Pa.).
Among other things, in those proceedings, Jackson sought to have the Bankruptcy Court
vacate a state court property foreclosure that Countrywide had obtained against him. The
Bankruptcy Court denied the claim for lack of jurisdiction, directed Jackson to pursue
relief in state court, and ultimately dismissed the matter on September 25, 2006. Jackson

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did not file an appeal from the Bankruptcy Court’s September 25, 2006, dismissal.
Nearly one year later, Jackson initiated this pro se action in United States District
Court for the Western District of Pennsylvania by filing a pleading entitled “Motion for
Relief from Judgment.” In it, Jackson claims that the Bankruptcy Court proceedings were
fraudulent and inconsistent with due process and that the Bankruptcy Court’s judgment
should be set aside as “void” under Fed. R. Civ. P. 60(b).
The District Court converted Jackson’s Rule 60(b) motion into a complaint. Three
groups of defendants separately filed motions to dismiss. Despite two extensions,
Jackson failed to respond to any of the motions. On October 10, 2008, the District Court
granted the three motions to dismiss and scheduled a status conference. Jackson failed to
appear at the conference and did not contact the District Court to explain his absence.
Accordingly, on March 9, 2009, the District Court issued a sua sponte order pursuant to
Fed. R. Civ. P. 41(b). The District Court considered Jackson’s case under Poulis v. State
Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), and concluded that the case
should be dismissed for failure to prosecute. The District Court’s order expressly
permitted Jackson thirty days in which to seek to reopen the matter. Jackson did not do so
within the allotted time.
More than three months after the District Court’s order, Jackson moved to reopen
his case, claiming that he had been unable to timely file a motion to reopen due to the
property foreclosure and other personal circumstances. He also filed a notice reflecting

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Jackson filed his notice of appeal 137 days after the District Court entered the1
dismissal order pursuant to Rule 41(b). The appeal therefore initially appears to be
untimely as to that order. See Fed. R. App. P. 4(a)(1). However, the District Court’s
dismissal was not “set out in a separate document” as required by Fed. R. Civ. P. 58(a).
See In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir. 2006). As a result, for
purposes of filing an appeal, the judgment was not formally entered until 150 days after
March 9, 2009. See Fed. R. Civ. P. 58(c)(2)(B); LeBoon v. Lancaster Jewish Community
Center Ass’n, 503 F.3d 217, 224-25 (3d Cir. 2007). Accordingly, Jackson timely
appealed that order. The fact that Jackson appealed before the formal entry of judgment
does not prevent us from entertaining the appeal. See LeBoon, 503 F.3d at 224, n.5; Fed.
R. App. P. 4(a)(2), 4(a)(7)(B).
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that his mailing address had changed. The District Court denied the motion to reopen as
untimely, noting that it was Jackson’s first attempt to communicate with the District Court
in more than one year.
Jackson then filed a pro se notice of appeal.
II.
Jackson seeks review of the District Court’s June 24, 2009, order denying his
motion to reopen, and the District Court’s March 9, 2009, order dismissing his case for
failure to prosecute pursuant to Fed. R. Civ. P. 41(b). We have jurisdiction pursuant to1
28 U.S.C. § 1291. We review the District Court’s decisions for abuse of discretion. See
United States v. Coward, 296 F.3d 176, 180 (3d Cir. 2002) (motion to reopen); Emerson
v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (dismissal for failure to prosecute).
We may summarily affirm if this appeal presents no substantial question. See 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
To determine whether the District Court properly exercised its discretion when it

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dismissed Jackson’s complaint, we must consider the manner in which the District Court
balanced the following six considerations: (1) Jackson’s personal responsibility;
(2) prejudice to his adversaries; (3) any history of dilatoriness; (4) whether the Jackson’s
conduct was in bad faith; (5) the effectiveness of alternative sanctions; and (6) the merit
of his claim. See Poulis, 747 F.2d at 868. We must determine both whether the District
Court properly balanced these factors and whether the record supports the District Court’s
findings. See Livera v. First Nat. State Bank of New Jersey, 879 F.2d 1186, 1194 (3d Cir.
1989).
Here, the District Court concluded that the Poulis factors weigh in favor of
dismissal of the complaint. Specifically, the District Court determined that: (1) as a pro
se plaintiff, Jackson alone was personally responsible for his failure to prosecute the case;
(2) Jackson caused prejudice to his adversaries, specifically by causing the defendants to
appear a status conference that he failed to attend, and generally by causing them to
defend against a claim “brought by an unresponsive, unreachable party”; (3) Jackson had
a history of dilatoriness, specifically shown by his failure to respond to the three motions
to dismiss after being granted three extensions of time to permit him to do so; (4) the
District Court was unable to conclude that Jackson was acting in bad faith; and (5) no
other sanction would be effective, because financial sanctions would be futile (Jackson

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The decision that monetary sanctions are not appropriate falls within the District2
Court’s discretion and is entitled to this Court’s deference. See Mindek v. Rigatti, 964
F.2d 1369, 1375 (3d Cir. 1992).
We note that, under Poulis, a District Court assesses the merits of a claim under the3
same standard as a Rule 12(b)(6) motion to dismiss. See Briscoe, 538 F.3d at 263. Here,
the District Court had already granted the three groups of defendants’ unopposed motions
to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) and, to that extent at least, concluded
that Jackson’s claims lacked merit. Moreover, we express serious doubt over the merits
of Jackson’s claim, which appears to be little more than an untimely effort to seek
appellate review of a Bankruptcy Court judgment. See Bankr. R. 8002(a) (ten day time
for filing a notice of appeal from entry of a Bankruptcy Court judgment); In re Universal
Minerals, Inc., 755 F.2d 309, 311 (3d Cir. 1985) (the time for appealing a bankruptcy
judgment is strictly construed and jurisdictional). Finally, even if we were to assume for
the purpose of this analysis that the final Poulis factor weighs in Jackson’s favor, the
balance of the factors - four of six - would still weigh in favor of dismissal.
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was proceeding in forma pauperis) and because Jackson had been unreachable since June2
of the previous year.
While we have recognized that dismissal is an extreme sanction reserved only for
appropriate cases, see Poulis, 747 F.2d at 867-68, in this case, the District Court carefully
weighed five of the six the Poulis factors, and the record supports each of its conclusions.
We agree that four out of the first five Poulis factors support dismissal, and because the
District Court found that the issue of bad faith was a neutral factor and does not advance
the analysis, the balance of the Poulis factors supports dismissal.
In this case, we are given brief pause by the fact that the dismissal order did not
expressly address the final Poulis factor: the merits of Jackson’s claim. We have3
generally indicated that each of the Poulis factors should be considered. See Ware v.
Rodale Press, Inc., 322 F.3d 218, 221-22 (3d Cir. 2003). However, we have also

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The three motions to dismiss were filed in May 2008. The District Court sua sponte4
ordered three extensions of the time in which to respond, and ultimately ruled upon the
motions more than six months after they were filed, in October 2008. During that period,
Jackson made two docket entries, filing process receipts reflecting the same Monroeville,
Pennsylvania address that Jackson used when he initiated the action in September 2007.
All three motions to dismiss show that service was made upon Jackson at the Monroeville
address. Accordingly, to the extent Jackson attempts to imply that he did not receive
notice of the docket activity in his case due to his home foreclosure, such a contention
lacks record support. See Fed. R. Civ. P. 5(b)(2)(C) (service is complete upon mailing to
person’s last known address). Jackson never responded to the motions to dismiss and, to
date, has never explained his failure to do so.
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recognized that Poulis does not set forth a “magic formula,” see Briscoe v. Klaus, 538
F.3d 252, 263 (3d Cir. 2008), and that, under sufficiently extreme circumstances, it
becomes unnecessary to expressly consider the Poulis factors at all. See Spain v.
Gallegos, 26 F.3d 439, 455 (3d Cir. 1994). Such circumstances arise in cases where a
litigant wilfully refuses to prosecute his case or effectively makes it impossible to
proceed, leaving the District Court with little recourse other than dismissal. See Spain, 26
F.3d at 455; Guyer v. Beard, 907 F.2d 1424, 1429-30 (3d Cir. 1990).
Jackson’s case presents such egregious circumstances. After initiating this action
in the District Court, Jackson effectively abandoned the action, as demonstrated by:
(1) his failure to respond to three pending motions to dismiss, despite the District Court’s
sua sponte grant of three extensions of time in which to do so ; (2) his failure to attend a4
scheduled status conference, without contacting the District Court or the defendants to
seek a continuance or to excuse his absence; (3) his failure to initiate any contact
whatsoever with the District Court for over a year, despite substantial docket activity in

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his case; and (4) his failure to file a motion to reopen the proceedings within the thirty
days directed in the District Court’s dismissal order.
Jackson’s disappearance effectively made it impossible for the District Court to
proceed with his case. See Spain, 26 F.3d at 455. Thus, dismissal was appropriate
without strict adherence to Poulis. Under these circumstances, the District Court’s
omission of a discussion of one of the six Poulis factors does not give rise to an abuse of
discretion.
We also conclude that the District Court did not abuse its discretion in denying
Jackson’s motion to reopen the proceedings. The District Court allotted Jackson a
reasonable amount of time in which to file such a motion, and he failed to do so. Jackson
attempts to attribute his delay to his personal circumstances, including his home
foreclosure. However, Jackson’s explanation is not convincing, particularly in light of his
history of dilatoriness in this case. The District Court did not abuse its discretion in
declining to consider Jackson’s untimely motion.
III.
Jackson initiated this action and then effectively disappeared, making it impossible
to proceed. Jackson cannot now complain of the District Court’s reasonable response to
his actions. Based upon our close review of the record, we conclude that the District
Court did not abuse its discretion in dismissing this case for failure to prosecute pursuant
to Fed. R. Civ. P. 41(b) or in denying the untimely motion to reopen the proceedings.

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Because this appeal does not present a substantial question, we will affirm the District
Court’s orders.

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