IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WANDA P. CHOCALLO : CIVIL ACTION

:

v. :

:

INTERNAL REVENUE SERVICE :

DEPARTMENT OF THE TREASURY : NO. 04-3737

UNITED STATES OF AMERICA : CIVIL ACTION

:

v. :

:

WANDA P. CHOCALLO : NO. 06-539

MEMORANDUM AND ORDER

McLaughlin, J. November 26, 2008

 

These consolidated cases involve a tax dispute between

the United States and Wanda Chocallo, who appears before the

Court pro se. On January 3, 2008, this Court filed a Memorandum

and Order, in which the Court dismissed Chocallo’s claim for a

refund in Civil Action No. 04-3737, brought pursuant to 26 U.S.C.

§ 7422, as a sanction for her failure to appear at three pretrial

conferences. The Court also entered judgment in Civil Action No.

06-539 against Chocallo on the United States’s claim for recovery

of an erroneous refund under 26 U.S.C. § 7405. On February 29,

2008, Chocallo filed a notice of appeal to the United States

Court of Appeals for the Third Circuit. On November 6, 2008, the

Court of Appeals filed an opinion affirming dismissal of

Chocallo’s claim and vacating judgment on the United States’s

Case 2:04-cv-03737-MAM Document 67 Filed 12/01/08 Page 1 of 7
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claim. Chocallo v. United States, Nos. 08-1660, 08-1661, slip.

op. (3d Cir. Nov. 6, 2008). The Court of Appeals remanded the

cases to this Court for further decision on the United States’s

claim. In view of the factors set forth in the Court of

Appeals’s decision in Poulis v. State Farm Fire and Casualty Co.,

747 F.2d 863 (3d Cir. 1984), the Court will now direct the Clerk

of Court to enter default against Chocallo on the United States’s

claim.

Under Poulis, a court may enter default against a party

as a sanction after considering the following six 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) whether the party

has a history of dilatoriness; (4) whether the conduct of the

party 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. 747 F.2d at 867-68. It is not necessary that each

factor be satisfied for a sanction to be appropriate. See Ware

v. Rodale Press, Inc., 322 F.3d 218, 221 (3d Cir. 2003). Rather,

the factors are to be “weighed by the district courts in order to

assure that the ‘extreme’ sanction of dismissal or default is

reserved for the instances in which it is justly merited.” 

Poulis, 747 F.2d at 870.

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Upon consideration of the Poulis factors, the Court

finds that entry of default against Chocallo on the government’s

claim is an appropriate sanction for her refusal to appear at

three pretrial conferences even despite Court orders that

directed her to appear or else have judgment entered against her.

First, Chocallo, who is pro se, is personally

responsible for her failure to attend the pretrial conferences or

to otherwise comply with court scheduling orders. See Briscoe v.

Klaus, 538 F.3d 252, 258 (3d Cir. 2006). Her conduct cannot be

attributed to any counsel or to any other party. 

Second, there has been prejudice to Chocallo’s

adversary. The Court has attempted to hold three pretrial

conferences. Whereas Chocallo failed to appear, counsel for the

United States traveled to Philadelphia from Washington, D.C., for

each of these conferences. In preparation for the pretrial

conferences, the United States also spent time preparing two

pretrial memoranda, listing and gathering exhibits, and writing

proposed jury instructions for a trial that never occurred. 

Moreover, at the time of Chocallo’s non-appearances, these

parties had been in litigation with one another for over three

years. The prejudice from failing to proceed with a scheduled

trial after more than three years of litigation is, as the Court

of Appeals has stated, “apparent.” See Hoxworth v. Blinder,

Robinson & Co., 980 F.2d 912, 921 (3d Cir. 1992). 

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Third, Chocallo has a history of dilatoriness. She

failed to attend three pretrial conferences over the course of

two months. She further neglected to file a pretrial memorandum,

a list of exhibits, or proposed points for charge, as she was

instructed to do by the Court’s pretrial scheduling orders of

September 17, 2007, and September 18, 2007. Finally, Chocallo

stated that she would not participate in further proceedings in

this Court, thus delaying the resolution of this litigation

indefinitely. See Letter from Wanda P. Chocallo, Dec. 22, 2007

(Docket No. 60).

Fourth, as the Court of Appeals has agreed, Chocallo’s

conduct was willful and not the result of excusable neglect. See

Chocallo, Nos. 08-1660, 08-1661, slip. op. at 9-10 & n.8. 

Throughout this litigation, Chocallo consistently took the

position, which the Court of Appeals has now rejected, that the

proceedings in this Court are illegal in light of the Court of

Appeals’s decision of November 10, 2005. See id. at 6

(interpreting Chocallo v. IRS, 145 F. App’x 746, 748 (3d Cir.

2005)). This position was Chocallo’s professed reason for

actively refusing to participate in proceedings in this Court. 

She did not, and to date has not, provided any other reason to

excuse her failure to appear at any of the three pretrial

conferences.

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Fifth, the Court does not find any alternative

sanctions to be effective in this case. Even if the Court were

to allow Chocallo to pursue her defense of this claim to the

merits, her history of dilatoriness and willful disobedience of

this Court’s scheduling orders on multiple occasions indicate

that allowing her additional time to argue a defense would not be

fruitful. Put simply, any sanction that could allow Chocallo to

delay the proceedings further would not be effective.

Finally, the Court must address the meritoriousness of

Chocallo’s defense to the United States’s claim. Under this

factor, a defense is meritorious when the allegations of the

pleadings, if established at trial, would constitute a complete

defense. Poulis, 747 F.2d at 869-70. The government’s complaint

in Civil Action No. 06-539 asserts that the United States

overpaid Chocallo when it erroneously sent her a second tax

refund check. Chocallo did not file an answer to the complaint. 

Although she did file a motion to dismiss (Civ. A. No. 06-539,

Docket No. 14), that motion did not argue the merits of the

government’s claim, but simply restated Chocallo’s position that

the proceedings in this Court were illegal. 

As best the Court can tell, Chocallo’s position on the

government’s claim is that if she did in fact receive an

erroneous refund, she should be allowed to keep it because the

IRS did not send her a notice of deficiency. See 2/9/07 Tr. at

Case 2:04-cv-03737-MAM Document 67 Filed 12/01/08 Page 5 of 7
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31:8-12 (Civ. A. No. 06-539, Docket No. 10). At the status

conference held on February 9, 2007, Chocallo appeared to refer

to United States v. Singleton, 128 F.3d 833 (4th Cir. 1997), in

support of this proposition. See 2/9/07 Tr. at 31:8-12. In that

case, the Court of Appeals for the Fourth Circuit noted that the

government can reclaim an erroneous refund in two ways: by

bringing an erroneous refund suit under 26 U.S.C. § 7405 within

two years after the refund was made, or by pursuing proper postcollection assessment procedures, including notice of deficiency

and demand for payment, followed by judicial or administrative

action. Singleton, 128 F.3d at 837. Although Chocallo has

argued that she received no notice of deficiency, she did not

plead facts to show that the United States did not follow any

permissible procedure. She thus has not alleged facts that would

constitute a complete defense at trial.

Even if Chocallo’s defense were meritorious under

Poulis, the Court would still find that the balance of the

factors weighs in favor of entering default on the government’s

claim. Chocallo willfully refused to take any opportunity to

present on the merits any defense that she may have had. Her

adversary has suffered prejudice, and the Court finds no

alternative sanction to be effective. Entry of default against

Chocallo is therefore an appropriate sanction for her conduct.

Case 2:04-cv-03737-MAM Document 67 Filed 12/01/08 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WANDA P. CHOCALLO : CIVIL ACTION

:

v. :

:

INTERNAL REVENUE SERVICE :

DEPARTMENT OF THE TREASURY : NO. 04-3737

UNITED STATES OF AMERICA : CIVIL ACTION

:

v. :

:

WANDA P. CHOCALLO : NO. 06-539

 ORDER

AND NOW, this 26th day of November, 2008, IT IS HEREBY

ORDERED, for the reasons stated in the accompanying memorandum

dated November 26, 2008, that the Clerk of Court shall enter

default against Wanda P. Chocallo on the United States’s claim in

Civil Action No. 06-539.

BY THE COURT:

/s/ Mary A. McLaughlin

MARY A. MCLAUGHLIN, J.

 

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