David Flood, Adm'r Exec. Dir. the Nittany Liger Collegiate Athletes' Corps. & Nat'l Scouting Aegis LLC v. Nat'l Collegiate Athletic Ass'n, Civil No. 1:15-CV-890

• Decision Date: 08 September 2015
• Docket Number: Civil No. 1:15-CV-890
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: DAVID FLOOD, ADMINISTRATOR EXECUTIVE DIRECTOR THE NITTANY LIGER COLLEGIATE ATHLETES' CORPS. & NATIONAL SCOUTING AEGIS LLC Plaintiff v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Defendants

DAVID FLOOD, ADMINISTRATOR EXECUTIVE DIRECTOR THE NITTANY LIGER COLLEGIATEATHLETES' CORPS. & NATIONAL SCOUTING AEGIS LLC Plaintiff v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Defendants

Civil No. 1:15-CV-890

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

September 8, 2015

(Judge Caldwell)

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

This pro se complaint comes before us for consideration of a motion to dismiss filed by the defendants, Jim Delany and the Big Ten Conference. (Doc.10.) The plaintiff has not responded to this motion, and the time for filing a response has passed. Therefore, we will treat this motion as ripe for resolution, and for the reasons set forth below, we recommend that the motion to dismiss be granted.

The pleadings reveal that Mr. Flood is a deeply committed fan of Penn State Football, whose commitment to the Nittany Lions has inspired him to found theNittany Liger, a business entity which specializes in scouting and recruiting exceptionally talented blue chip high school and junior college student-athletes to be considered for scholarships at Penn State. (Doc. 1.) Flood's commitment to Penn State football has also inspired him to bring this federal lawsuit against the NCAA, its general counsel and its President, the Big Ten Conference and its President. (Id.)

The gravamen of Flood's complaint relates to a July 2012 consent decree entered into by the University and the NCAA in the wake of the Jerry Sandusky child sexual abuse scandal, a consent decree which imposed a series of NCAA sanctions upon the Penn State football program. (Id.) Asserting standing on behalf of the Penn State athletes affected by this consent decree, Flood purports to bring this lawsuit in federal court alleging some 11 causes of action including criminal uttering of false documents, civil rights violations, Title IX discrimination, negligent and intentional infliction of emotional distress, fraud, "breach of duty", and "negotiating in bad faith." (Id.)

Because Flood paid the filing fee prescribed by law, this pro se complaint was not subject to threshold legal screening but was served upon the defendants. However, as a pro se litigant the plaintiff was advised by this Court at this outset of this lawsuit of his responsibilities in this litigation. Thus, on May 7, 2015, the district court entered its Standing Practice Order in this case, an order which informed the plaintiffof his responsibility to reply to defense motions, and warned him in clear and precise terms of the consequences which would flow from a failure to comply with briefing schedules on motions, stating:

If the party opposing the motion does not file his or her brief and any evidentiary material within the 14-day time frame, Local Rule 7.6 provides that he or she shall be deemed not to oppose the moving party's motion. The motion may, therefore, be granted if: (1) the court finds it meritorious; or (2) the opposing party fails to comply with Local Rule 7.6 despite being ordered to do so by the court.

(Doc. 2, p. 2.)

The Defendant Big Ten Conference and Jim Delany have now filed a motion to dismiss this complaint, arguing both that Flood lacks standing to bring these third party claims, and that many of Flood's individual claims fail on their merits. (Doc 10.) Flood has not responded in any fashion to this motion, and the time for filing a response has now passed. Therefore, the motion will be deemed ripe for resolution.

II. Discussion

A. Under The Rules of This Court This Motion to Dismiss Should Be Deemed Unopposed and Granted

At the outset, under the Local Rules of this Court the plaintiff should be deemed to concur in this motion since the plaintiff has failed to timely oppose the motion, or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the rules of thiscourt warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions and provides that

Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.

Local Rule 7.6 (emphasis added).

It is now well-settled that "Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency 'if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). In this case the plaintiff has not complied with the Local Rules, or this Court's orders, by filing a timely response to this motion. Therefore, these procedural defaults by the plaintiff compel the Court to consider:

[A] basic truth: we must remain mindful of the fact that "the Federal Rules are meant to be applied in such a way as to promote justice. SeeFed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion ...." McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 197 (3d Cir.1998).

Lease v. Fishel, 712 F. Supp. 2d 359, 371 (M.D.Pa. 2010).

With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are repeatedly breached, "would actually violate the dual mandate which guides this Court and motivates our system of justice: 'that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion'." Id. Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.

These basic tenets of fairness apply here. In this case, the plaintiff has failed to comply with Local Rule 7.6 by filing a timely response to this motion to dismiss. These failures now compel us to apply the sanction called for under Rule 7.6 and deem the plaintiff to not oppose this dispositive motion.

B. Dismissal of this Case Is Also Warranted Under Rule 41

Beyond the requirements imposed by the Local Rules of this Court, Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed. R. Civ. P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the court, and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002)(citations omitted). That discretion, however, while broad is governed by certain factors, commonly referred to as Poulis factors. As the United States Court of Appeals for the Third Circuit has noted:

To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following 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 v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).

Emerson, 296 F.3d at 190.

In exercising this discretion "there is no 'magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute." Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011)(quoting Briscoe v. Klem, 538 F.3d 252 (3d Cir. 2008)). Therefore, "[i]n balancing the Poulis factors, [courts] do not [employ] a . . . 'mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992)." Briscoe v. Klaus, 538 F.3d at 263. Consistent with this view, it is well-settled that " 'no single Poulis factor is dispositive,' Ware, 322 F.3d at 222, [and it is] clear that 'not all of the Poulis factors need be satisfied in order to dismiss a complaint.' Mindek, 964 F.2d at 1373." Briscoe v. Klaus, 538 F.3d at 263. Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the court of appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson v. Thiel College, supra; Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F. App'x...