AUSTIN v. GIANT FOOD STORES ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ROBERT AUSTIN, : Plaintiff, : : v. : CIVIL ACTION NO. 20-CV-2050 : GIANT FOOD STORES, et al., : Defendants. : ORDER AND NOW, this 18th day of December, 2020, upon consideration of Plaintiff Robert Austin’s Third Amended Complaint (ECF No. 18), it is ORDERED that: 1. The Third Amended Complaint is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for the reasons in the Court’s Memorandum. 2. Mr. Austin may file a fourth amended complaint within thirty (30) days of the date of this Order. Any fourth amended complaint must clearly identify the defendants in the caption of the fourth amended complaint and shall clearly state the facts supporting Austin’s claims against each defendant. The fourth amended complaint shall be a complete document that does not rely on the initial Complaint, Second Amended Complaint, Third Amended Complaint, or any other papers filed in this case to state a claim. When drafting his fourth amended complaint, Austin should be mindful of the Court’s reasons for dismissing the claims in his Third Amended Complaint as explained in the Court’s Memorandum. Upon the filing of a fourth amended complaint, the Clerk shall not make service until so ORDERED by the Court. 3. The Clerk of Court is DIRECTED to send Austin a blank copy of this Court’s current standard form to be used by a self-represented litigant filing an employment discrimination action bearing the above-captioned civil action number. Austin is encouraged to use this form to file his fourth amended complaint if he chooses to do so. This form is also available on the Court’s website, http://www.paed.uscourts.gov/documents/forms/frmcempf.pdf. 4. If Mr. Austin does not wish to amend and instead intends to stand on his Third Amended Complaint as originally pled, he may file a notice with the Court within thirty (30) days of the date of this Order stating that intent, at which time the Court will issue a final order dismissing the case. Any such notice should be titled “Notice to Stand on Third Amended Complaint,” and shall include the civil action number for this case. See Weber v. McGrogan, 939 F.3d 232 (3d Cir. 2019) (“If the plaintiff does not desire to amend, he may file an appropriate notice with the district court asserting his intent to stand on the complaint, at which time an order to dismiss the action would be appropriate.” (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n.1 (3d Cir. 1976))); In re Westinghouse Sec. Litig., 90 F.3d 696, 703–04 (3d Cir. 1996) (holding “that the district court did not abuse its discretion when it dismissed with prejudice the otherwise viable claims . . . following plaintiffs’ decision not to replead those claims” when the district court “expressly warned plaintiffs that failure to replead the remaining claims . . . would result in the dismissal of those claims”). 5. If Mr. Austin fails to file any response to this Order, the Court will conclude that Austin intends to stand on his Third Amended Complaint and will issue a final order dismissing this case.1 See Weber, 939 F.3d at 239-40 (explaining that a plaintiff’s intent to stand on his 1 The six-factor test announced in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984), is inapplicable to dismissal orders based on a plaintiff’s intention to stand on his complaint. See Weber, 939 F.3d at 241 & n.11 (treating the “stand on the complaint” doctrine as distinct from dismissals under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order, which require assessment of the Poulis factors); see also Elansari v. Altria, 799 F. App’x 107, 108 n.1 (3d Cir. 2020) (per curiam). Indeed, an analysis under Poulis is not required when a plaintiff willfully abandons the case or makes adjudication impossible, as would be the case when a plaintiff opts not to amend his complaint, leaving the case without an operative complaint may be inferred from inaction after issuance of an order directing him to take action to cure a defective complaint). BY THE COURT: /s/ Gerald Austin McHugh GERALD A. McHUGH, J. pleading. See Dickens v. Danberg, 700 F. App’x 116, 118 (3d Cir. 2017) (per curiam) (“Where a plaintiff’s conduct clearly indicates that he willfully intends to abandon the case, or where the plaintiff's behavior is so contumacious as to make adjudication of the case impossible, a balancing of the Poulis factors is not necessary.”); Baker v. Accounts Receivables Mgmt., Inc., 292 F.R.D. 171, 175 (D.N.J. 2013) (“[T]he Court need not engage in an analysis of the six Poulis factors in cases where a party willfully abandons her case or otherwise makes adjudication of the matter impossible.” (citing cases)).