Because the Court is writing solely for the benefit of the 1

parties, it assumes that the reader is familiar with the

pertinent background facts. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CENTRIX HR, LLC, : CIVIL ACTION

:

Plaintiff : 04-5660

:

v. : 

:

ON-SITE STAFF MANAGEMENT, INC., :

d/b/a CENTRIX STAFFING, CENTRIX :

HR LOGISTICS, INC., and :

WILLIAM BLACK,

:

Defendants. :

MEMORANDUM AND ORDER

Joyner, J. September 27, 2006

Presently before the Court is Defendants On-Site Staff

Management, Inc. d/b/a Centrix Staffing’s, Centrix HR Logistics,

Inc.’s, and William D. Black’s (collectively “Defendants”) Motion

for Summary Judgment, or Alternatively to Dismiss Pursuant to

Fed. R. Civ. P. 37(c) (“D. Mot.”) (Doc. No. 23), and Plaintiff’s

(“Centrix”) response thereto (“Pl. Mot.”) (Doc. No. 24). For the

reasons below, the Court DENIES Defendants’ Motion.

Discussion1

A. Motion for Summary Judgment

In deciding whether summary judgment is appropriate under

Fed. R. Civ. P. 56, a court must determine “whether there is a

genuine issue of material fact and, if not, whether the moving

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 1 of 10
2

party is entitled to judgment as a matter of law.” Medical

Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999)

(internal citation omitted). As the moving party, Defendants

bear the initial burden of demonstrating the absence of a

disputed issue of material fact. See Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). They have not done so here. 

The moving party need not introduce affirmative evidence in

order to satisfy its initial burden. See id. at 323 (“no express

or implied requirement in Rule 56 that the moving party support

its motion with affidavits or other similar materials negating

the opponent’s claim”). But as the moving party, Defendants must

do more than simply claim that they are entitled to summary

judgment. In lieu of supporting its motion with affirmative

evidence, the movant can satisfy its burden by showing that the

non-moving party has insufficient evidence to prevail on the

merits as a matter of law. See, e.g., Conoshenti v. Public Serv.

Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (“the burden on

the moving party may be discharged by ‘showing’-that is, pointing

out to the district court - that there is an absence of evidence

to support the nonmoving party's case when the nonmoving party

bears the ultimate burden of proof”)(citations, quotation marks

omitted); see generally, 10A Wright, Miller, & Kane, Federal

Practice and Procedure: Civil (“Wright, Miller & Kane”) § 2727. 

Defendants have neither offered the necessary affirmative

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 2 of 10
3

evidence nor specifically identified evidentiary deficiencies in

Plaintiff’s case that would make summary judgment appropriate at

this time.

The lone piece of evidence proffered in support of

Defendants’ motion for summary judgment is an affidavit from

Defendant William D. Black, President of co-Defendants Centrix HR

Logistics, Inc. and On-Site Staff Management, Inc. See D. Mot.,

Ex. I (“Black Aff.”). The affidavit is mainly a chronology of

the business dealings between Defendants and Plaintiff. Black

adds for good measure, however, that “[he] never acted

intentionally to harm, defraud or injure Centrix.” Id., at ¶ 26. 

While Black’s affidavit does provide some detail about

Defendants’ activities as they regard Plaintiff, it is ultimately

a statement by one Defendant claiming little more than ‘Plaintiff

violated the licensing agreement’ and ‘I didn’t do anything

wrong.’ See id., at ¶¶ 14, 26. It is in effect nothing more

than a self-serving and conclusory declaration. It is also the

type of affidavit (i.e. evidence) that is inadequate to satisfy

the moving party’s burden. See Blair v. Scott Specialty Gases,

283 F.3d 595, 608 (3d Cir. 2002) (“In order to satisfy the

standard for summary judgment ‘the affiant must ordinarily set

forth facts, rather than opinions or conclusions. An affidavit

that is 'essentially conclusory' and lacking in specific facts is

inadequate to satisfy the movant [or non-movant]'s burden.’")

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 3 of 10
 Were discovery now long over, Defendants’ contentions 2

might be somewhat valid. That little, if any, documents have

been exchanged between the parties, and no depositions taken,

make Defendants’ conclusions as to the sufficiency of Plaintiff’s

evidence premature.

4

(quoting Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985)). 

Therefore, Black’s affidavit, standing alone, is insufficient to

satisfy Defendants’ burden.

Black’s affidavit aside, Defendants offer little else in

support of their motion. Their argument is devoid of any

substantive legal analysis. It is in fact merely a set of

conclusions:

The ease with which Plaintiff could respond

to Defendants’ reasonable discovery requests

raises suspicion as to the merits of

Plaintiff’s action. Plaintiff has had more

than sufficient time to come forward with

evidence to support the allegations in its

Complaint. Plaintiff’s failure to do so

demonstrates that it cannot meets [sic] its

burden of persuasion.

Memorandum of Law in Support of Defendants’ Motion for Summary

Judgment or Alternatively for Dismissal (“D. Memo.”) at 5. 

Defendants appear to be arguing that they are entitled to summary

judgment because Plaintiff has itself not moved for summary

judgment. But Plaintiff is of course not required to under the 2

Rules; indeed, each party enjoys unfettered discretion in

deciding whether to move for summary judgment (or file any other

dispositive motions for that matter). Plaintiff therefore has

had no reason to affirmatively introduce evidence supporting its

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 4 of 10
 Rule 37(c) references Rule 37(b)(2)(C), which provides, in 3

relevant part, that the district court may “dismiss[] the action

or proceeding or any part thereof, or render[] a judgment by

default against the disobedient party” for: (a) failure to comply

with discovery orders (see Fed. R. Civ. P. 37(b)); (b) for

failure to disclose information (or for providing false or

misleading information) (see Fed. R. Civ. P. 37(c)); or (c) for

failure to perform discovery obligations (i.e. answering

interrogatories, attending depositions, responding to information

requests) (see Fed. R. Civ. P. 37(d)).

5

claims. And it still has no reason to do so. 

Because Defendants have not met their burden of

demonstrating the absence of a disputed issue of material fact,

Plaintiffs do not have to introduce any evidence to avoid summary

judgment. Accordingly, this Court DENIES Defendants’ motion for

summary judgment.

B. Motion to Dismiss under Rule 37

Defendants’ motion to dismiss pursuant to Fed. R. Civ. P.

37(c) is completely without merit. "The sanction of dismissal 3

is disfavored absent the most egregious circumstances." U.S. v. $

8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003). 

Defendants claim that dismissal is appropriate because “Plaintiff

has continually obstructed Defendants’ access to necessary

documents and information, and has failed to make even the

minimum disclosures required by [Rule 26].” D. Memo. at 4. If

this were true, dismissal or another sanction of a similar nature

would be appropriate. A review of the record reveals, however,

that Plaintiff’s conduct has been generally forthright, direct

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 5 of 10
6

and professional. In fact, the evidence Defendants present

undercuts their argument.

In determining whether the severe sanction of dismissal is

justified, the Court must weigh 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) 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) (emphasis in original).

When considering these factors, it is not necessary that the

Court find each one present to warrant dismissal. See Hicks v.

Feeney, 850 F.2d 152, 156 (3d Cir. 1988). In this case, however,

none of the factors tip in favor of Defendants. As to the first

factor, Defendants have not demonstrated through affidavits or

otherwise that Plaintiff Centrix, rather than its counsel, is

personally responsible for any discovery violations. Likewise,

Defendants have not shown that Plaintiff failed to meet any

scheduling orders or has conducted discovery in such a manner as

to prejudice Defendants. 

Defendants also can not demonstrate that Plaintiff has a

history of dilatory conduct. In December 2005, for example,

Plaintiff promptly responded to Defendants’ request for

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 6 of 10
 The Court has not overlooked Defendants’ complaint that 4

they have sought to depose Blaise Mazzoni (“Mazzoni”) on several

occasions without success. See D. Memo. at 5 (“Plaintiff has also

cancelled two separately noticed depositions of the Plaintiff.”). 

Plaintiff argues that the parties agreed that depositions were

not to take place before each side reviewed the other’s

documents; and, in any event, it is procedurally improper under

the Rules to depose a non-party without first serving a subpoena.

See Plaintiff’s Response to Defendant’s Motion for Summary

Judgment or Alternatively to Dismiss Pursuant to Fed. R. Civ. P.

37 (“P. Memo.”) at 3, 7 n.2. Because Mazzoni is not a party

(contrary to Defendants’ suggestion) to this action, Plaintiff’s

latter contention is absolutely correct. See Fed. R. Civ. P.

30(a)(2) (“The attendance of witnesses may be compelled by

subpoena as provided in Rule 45.”); see generally Wright, Miller

& Kane § 2107 (“Though the rules do not say so expressly, a

subpoena is not necessary if the person to be examined is a party

. . . .”) Plaintiff maintains, however, that even though

Defendants failed to serve Mazzoni with a subpoena, it never

objected to him being deposed. Whether Plaintiff has standing to

object on behalf of Mazzoni to him being deposed is not a

question the Court needs to answer. It is clear that Mazzoni (or

Plaintiff acting on Mazzoni’s behalf and without his objection)

was willing to be deposed at a mutually agreed upon time without

being compelled by subpoena. The Court has reviewed the

electronic correspondence attached to the parties’ motion papers

and concludes that Plaintiff’s behavior has not been dilatory

7

outstanding discovery responses. See D. Mot., Ex. B (12/19/05 email from Plaintiff’s counsel responding to Defendants’ 12/15/05

request). Subsequent emails between opposing counsel also

suggest that Plaintiff has made an effort to schedule depositions

and document reviews. See, e.g, D. Mot., Ex. D (4/10/06 and

4/6/06 emails from Plaintiff’s counsel to Defendants’ counsel

recommending 4/20/06 or 4/25/06 to review documents and noting,

again, that depositions would not commence before seeing

Defendants’ documents). Without a history of dilatory conduct,

there is nothing to point to that is willful or in bad faith.4

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 7 of 10
with respect to this deposition. The Court believes that the

parties, upon exchange and review of documents, will be able to

agree upon a mutually acceptable time for Mazzoni’s deposition. 

The Court notes that if Defendants are actually seeking to depose

Plaintiff Centrix (a corporate entity) itself vis-à-vis Mazzoni

the correct procedural route is through a Rule 30(b)(6)

deposition.

 The Court previously denied Defendant Black’s motion to 5

dismiss Plaintiffs’ RICO claim. See Doc. No. 10, Order Dated

April 5, 2005.

 Defendants are, of course, welcome to bring future motions 6

under Rule 37 to compel discovery or otherwise. For example,

Defendants allude to Plaintiff’s failure to make certain

mandatory Rule 26(a)(1) disclosures. See D. Memo. at 4. A party

that fails to make these mandatory disclosures is subject to

sanctions under Rule 37. See Fed. R. Civ. P. 37(a)(2)(A).

Defendants’ present allegation of insufficient Rule 26(a)(2)

disclosures is too vague, however, for the Court to make a

definitive ruling as to whether Plaintiff’s conduct is

8

Plaintiff on the other hand has appeared to work with

Defendants in order to complete document exchanges and conduct

depositions. See, e.g., Plaintiff’s Response to Defendant’s

Motion for Summary Judgment or Alternatively to Dismiss Pursuant

to Fed. R. Civ. P. 37 (“P. Memo”) (Doc. No. 24), Ex. F (email

correspondence between opposing counsel dating from 3/29/06 to

5/5/06 discussing possible dates to conduct depositions and

document review). 

As to the final two factors, the Court does not find that

Plaintiff’s conduct warrants in the alternative any lesser

sanctions or that its claims are without merit as to justify

dismissal. Therefore, the Court DENIES Defendants’ motion to 5

dismiss under Rule 37.6

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 8 of 10
sanctionable. This is especially true in light of Plaintiff’s

contention that it has made all necessary “self-executing”

disclosures, albeit in the form of an interrogatory response. See

P. Memo at 4 n.1, 8-9. Defendants are reminded, however, that

all Rule 37 motions must be accompanied by a certification that

they have in good faith conferred or attempted to confer with

opposing counsel before seeking relief from the district court.

See Fed. R. Civ. P. 37(a)(2). No such certification accompanied

this present motion.

9

Conclusion

For the foregoing reasons, the Court DENIES Defendants’

Motion for Summary Judgment, or Alternatively to Dismiss Pursuant

to Fed. R. Civ. P. 37(c). An appropriate Order follows.

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 9 of 10
10

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CENTRIX HR, LLC, : CIVIL ACTION

:

Plaintiff : 04-5660

:

v. : 

:

ON-SITE STAFF MANAGEMENT, INC., :

d/b/a CENTRIX STAFFING, CENTRIX :

HR LOGISTICS, INC., and :

WILLIAM BLACK,

:

Defendants. :

ORDER

AND NOW, this 27th day of September 2006, upon consideration

of Defendants On-Site Staff Management, Inc. d/b/a Centrix

Staffing’s, Centrix HR Logistics, Inc.’s, and William D. Black’s

(collectively “Defendants”) Motion for Summary Judgment, or

Alternatively to Dismiss Pursuant to Fed. R. Civ. P. 37(c) (Doc.

No. 23), and Plaintiff’s (“Centrix”) response thereto (Doc. No.

24), it is hereby ORDERED that Defendants’ Motion is DENIED

WITHOUT PREJUDICE.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.

Case 2:04-cv-05660-TJR Document 25 Filed 09/29/06 Page 10 of 10