IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD KAMUCK, : Civil No. 4:11-CV-1425

:

Plaintiff, : (Magistrate Judge Carlson)

:

v. :

:

SHELL ENERGY HOLDINGS GP, :

LLC., SHELL ENERGY HOLDINGS :

LP, LLC, and SWEPI, LP (d/b/a SHELL :

WESTERN EXPLORATION AND :

PRODUCTION, LP) :

 :

Defendants. :

OPINION

I. Introduction

In its current posture this case presents an unusual circumstance. The plaintiff

who has brought this action, Edward Kamuck, has becomes estranged from his

counsel, who has withdrawn from the case. Kamuck, who has for the past two years

been proceeding pro se has also essentially boycotted his own litigation, failing to

comply with discovery demands, discounting court orders, declining to litigate the

claims which he has brought and generally “playing possum” when litigation demands

are thrust upon him. Fattah v. Beard, 214 F. App'x 230, 233 (3d Cir. 2007). Instead

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 1 of 45
of fulfilling his responsibilities as a litigant Kamuck has, sadly, simply insisted that

the defendants should settle this case on terms that he deems favorable.

This dilatory behavior has now persisted for two years despite repeated and

explicit warningsfrom this Court that the failure to actively, and properly, litigate this

matter may result in the dismissal of this case. Moreover, the dispositive summary

judgment motion filed by the defendants, which has never been fully and adequately

addressed by Kamuck, exposes the legal and factual bankruptcy of Kamuck’s claims.

In thissetting where the plaintiff has, in effect, abandoned his own litigation by failing

over the past two years to abide by court orders, comply with discovery, and

adequately respond to dispositive motions, and the plaintiff’s claims now fail on their

merits, we are now compelled to conclude that dismissal of this matter is warranted.

II. Statement of Facts and of the Case

On August 3, 2011, the plaintiff, Edward Kamuck, acting through counsel filed

this civil complaint. (Doc. 1.) The well-pleaded facts set forth in the plaintiff’s initial

counseled complaintrecited that Kamuck was a totally disabled VietnamWar veteran.

(Doc. 1, ¶1.) In December of 2009, Kamuck purchased a 93 acre tract of land in rural

Tioga County. (Id., ¶17.) This tract of land was part of a larger property formerly

known as the Copp property. (Id., ¶8.) The Copp Property was a 323 acre property

in Tioga County, which was subject to the Copp Lease, an Oil and Gas Lease, a lease

-2-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 2 of 45
which permitted removal of mineral resources, contained a ten-year primary termand,

if certain mineral extraction activities were initiated during that primary term,

provided the Lessee with a fee simple determinable. (Id. at ¶¶ 8-10.) The Copp Lease

also provided the Lessee with a right to unitize the Copp Lease with other leases for

production from the Onondaga, Oriskany, or deeper formations. (Id. at ¶ 13.) The

rights conferred by the original Copp Lease, however, did not reach, or speak to,

extraction of natural gas from Marcellus Shale formations. When the Copp Property

was later subdivided into 5 properties, including the land purchased by the plaintiff,

each property owner took the property subject to mineral rights conferred by the Copp

Lease. ( Id. at ¶¶ 17, 18.) 

By 2010, the defendants were lessees under the Copp Lease, and sought to

expand their mineral rights to include extraction of natural gas from Marcellus Shale

formations. Towards that goal, the defendants approached each of the owners of a

property subdivided fromthe original Copp Property and asked these property owners

to execute an Amendment and Ratification (“Amendment”) to the Copp Lease,

authorizing the extraction of these Marcellus Shale resources on the property owner’s

land, subject to a unitizing agreement. (Id., Exhibit 8.) All of the property owners

who held lands formerly encompassed by the Copp Lease signed the Amendment to

the Copp Lease with one exception–the plaintiff, Edward Kamuck. Accordingly,

those adjoining properties are subject to the Copp Lease, as amended, and the

-3-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 3 of 45
defendants have commenced drilling and extraction of natural gas from these

properties under the terms of the amended Copp Lease. Because Kamuck refused to

enter into the Amended Copp Lease, the original 10-year lease on his property expired

by its own terms on June 12, 2011.

The defendants then began natural gas extraction from the Marcellus Shale

deposits found beneath the properties of adjoining land owners who had signed the

Copp Lease addendums, using a technique called “fracking” , in which wells are 1

drilled and shale deposits are fractured by pumping chemicals known as “fracking

fluid” into the wells, thus releasing the natural gas trapped within the shale deposits. 

After defendants commenced Marcellus Shale extraction and production on

these adjoining properties, on August 3, 2011, Kamuck filed this civil complaint.

(Doc. 1.) In his complaint, Kamuck alleged that the activities of the defendants, who

are using “fracking” technology to extract natural gas from Marcellus Shale on these

adjoining properties, was conducted in a manner that was harmful both to the plaintiff

and his property. Kamuck’s initial, counseled complaint then brought ten separate

claims, sounding both in contract and in tort. Thus, Kamuck brought a claim against

the defendants for breach of contract under the Copp Lease, (Id., Count 1); for breach

“Fracking” or “hydrofracturing is a process in which pressurized fluids are

1

used to dislodge and release natural gas from deep underground formations.”

Fiorentino v. Cabot Oil & Gas Corp., 750 F.Supp.2d 506, 510 (M.D.Pa. 2010).

-4-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 4 of 45
of a duty of good faith and fair dealing (Id., Count 2); declaratory judgment counts

seeking declarations interpreting and invalidating aspects of the Copp Lease and

amendments, (Id., Counts 3,4 and 5); a claim for anticipatory trespass, (Id., Count 6);

a count alleging that the defendants’ activities constitute a private nuisance, (Id.,

Count 8); a count alleging negligence by the defendants in their Marcellus Shale

drilling operations, (Id., Count 9); and a count asserting strict liability based upon the

theory that natural gas extraction through “fracking” is an ultra hazardous activity,

(Id., Count 10).

The defendants moved to dismiss this complaint in its entirety, alleging that

none of Kamuck’s tort or contract claims state a claim upon which relief may be

granted. (Doc.11.) In addition, the defendants filed a motion to strike a series of

averments fromthe complaintrelating to punitive damages, attorneys’ fees, and claims

for emotional distress. (Doc. 13.) Following briefing of these issues, in April of 2012,

the motion to dismiss was granted with respect to the plaintiff’s contract-based claims,

as well asthe plaintiff’s anticipatory trespass claim, negligence per se claim, and gross

negligence claim, but denied with respect to Kamuck’s negligence,strict liability and

nuisance claims, the sole surviving claims in this lawsuit. (Doc. 39.) Upon the

consent of the parties, this matter was then reassigned to the undersigned for trial.

(Doc. 40.) 

-5-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 5 of 45
What then followed was the slow disintegration of Kamuck’s case. While we

initially set discovery and pretrial schedules for this case which would have completed

discovery in 2012, those efforts were hobbled by an increasingly dysfunctional

relationship between the plaintiff and his attorney. By January of 2013, this

relationship wasirretrievably broken, with the plaintiff refusing to speak with his own

counsel or even look at counsel during the course of a mediation conducted by the

Court on January 25, 2013. (Doc. 66.) Presented with Mr. Kamuck’s increasingly

erratic conduct and stubborn refusal to co-operate or communicate with his own

counsel, we granted plaintiff’s counsel leave to withdraw and directed Mr. Kamuck

to report to us by April 22, 2013, regarding his efforts to obtain new counsel. (Doc.

67.) 

We then, sadly, began receiving communications from Mr. Kamuck which

suggested that his expectations for this litigation were wholly divorced from reality.

Specifically, Mr. Kamuck adopted a posture that would repeat itself throughout this

litigation, a posture in which he reported that he was unable to retain counsel,

suggested that he was unwilling or unable to conduct discovery, and failed to meet

litigation deadlines, but persisted in requesting that we schedule further mediation

efforts on his behalf, efforts that were unavailing given the plaintiff’s unwillingness

to compromise his position. (Docs. 68 and 70.) 

-6-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 6 of 45
Mr. Kamuck’s approach to thislitigation, which entailed neither advancing nor

retreating, soon began to effect the scheduling of this case to the profound prejudice

of the defendants. Thus, we were compelled to extend the deadline for preparation of

a case management schedule in May 2013 due to delays on Mr. Kamuck’s part in

participating in this process, something he was required to do. (Docs. 72 and 74.)

Despite providing Mr. Kamuck with an extension of time in which to participate in the

formulation of a case management plan, when the extended deadline for submission

of this plan arrived, Mr. Kamuck once again declined to participate in this process, and

the defendants were compelled to unilaterally submit a proposed case management

plan. (Doc. 75.)

In May 31, 2013, we conducted a case management conference with Mr.

Kamuck and defense counsel. (Doc. 91, ¶¶53 and 54.) In order to eliminate any

prejudice to Mr. Kamuck, at that time we directed the defense to provide the plaintiff

with a complete set of the discovery materials previously given to Kamuck’s former

counsel, and the defense complied with this direction. (Id.) We also stressed to Mr.

Kamuck the importance of his compliance with all discovery and litigation

obligations, even if he proceeded pro se and while he was continuing his search for

new counsel. (Id.) On June 11, 2013, we then set a case management schedule which

called for completion of discovery , including expert discovery, by October 28, 2013.

-7-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 7 of 45
(Doc. 77.) We also instructed Mr. Kamuck, who was now proceeding pro se, on his

responsibilities as a litigant to comply with court orders.

What followed then were several months of apparent indifference and inaction

by Mr. Kamuck regarding his responsibilities in thislitigation which he had instigated.

Thus, on June 21, 2013, defendants’ counsel wrote a letter to Mr. Kamuck describing

a series of discovery failures and deficiencies on the part of the plaintiff. These

deficiencies included Kamuck’s failure to provide a computation of damages, failure

to provide documents requested by defendants, incomplete and missing responses to

interrogatories served by defendants, and incomplete or incorrect responses to

defendants’ requests for admission. (Doc. 91, ¶56.) Mr. Kamuck did not cure these

deficiencies. Accordingly, one month later, on July 25, 2013, defendants sent a

follow-up letter to Mr. Kamuck noting that he had failed to respond to the June 21

correspondence and reminding him of his obligations under the Federal Rules of Civil

Procedure. Mr. Kamuck failed to respond to this letter as well.

Despite allowing severalmonths for completion of discovery,Mr. Kamuck also

did not make himself available for the scheduling of his own deposition by the

defendants, another rudimentary duty of litigants. (Doc. 78.) Thus, on September 5,

2013, defendants noticed the deposition of Mr. Kamuck for the first time, scheduling

the deposition to take place on September 30, 2013, which was also the close of fact

discovery pursuant to the Court’s June 11, 2013, case management order. (Doc. 91,

-8-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 8 of 45
¶58.) Shortly before this deposition was scheduled to take place, on September 25,

2013, defense counsel was informed that Mr. Kamuck would not attend this

deposition. (Doc. 91, ¶59.) In accordance with Mr. Kamuck’s wishes, on October

2

4, 2013, defendants noticed the deposition of plaintiff for the second time, scheduling

the deposition to take place on October 18, 2013. (Id., ¶61.) On October 16, 2013,

Kamuck once again informed counsel for defendants that he would not be attending

this deposition as well because of his inability to retain counsel. (Id., ¶62.) Moreover,

no medical records were produced by Mr. Kamuck regarding his alleged medical

issues, despite a pending document requests for all medical records. (Id., ¶60.) Mr.

Kamuck also neglected to provide the defense any expert reports, as required by our

prior case management order. (Doc. 78.) These failures on Mr. Kamuck’s part

compelled the defendants to seek an extension of the defendants’ own expert report

deadlines, (Doc. 78.), a request which as granted by the Court. (Doc.79.) On October

18, 2013, defense counsel also reminded Mr. Kamuck in writing of his obligations

under the Federal Rules of Civil Procedure, and notified him that they reserved the

right to seek sanctions for his repeated cancellations of his deposition, including

This notice was received from an attorney, John Molnar, who had 2

sporadically interposed himself in this case. Because Mr. Molnar’s intermittent

involvement added to the confusion in this case we directed him to clarify his role

in this matter in January of 2014, and we were informed that Mr. Molnar was not

entering an appearance in this case. (Doc. 101.) For the past year we have neither

seen, nor heard, from Mr. Molnar

-9-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 9 of 45
precluding Mr. Kamuck from offering certain testimony in opposition to a motion for

summary judgment. (Doc. 91, ¶63.)

At no time between June and October of 2013 did Mr. Kamuck provide any

explanations to the Court for his on-going failure to cooperate with counsel, comply

with his discovery obligations, or meet court ordered deadlines. Finally, on October

25, 2013, we received a communication from Mr. Kamuck, which attributed all of his

difficulties to the failure of his former counsel to provide him some unspecified files

and materials. (Doc. 80.) We promptly acted upon this matter, scheduling a

conference call in this case on November 21, 2013. (Doc. 84.) During this

conference, we learned that there was very little in discovery that Mr. Kamuck did not

already have from his former counsel. We then strongly stressed to Mr. Kamuck the

importance of complying with his discovery obligations, including showing up for his

deposition, and advised him that dismissal of his claims was a potential consequence

for failure to comply with discovery. (Doc. 91, ¶¶66-7.) 

Following this conference, we then set a timetable for the release of any

materials to Mr. Kamuck by his former counsel, and scheduled the much delayed

deposition of Mr. Kamuck for January 3, 2014. We also directed Mr. Kamuck to cure

all of his discovery delinquencies by January 3, 2014. (Id.) Finally, we warned Mr.

Kamuck in clear and precise terms of his obligations as a litigant and the consequences

which would flow from a failure to fulfill those obligations, stating that: “In closing,

-10-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 10 of 45
we emphasize for the plaintiff that Rule 41(b) of the Federal Rules of Civil Procedure

provides 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.’ The

rule thus compels a plaintiff who has initiated a civil action against a defendant to

comply with all court orders, and to ensure that the civil action is prosecuted timely.

The rule also makes clear that the failure to prosecute an action, or the failure to

comply with court orders like the order being issued today, may result in the

involuntary dismissal of a lawsuit. Accordingly, the plaintiff is hereby expressly

advised that any further failure to comply with case-management deadlines the

discovery process, and court orders may result in the dismissal of this action.” (Id.)

On November 27, 2013, defendants noticed the deposition of Mr. Kamuck for

the third time, scheduling the deposition to take place on January 3, 2014, in order to

give the plaintiff the maximum amount of time to respond to defendants’ outstanding

discovery requests. (Doc. 91, ¶71.) Two weeks later, on December 11, 2013,

defendants sent yet another letter to Mr. Kamuck detailing his on-going failure to

comply with his outstanding discovery obligations. (Id., ¶72.)

Despite knowing of the third scheduled deposition for more than a month, on

January 2, 2014–one day before the deposition wasto take place–Mr. Kamuck caused

the defendants to be notified that “the depositions must be cancelled and rescheduled.”

-11-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 11 of 45
(Id., ¶78.) When defense counsel declined to cancel the deposition, they were

informed that “Mr. Kamuck will not be attending the deposition tomorrow.” (Id.,

¶80.) Thus, Mr. Kamuck has never submitted to a deposition, and more than a year

has elapsed since he last refused to be deposed. Moreover, the ostensible reasons for

at least some of these delays was that Mr. Kamuck was retaining counsel, (Id., ¶¶73-

78), however, in the ensuing months no attorney has entered an appearance on behalf

of the plaintiff despite the ample opportunity we have afforded to Mr. Kamuck

throughout this litigation to secure counsel. Thus, the posture of the case has

remained precisely where Mr. Kamuck has left it for the past year, with the plaintiff

unwilling to proceed with the litigation, and unprepared to support or defend the

claims which he has made. 

It is against this procedural backdrop that the defendants filed a motion for

summary judgment on January 17, 2014. (Doc. 90.) That thoroughly documented

motion revealed an absolute paucity of proof on Mr. Kamuck’s part supporting his

remaining negligence, strict liability and nuisance claims. Thus, the undisputed

factual receord filed by the defendants in support of their motion for summary

judgment revealed the following:

At the outset, Mr. Kamuck’s claims failed as to some of the defendants named

in this action because, despite requests from defendants, Mr. Kamuck has not

-12-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 12 of 45
produced any documentation or evidence demonstrating that Shell GP had any

involvement in the activities which form the basis of this action, and has not produced

any evidence contradicting defendants’ assertion that another named defendant, Shell

LP, no longer exists as a legal entity. (Doc. 91, ¶¶6-8.)

Furthermore, despite years of litigation Mr. Kamuck has produced no evidence

to support many of the allegations which he initially made in this case. For example,

Mr. Kamuck has never identified the time, date, location, or extent any toxic chemical

release that he alleges took place on any part of the Kamuck Property or adjoining

properties. Neither has Mr. Kamuck identified any toxic substances that were

allegedly released on his property. (Id., ¶15.) Mr. Kamuck has also failed to produce

any evidence identifying specific environmental contamination, fire, explosion or any

other hydro-carbon production mishap that affected his well-being or property. (Id.)

Nor has he presented any competent proof supporting his nuisance claims relating to

vehicle traffic and the alleged spraying of toxic chemicals on the roadway adjoining

his land. (Id.)

In fact, the plaintiff’s own soil and water testing revealed the presence of no

harmful contaminants on Mr. Kamuck’s property or in his drinking water. (Id., ¶¶16-

28.) Further, Mr. Kamuck has proffered no timely, competent expert reports attesting

to a causal connection between hydro-carbon production and injuries that Mr. Kamuck

-13-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 13 of 45
has claimed to either his person or his property. (Id.) Nor has Mr. Kamuck tendered

any evidence regarding any loss of property value, such as independent appraisals of

the Kamuck Property, as a result of this hydro-carbon extraction on adjoining lands

and Mr. Kamuck has not presented any evidence that he has had to spend money to

remedy any property damage to the Kamuck Property suffered as a result of

defendants’ activities. (Id.)

Likewise, Mr. Kamuck’s private nuisance claims remain factually unsupported.

These claims were based upon the traffic levels on the road adjacent to Kamuck’s

property, but Kamuck presented no expert testimony or evidence regarding “proof of

the level, of the illegal level, and of the damages” associated with the noise from the

use of Mudge Road, despite representations to the Court on October 24, 2011, that

such evidence existed and was available. (Doc. 91, ¶40.) 

Finally, with respect to Kamuck’s strict liability claim, which entails a legal

determination of the societal risks and rewards of hydro-carbon extraction activities,

the defendants presented a thoroughly documented factual record in their summary

judgment motion. That record revealed that there have been hundreds of wells drilled

in Tioga County, which have yielded millions of dollars in extraction fees for the

county. (Id., ¶85-86.) The county has also benefitted through the payment of impact

fee allowances. (Id., ¶¶87-89.) Furthermore, numerous scientific and legislative

-14-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 14 of 45
studies have concluded that natural gas extraction is not an abnormally dangerous

activity of the type that would give rise to strict tort liability. (Id., ¶¶93-116.) In

addition, these government and private studies have documented the positive

economic impact of this activity, both in terms of billions of dollars in economic

activity and tens of thousands of new jobs in the communities affected by this hydrocarbon extraction. (Id.) None of these matters have been addressed or rebutted in any

way by Mr. Kamuck.

Presented with this comprehensively documented dispositive motion Mr.

Kamuck initially sought familiar refuge in delay, (Doc 97.), a request which we

granted. (Doc. 99.) At the time that we granted this request, though, we notified Mr.

Kamuck of the legal consequences which could flow from his failure to timely and

fully respond to defense motions, advising him that Local Rule 7.6 of the Rules of this

Court imposes an affirmative duty on the plaintiff to respond to motions, and

instructing him that 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).

-15-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 15 of 45
Therefore, a failure to comply with this basic responsibility could result in the motion

being deemed unopposed and granted. (Doc. 99.)

When Mr. Kamuck did respond to this dispositive motion, his response was not

responsive to many of the issues raised by that motion. (Doc. 100.) Thus, Mr.

Kamuck did not submit a counter-statement of facts opposing thissummary judgment

motion, as required by Local Rule 56.1. Nor did he advance any legal arguments

through a brief in opposition to this motion, as also required under the Rules of this

Court. Instead, Mr. Kamuck’s response simply repeated what were now familiar

refrainsin thislitigation, coupling complaints about past counsel with promises of new

counsel, and an insistence that the defendants should settle his case on terms the

plaintiff deemed favorable. (Id.)

This response was also procedurally flawed in another fundamental respect. In

an apparent effort to create some sort of factual dispute, Mr. Kamuck attached three

documents styled as “affidavits” to his pleading. (Id.) However, a cursory review of

these documents revealed that none of them are affidavits executed under penalty of

perjury, a fact which rendered the documents worthless from an evidentiary stand

point since “[t]he failure to acknowledge the penalty of perjury preventsthe court from

considering the affidavits' contents for purposes of summary judgment. Tukesbrey v.

Midwest Transit, Inc., 822 F.Supp. 1192, 1198 (W.D.Pa.1993) (non-conforming,

-16-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 16 of 45
unsworn materials to be stricken); see also Nissho–Iwai American Corp. v. Kline, 845

F.2d 1300, 1305–06 (5th Cir.1988) (non-conforming, unsworn affidavits treated as

‘incompetent to raise a fact issue precluding summary judgment’).” United States v.

Branella, 972 F. Supp. 294, 300 (D.N.J. 1997).

The defendants promptly identified this basic deficiency in Mr. Kamuck’s

response and moved to strike these non-evidentiary materials. (Doc. 103.) Presented

with this legal challenge, Mr. Kamuck turned to what had, sadly, become another

familiar refuge for this litigant, passive inaction. Indeed, in the intervening months,

Mr. Kamuck has never elected to respond to this motion in any fashion, a failure

which now permits us to deem the motion to be unopposed. 

Mindful of the fact that Mr. Kamuck’s pleadings had insisted that he was

actively securing counsel, we have allowed an extended period of time to pass since

these motions were filed in order to afford Mr. Kamuck every opportunity to fulfill the

commitments he had previously made to this court to obtain counsel and actively

pursue these claims. Regrettably, Mr. Kamuck’s actions have not matched his

statements, and despite being afforded manymonths by the court to take further action

in this case, he has not secured counsel, further responded to these motions, or taken

any steps to actively litigate the claims which he has brought. 

-17-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 17 of 45
It is against thisstark, sad backdrop of inaction, and non-compliance with court

requirements, that we now consider these dispositive motions. For the reasons set

forth below, the motions will be granted and the case will be dismissed.

II. Discussion

A. Under The Rules of This Court This Motion to Strike Should

Be Deemed Unopposed and Granted.

At the outset, under the Local Rules of this Court the plaintiffshould be deemed

to concur in the defendants’ motion to strike, (Doc. 103.), 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 this Court 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.

-18-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 18 of 45
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 to strike. 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. See

Fed.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

-19-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 19 of 45
possible [but that] justice also requiresthat 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 strike. 

These failures now compel us to apply the sanction called for under Rule 7.6, and

deem the plaintiff to not oppose this motion. 

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

Dismissal of this action is also warranted under Rule 41 of the Federal Rules of

Civil Procedure due to Kamuck’s repeated failure to prosecute this case over the past

two years. 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

-20-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 20 of 45
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 ofthe party's personalresponsibility;

(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.” 

-21-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 21 of 45
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 506 (3d Cir.

2007); Azubuko v. Bell National Organization, 243 F. App’x 728 (3d Cir. 2007).

In this case, a dispassionate assessment of the Poulis factors weighs heavily in

favor of dismissing this action. At the outset, a consideration of the first Poulisfactor,

the extent of the party's personal responsibility, shows that the delays in this case are

entirely attributable to the plaintiff, who has failed to abide by court orders, and has

otherwise neglected to litigate this case, or respond to defense motions. In particular

we note that dismissal is fully justified when a plaintiff, who has brought a lawsuit,

repeatedly fails to appear for a deposition to test the veracity of the claims which he

has made. Huertas v. City of Philadelphia, 139 F. App'x 444, 446 (3d Cir. 2005). A

plaintiff cannot avoid this basic obligation by citing the fact that he is unrepresented.

Even pro se litigants have an obligation to attend depositions. Huertas v. City of

Philadelphia, 139 F. App'x 444, 446 (3d Cir. 2005). Further, courts have directly

spoken to the type of willful avoidance of litigation responsibilities which has marked

-22-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 22 of 45
Mr. Kamuck’s approach to this lawsuit over the past two years, condemning the

practice of avoiding depositions and generally “playing possum” when instructed to

fulfill their litigation responsibilities. See Fattah v. Beard, 214 F. App'x 230, 233 (3d

Cir. 2007)(dismissal justified due to plaintiff’s propensity to engage in “playing

possum” when it is convenient for him).

Similarly, the second Poulisfactor– the prejudice to the adversary caused by the

failure to abide by court orders–also calls for dismissal of this action. Indeed, this

factor–the prejudice suffered by the party seeking sanctions–is entitled to great weight

and careful consideration. As the United States Court of Appeals for the Third Circuit

has observed:

“Evidence of prejudice to an adversary would bear substantial weight in

support of a dismissal or default judgment.” Adams v. Trustees of N.J.

Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d

Cir.1994) (internal quotation marks and citation omitted). Generally,

prejudice includes “the irretrievable loss of evidence, the inevitable

dimming of witnesses' memories, or the excessive and possibly

irremediable burdens or costs imposed on the opposing party.” Id. at 874

(internal quotation marks and citations omitted). . . . However, prejudice

is not limited to “irremediable” or “irreparable” harm. Id.; see also Ware

v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir.2003); Curtis T. Bedwell

& Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d

Cir.1988). It also includes “the burden imposed by impeding a party's

ability to prepare effectively a full and complete trial strategy.” Ware,

322 F.3d at 222.

Briscoe v. Klaus, 538 F.3d at 259-60.

-23-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 23 of 45
In this case the plaintiff’s failure to litigate this claim or comply with court

orders now wholly frustrates and delays the resolution of this action. In such

instances, the defendants are plainly prejudiced by the plaintiff’s continuing inaction

and dismissal of the case clearly rests in the discretion of the trial judge. Tillio v.

Mendelsohn, 256 F. App’x 509 (3d Cir. 2007) (failure to timely serve pleadings

compels dismissal); Reshard v. Lankenau Hospital, 256 F. App’x 506 (3d Cir. 2007)

(failure to comply with discovery compels dismissal); Azubuko v. Bell National

Organization, 243 F. App’x 728 (3d Cir. 2007) (failure to file amended complaint

prejudices defense and compels dismissal). Similarly, it is well-settled that the costs

and delays caused by a plaintiff’s failure to attend multiple depositors constitutes the

type of prejudice which justifies dismissal of a complaint. Huertas v. City of

Philadelphia, 139 F. App'x 444, 446 (3d Cir. 2005), citing Hicks v. Feeney, 850 F.2d

152, 156 (3d Cir.1988) (finding the costs and time associated with scheduling

unattended depositions was prejudicial). 

When one considers the third Poulis factor-the history of dilatoriness on the

plaintiff’s part–it becomes clear that dismissal of this action is now appropriate. In

this regard, it is clear that “‘[e]xtensive or repeated delay or delinquency constitutes

a history of dilatoriness, such as consistent non-response . . . , or consistent tardiness

in complying with court orders.’ Adams, 29 F.3d at 874.” Briscoe v. Klaus, 538 F.3d

-24-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 24 of 45
at 260-61 (some citations omitted). Here, the plaintiff has failed to respond to defense

motions. The plaintiff has also failed to timely file pleadings, and has not complied

with orders ofthe Court. Further, the plaintiff’s “failure to appear for depositions after

receiving adequate notice and his failure to pursue any protection from the District

Court establishes a pattern of dilatory conduct. See Adams v. Trustees of New Jersey

Brewery Employees' Pension Trust Fund, 29 F.3d 863, 874–75 (3d Cir.1994).”

Huertas v. City of Philadelphia, 139 F. App'x 444, 446 (3d Cir. 2005). Thus, the

plaintiff’s conduct in this case, which entails years of delay and non-compliance with

litigation obligations, now amply displays “[e]xtensive or repeated delay or

delinquency [and conduct which] constitutes a history of dilatoriness, such as

consistent non-response . . . , or consistent tardiness in complying with court orders.”

Adams, 29 F.3d at 874.

The fourth Poulis factor–whether the conduct of the party or the attorney was

willful or in bad faith–also cuts against the plaintiff in this case. In this setting we

must assess whether this conduct reflects mere inadvertence or willful conduct, in that

it involved “strategic,” “intentional or self-serving behavior,” and not mere

negligence. Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund, 29 F.3d 863,

875 (3d Cir.1994). At this juncture, when the plaintiff has failed to comply with

instructions of the Court directing the plaintiff to take specific actions in this case,

-25-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 25 of 45
failed to provide discovery, failed to respond to defense motions, failed to attend

depositions and has violated the local rules, the Court is compelled to conclude that

the plaintiff’s actions are not accidental orinadvertent but instead reflect an intentional

disregard for this case and the Court’s instructions. 

While Poulis also enjoins us to consider a fifth factor, the effectiveness of

sanctions other than dismissal, cases construing Poulis agree that in a situation such

asthis case, where we are confronted by a pro se litigant who will not comply with the

rules or court orders, lesser sanctions may not be an effective alternative. See, e.g.,

Briscoe v. Klaus, 538 F.3d 252, 262-63 (3d Cir. 2008); Emerson, 296 F.3d at 191. 

This case presents such a situation where the plaintiff’s status as a pro se litigant

severely limits the ability of the court to utilize other lesser sanctions to ensure that

this litigation progresses in an orderly fashion. In any event, by entering our prior

orders, repeatedly counseling the plaintiff on his obligations in this case, and giving

Mr. Kamuck many months to come into compliance with our requirements we have

endeavored to use lesser sanctions, but to no avail. The plaintiff still declines to obey

court orders, and otherwise ignores his responsibilities as a litigant. Since lesser

sanctions have been tried, and have failed, only the sanction of dismissal remains

available to the Court.

-26-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 26 of 45
Finally, under Poulis we are cautioned to consider one other factor, the

meritoriousness of the plaintiff’s claims. In our view, however, consideration of this

factor cannot save this particular plaintiff’s claims, since the plaintiff is now wholly

non-compliant with his obligations as a litigant. The plaintiff cannot refuse to address

the merits of his claims, and then assert the untested merits of these claims as grounds

for denying a motion to sanction him. Furthermore, 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. Therefore, the untested merits of the noncompliant plaintiff’s claims, standing alone, cannot prevent imposition of sanctions. 

In any event, as discussed below, on the present record the plaintiff’s claims fail

on their merits, yet another factor which favors dismissal of this action. The legal

flaws inherent in these claims are discussed separately below.

C. Kamuck’s Claims Fail on Their Merits on the Current Record

Finally, and perhaps most fundamentally, on the current record, Mr. Kamuck’s

case fails on its merits. This matter comes before us on a motion for summary

judgment. That motion creates clear and exacting burdens for a plaintiff, like Mr.

Kamuck, burdens which we find that the plaintiff has failed to satisfy.

-27-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 27 of 45
1. Rule 56, Burden of Proof and Persuasion

Rule 56(a) of the Federal Rules of Civil Procedure, provides that “[t]he court

shall grant summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. Rule 56(a). Through summary adjudication a court is empowered to dispose

of those claims that do not present a “genuine dispute as to any material fact,” Fed. R.

Civ. P. 56(a), and for which a trial would be “an empty and unnecessary formality.” 

Univac Dental Co. v. Densely Int’l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615,

at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are

material, and “[only disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of summary judgment.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is

genuine only if there is a sufficient evidentiary basis that would allow a reasonable

fact finder to return a verdict for the non-moving party. Id. at 248-49. 

The moving party has the initial burden of identifying evidence that it believes

shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec.

& Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown

that there is an absence of evidence to support the nonmoving party’s claims, “the nonmoving party must rebut the motion with facts in the record and cannot rest solely on

-28-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 28 of 45
assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv.

Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party “fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden at trial,” summary judgment is appropriate. 

Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving

party provides merely colorable, conclusory, or speculative evidence. Anderson, 477

U.S. at 249. There must be more than a scintilla of evidence supporting the

nonmoving party and more than some metaphysical doubt as to the material facts. Id.

at 252; see also, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). In making this determination, the court must “consider all evidence in the

light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub.

Schs., 486 F.3d 791, 794 (3d Cir. 2007).

Moreover, a party who seeks to resist a summary judgment motion by citing to

disputed material issues of fact must show by competent evidence that such factual

disputes exist. Moreover, a party who seeks to resist a summary judgment motion by

citing to disputed material issues of fact must show by competent evidence that such

factual disputes exist. Further, “only evidence which is admissible at trial may be

considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc.

-29-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 29 of 45
v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995). This rule applies with

particular force to parties who attempt to rely upon hearsay statements to establish

material issues offact which would preclude summary judgment. With respect to such

claims, it is well-settled that: “In this circuit, hearsay statements can be considered on

a motion for summary judgment [only] if they are capable of admission at trial.”

Shelton v. University of Medicine & Dentistry of N.J., 223 F.3d 220, 223, n.2 (3d Cir.

2000), citing Stelwagon Mfg. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1275, n.17

(3d Cir. 1995). In this regard it has been aptly observed that:

It is clear that when considering a motion for summary judgement, a

court may only consider evidence which is admissible at trial, and that a

party can not rely on hearsay evidence when opposing a motion for

summary judgment. See Buttice v. G.D. Searle & Co., 938 F.Supp. 561

(E.D.Mo.1996). Additionally, a party must respond to a hearsay

objection by demonstrating that the material would be admissible at trial

under an exception to hearsay rule, or that the material is not hearsay. 

See Burgess v. Allstate Ins. Co., 334 F.Supp.2d 1351 (N.D.Ga.2003).

The mere possibility that a hearsay statement will be admissible at trial,

does not permit its consideration at the summary judgment stage. Henry

v. Colonial Baking Co. of Dothan, 952 F.Supp. 744 (M.D.Ala.1996).

Bouriez v. Carnegie Mellon Univ., No. 02-2104, 2005 WL 2106582,* 9 (W.D.Pa.

Aug. 26, 2005). Thus, a party may not rely upon inadmissible hearsay assertions to

avoid summary judgment. Therefore, where a party simply presents inadmissible

hearsay declarations in an attempt to establish a disputed material issue of fact, courts

have typically rebuffed these efforts and held instead that summary judgment is

-30-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 30 of 45
appropriate. See, e.g., Synthes v. Globus Medical, Inc., No. 04-1235, 2007 WL

2043184 (E.D.Pa. July 12, 2007); Bouriez v. Carnegie Mellon Univ., No. 02-2104,

2005 WL 2106582,* 9 (W.D.Pa. Aug. 26, 2005); Carpet Group Int’l v. Oriental Rug

Importers Assoc., Inc., 256 F.Supp.2d 249 (D.N.J. 2003).

Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by

. . . denying averments . . . without producing any supporting evidence of the denials.”

Thimons v. PNC Bank, NA, 254 F.App’x 896, 899 (3d Cir. 2007)(citation omitted).

Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse

party may not rest upon mere allegations or denial.” Fireman’s Ins. Co. Of Newark

NJ v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982), see Sunshine Books, Ltd. v.

Temple University, 697 F.2d 90, 96 (3d Cir. 1982).” [A] mere denial is insufficient

to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the

opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458

(3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to

rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v.

Mundy, 762 F.2d 338, 341 (3d Cir. 1985)(citing Ness v. Marshall, 660 F.2d 517, 519

(3d Cir. 1981)).

Finally, a party who seeks to resist a summary judgment motion must also

comply with Local Rule 56.1, which specifically directs a party opposing a motion for

-31-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 31 of 45
summary judgment to submit a “statement of the material facts, responding to the

numbered paragraphs set forth in the statement required [to be filed by the movant],

as to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement required to be

served by the moving party will be deemed to be admitted.” L.R. 56.1. Under the

Local Rules, the failure to follow these instructions and appropriately challenge the

material facts tendered by the defendant means that those facts must be deemed, since:

A failure to file a counter-statement equates to an admission of all the

facts set forth in the movant’s statement. This Local Rule serves several

purposes. First, it is designed to aid the Court in its determination of

whether any genuine issue of material fact is in dispute. Second, it

affixes the burden imposed by Federal Rule of Civil Procedure 56(e), as

recognized in Celotex Corp. v. Catrett, on the nonmoving party ‘to go

beyond the pleadings and by her own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designated specific

facts showing that there is a genuine issue for trial.’ 477 U.S. 317, 324

(1986) (internal quotations omitted) (emphasis added).

Doe v. Winter, No. 04-CV-2170, 2007 U.S. Dist. LEXIS 25517, *2 n.2 (M.D. Pa. Apr.

5, 2007) (parallel citations omitted; court’s emphasis). A party cannot evade these

litigation responsibilities in this regard simply by citing the fact that he is a pro se

litigant. These rules apply with equal force to all parties. See Sanders v. Beard, No.

09-CV-1384, 2010 U.S. Dist. LEXIS, *15 (M.D. Pa. July 20, 2010) (pro se parties “are

not excused from complying with court orders and the local rules of court”); Thomas

-32-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 32 of 45
v. Norris, No. 02-CV-01854, 2006 U.S. Dist. LEXIS 64347, *11 (M.D. Pa. Sept. 8,

2006) (pro se parties must follow the Federal Rules of Civil Procedure). 

2. Kamuck’sResponse to this Summary Judgement Motion

is Legally Insufficient

Judged against these benchmarks, Mr. Kamuck’s response to this summary

judgment motion is legally insufficient on multiple scores. First, Mr. Kamuck has not

contested the carefully documented factual assertions made by the defendants in their

motion, as he is required to do under Local Rule 56.1. Given this wholesale failure

to comply with this Local Rule, we are entitled to deem the defendants’ statement of

facts, which is throughly documented, to be deemed admitted. Ullrich v. U.S. Sec'y

of Veterans Affairs, 457 F. App'x 132, 137 (3d Cir. 2012).

Second, Mr. Kamuck’s apparent effort to fashion a factual dispute through the

submission of unsworn documents which are incorrectly styled as affidavits, is plainly

improper. On this score it has long been recognized that an “unsworn report does not

meet the requirements of Fed.R.Civ.P. 56(e) and ‘is not competent to be considered

on a motion for summary judgment.’ Fowle v. C & C Cola, 868 F.2d 59, 67 (3d

Cir.1989) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598,

26 L.Ed.2d 142 (1970)). “ Jackson v. Eqyptian Navigation Co., 222 F. Supp. 2d 700,

-33-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 33 of 45
709 (E.D. Pa. 2002) aff'd sub nom. Jackson v. Egyptian Navigation Co., 364 F.3d 113

(3d Cir. 2004). As one court has aptly observed in this regard:

Federal Rule of Civil Procedure 56(c)(1)(A) provides that a party

asserting that a fact is genuinely disputed must support that assertion

with particular parts of material in the record, such as an affidavit or

declaration. The United States Court of Appeals for the Third Circuit has

found that unsworn testimony “is not competent to be considered on a

motion for summary judgment.” Fowle v. C & C Cola, 868 F.2d 59, 67

(3d Cir.1989) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n.

17, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1980)); see also Bock v. CVS

Pharmacy, Inc., No. 07–CV–412, 2008 WL 3834266, at *3 (E.D.Pa.

Aug.14, 2008) (refusing to consider an expert report when no sworn

affidavit was provided with the report); Jackson v. Egyptian Navigation

Co., 222 F.Supp.2d 700, 709 (E.D.Pa.2002) (finding that an unsworn

expert report cannot be considered as evidence for a motion for summary

judgment).

Th[us] an unsworn declaration cannot be relied upon to defeat a motion

for summary judgment. Faddish v. General Electric Co., No. 09–70626,

2010 WL 4146108 at *6 (E.D.Pa. Oct. 20, 2010) (Robreno, J.) (citing

Woloszyn v. County of Lawrence, 396 F.3d 314, 323 (3d Cir.2005)

(refusing to consider unsworn declaration of a lay witness)). It is true

that FederalRule ofCivil Procedure 56 was amended effective December

of 2010 to provide that a declaration, that is an unsworn statement

subscribed to under penalty of perjury, can substitute for an affidavit. 

See Fed.R.Civ.P. 56 advisory committee's note; see also Ray v. Pinnacle

Health Hosps., Inc., 416 F.App'x, at 164 n. 8 (3d Cir.2010) (noting that

“unsworn declarations may substitute for sworn affidavits where they are

made under penalty of perjury and otherwise comply with the

requirements of 28 U.S.C § 1746”). However, a declaration that is not

sworn to under penalty of perjury or accompanied by an affidavit is not

proper support in disputing a fact in connection with a motion for

summary judgment. Burrell v. Minnesota Mining Manufacturing Co.,

No. 08–87293, 2011 WL 5458324 (E.D. Pa. June 9, 2011) (Robreno, J.)

(refusing to consider expert reports when no timely sworn affidavits were

-34-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 34 of 45
provided with the reports and the reports were not sworn to under penalty

of perjury).

Deuber v. Asbestos Corp., No. 10 02686, 2012 WL 7761244, at *1

(E.D. Pa. Oct. 15, 2012).

Judged by these settled guideposts, Mr. Kamuck’s declarations simply are not

competent proof of any fact and fail to create a disputed issue of fact which would

defeat summary judgment.

These tardy submissions are flawed in yet another way. After neglecting for

years to fulfill his discovery obligations, and allowing the discovery deadlines in this

case to lapse, it appears that Mr. Kamuck is attempting to belatedly identify some

treating doctors as expert witnesses on both his health, and issues of medical

causation. This he may not do. Rather, the exclusion of such tardy medical expert

testimony on causation is typically the course followed by courts when they are

presented with the tactic employed here, the submission of what purports to be a

delinquent expert designation of treating physicians. Such treating physicians are

routinely precluded from testifying as expert witnesses on causation when their

claimed expert testimony has not been timely disclosed. See e.g., Allen v. Parkland

Sch. Dist., 230 F. App'x 189, 194 (3d Cir. 2007); Brooks v. Union Pac. R. Co., 620

F.3d 896, 900 (8th Cir. 2010); Kachigian v. Berkshire Life Ins. Co. of Am., No.

CIV.A. 09 6217 DEA, 2013 WL 1338288, at *10 (D.N.J. Apr. 1, 2013). 

-35-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 35 of 45
In sum, Mr. Kamuck’s response to this summary judgment motion is so

fundamentally flawed that it is tantamount to no response at all. Nonetheless we have

independently assessed the merits of this summary judgment motion, albeit without

the meaningful assistance of Mr. Kamuck. Having conducted this assessment, we find

that the defendants are entitled to summary judgment in their favor in this case.

3. The Defendants Are Entitled to Summary Judgment

Finally, considered on its merits, and in light of the factual record presently

before the court, it is evident that the defendants are entitled to summary judgment in

their favor on the merits of Mr. Kamuck’s last remaining claims in this lawsuit.

Turning first to Kamuck’s strict liability claim, we do not write upon a blank

slate in assessing this claim. Quite the contrary, a number of cases have examined the

application of the doctrine of strict tort liability in this setting. See e.g., Ely v. Cabot

Oil & Gas Corp., No. 3:09-CV-2284, 2014 WL 4071640 (M.D. Pa. Apr. 23, 2014); 

Tucker v. Southwestern Energy Co., No. 11-44, 2012 WL 528253 (E.D. Ark. Feb. 17,

2012); Berish v. Southwestern Energy Production Co., 763 F.Supp.2d 702 (M.D. Pa.

2011); Fiorentino v. Cabot Oil & Gas Corp., 750 F.Supp.2d 506 (M.D.Pa. 2010). 

From these cases, a legal consensus has emerged. First, it is generally agreed that

Pennsylvania recognizes a strict liability cause of action in tort for abnormally

dangerous and ultra hazardous activities. See Berish v. Southwestern Energy

-36-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 36 of 45
Production Co., 763 F.Supp.2d 702 (M.D. Pa. 2011); Fiorentino v. Cabot Oil & Gas

Corp., 750 F.Supp.2d 506 (M.D.Pa. 2010). In this regard:

[T]he Superior Court of Pennsylvania, in several cases, has adopted

Sections 519 and 520 of the Restatement (Second) of Torts for

determining whether an activity is abnormally dangerous. See, e.g.

Diffenderfer v. Staner, 722 A.2d 1103, 1107 (1998)(adopting §§ 519 and

520 of the Restatement(Second) of Torts); Melso, 576 A.2d at 1002–03

(same); Smith v. Weaver, 445 Pa.Super. 461, 665 A.2d 1215, 1219–20

(1995) (same); Albig, 502 A.2d at 662–63 (same).

Section 519 of the Restatement states, in pertinent part, that “[o]ne who

carries on an abnormally dangerous activity is subject to liability for

harm ... of another resulting from the activity, although he exercised the

utmost care to prevent the harm.” Restatement (Second) of Torts § 519(1)

(1977); see also Diffenderfer, 722 A.2d at 1108 (1998) (applying this

part of the Restatement). Section 520 enumerates a list of factors the

court should consider in determining whether an activity is abnormally

dangerous. These factors are as follows:

(a) existence of a high degree of risk of some harm to the person, land or

chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on;

and

(f) extent to which its value to the community is outweighed by its

dangerous attributes.

Restatement (Second) of Torts §§ 520 (1977).

Banks v. Ashland Oil Co.,127 F.Supp.2d 679, 680-681 (E.D.Pa. 2001).

-37-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 37 of 45
Applying the Restatement’s multi-faceted test, courts agree that the question of

whether a specific activity is abnormally dangerous and, thus, gives rise to strict tort

liability, is a question of law for the court to resolve. See e.g., Tucker v. Southwestern

Energy, Co., No. 11-44, 2-012 WL 528253 (E.D. Ark. Feb. 17, 2012); Berish v.

Southwestern Energy Production Co., 763 F.Supp.2d 702 (M.D. Pa. 2011); Fiorentino

v. Cabot Oil & Gas Corp., 750 F.Supp.2d 506 (M.D.Pa. 2010); Banks v. Ashland Oil

Co.,127 F.Supp.2d 679, 680-681 (E.D.Pa. 2001). However, “since the determination

of whether or not an activity is abnormally dangerous is fact-intensive, courts often

wait until discovery is complete before making this determination. See Norma J.

Fiorentino, et al. v. Cabot Oil & Gas Corp., No. 09–cv–2284, 750 F.Supp.2d 506,

2010 WL 4595524 (M.D.Pa. Nov. 15, 2010).” Berish v. Southwestern Energy

Production Co., 763 F.Supp.2d 702, 705 (M.D.Pa. 2011).

Furthermore, we are mindful of the fact that, as a federal court exercising

diversity jurisdiction, we are obliged to apply the substantive law of Pennsylvania to

this dispute. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d. Cir. 2000). In this

regard, we are constrained to observe that Pennsylvania courts have frequently

rebuffed efforts in other closely-related factual contexts to label various oil and gas

production activities as ultra-hazardous activities giving rise to strict tort liability.

Melso v. Sun Pipe Line Co., 394 Pa. Super. 578, 586, 576 A.2d 999, 1003 (1990)

-38-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 38 of 45
(“The court below erred, in our opinion, in determining that the operation of a

petroleumpipeline under Newtown Crossingwas an abnormallydangerous activity.”);

Smith v. Weaver, 445 Pa. Super. 461, 470, 665 A.2d 1215, 1219 (1995)(underground

storage tanks do not constitute an abnormally dangerous or ultra-hazardous condition

on property). 

Given thislongstanding Pennsylvania case law rejecting the application ofstrict

tort liability to the hydro-carbon extraction industry, the plaintiff essentially invites us

to predict that the Pennsylvania courts will take a step which they have, thus far,

steadfastly refused to take, and characterize oil and gas production activities as ultrahazardous. Furthermore, Kamuck invites usto take this unprecedented step on factual

record which is replete with evidence refuting his position and bereft of proof

supporting his views. Instead the defendants have presented, without contradiction,

evidence and argument that support their position that natural gas drilling activities,

including hydraulic fracturing, do not constitute abnormallydangerous activities under

Pennsylvania law giving rise to strict liability. Following a review of the record and

the parties’ arguments with respect to the six-factor test outlined above that courts use

to determine whether an activity should be subjected to strict liability, and viewing this

issue through the prism of Pennsylvania law, we find that the natural gas drilling

activities challenged in this particular case are not abnormally dangerous, and strict

-39-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 39 of 45
liability should not apply. Our conclusion in this regard is in line with precedent in

this field within Pennsylvania, as courts have routinely declined to find that activities

relating to oil and gas drilling are abnormally dangerous. See Meslo, 576 A.2d at

1003-04 (operation of pipeline in heavily populated urban area not abnormally

dangerous); Smith, 665 A.2d at 1219 (storage of gasoline underground not abnormally

dangerous, since it could be done safely, was common, and valuable to society). This

conclusion is also in accord with legal authority in other jurisdictions, where courts

have reached similar conclusions on the facts presented in those cases. See Indiana

Harbor Belt R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1181 (7th Cir. 1990)

(“Natural gas is both flammable and poisonous, but the operation of a natural gas well

is not an ultrahazardous activity.”); Williams v. Amoco Prod. Co., 734 P.2d 1113,

1123 (Kan. 1987) (“[The] drilling and operation of natural gas wells is not an

abnormally dangerous activity.”) It also follows the prior precedent of this Court,

which has rejected identical strict liability claims. Ely v. Cabot Oil & Gas Corp., No.

3:09-CV-2284, 2014 WL 4071640 (M.D. Pa. Apr. 23, 2014). This claim, therefore,

fails.

Likewise, Kamuck’s private nuisance claimis unavailing on thisfactual record.

Pennsylvania recognizes the “private nuisance” doctrine and “defines a ‘private

nuisance’ as ‘a nontrespassory invasion of another's interest in the private use and

-40-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 40 of 45
enjoyment of land.’” Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 313 (3d

Cir. 1985). In terms of defining what conditions constitute a private nuisance:

[T]he Pennsylvania Supreme Court adopted section 822 of the

Restatement (Second) of Torts as the test to determine the existence of

a private nuisance. That section provides as follows:

§ 822. General Rule

One is subject to liability for a private nuisance if, but only if, his

conduct is a legal cause of an invasion of another's interest in the private

use and enjoyment of land, and the invasion is either (a) intentional and

unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling

liability for negligent or reckless conduct, or for abnormally dangerous

conditions or activities.

The Restatement defines the extent of the invasion necessary to incur liability

as follows:

§ 821F. Significant Harm

There is liability for a nuisance only to those to whom it causes

significant harm, of a kind that would be suffered by a normal person in

the community or by property in normal condition and used for a normal

purpose.

Kembel v. Schlegel, 478 A.2d 11, 14-15 (Pa. Super. Ct. 1984).

By describing a private nuisance in terms of conditions or activities which cause

“significant harm,” Pennsylvania case law limits this doctrine to “harm of importance,

involving more than slight inconvenience or petty annoyance. The law does not

-41-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 41 of 45
concern itself with trifles, and, therefore, there must be a real and appreciable invasion

of the plaintiff's interests before he can have an action for either a public or a private

nuisance .... [I]n the case of a private nuisance, there must be a real and appreciable

interference with the plaintiff's use or enjoyment of his land before he can have a cause

of action.” Id. Pennsylvania courts also recognize that “it is sometimes difficult to

determine whether the invasion is significant. The standard for the determination of

significant character is the standard of normal persons or property in the particular

locality. If normal persons living in the community would regard the invasion in

question as definitely offensive, seriously annoying or intolerable, then the invasion

is significant.” Id.

These legal benchmarks, which call upon the courts to assess whether a

condition is a “slight inconvenience or petty annoyance,” or constitutes something that

is “definitely offensive, seriously annoying or intolerable,” necessarily entail an

assessment that goes beyond the pleadings and involves a factual evaluation of the

impact of a defendant’s actions on others nearby. However, Pennsylvania courts have

found that mere roadside noise and dust do not constitute a private nuisance. See

Karpiak v, Russo, 450 Pa. Super. 471, 676 A.2d 270 (1996)(granting non-suit at trial

on private nuisance based upon dust and road noise claims). Therefore, Mr. Kamuck

cannot establish nuisance tort liability based solely upon his annoyance at traffic

-42-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 42 of 45
outside his home. This is a fatal flaw in the instant case since, despite years of

litigation, Kamuck has presented nothing to support this private nuisance claim

beyond his subjective upset at the volume of road traffic he has experienced

periodically outside his home on a public thoroughfare. Such annoyance typically will

not rise to the level of a nuisance. See Karpiak v, Russo, 450 Pa. Super. 471, 676 A.2d

270 (1996). Further Kamuck’s prior complaints that potentially toxic fracking fluids

have been sprayed, drained, and released on or near his property in ways which have

tainted the ground water and streams on his land, simply have not been established by

any competent proof, despite our efforts to provide Kamuck ample opportunity to

marshal such proof. Therefore, these allegations, which are now unadorned by any

competent evidence, also fail.

Finally, we note that Kamuck’s negligence claims also appear to fail, given the

complete paucity of proof to support those claims. “In order to prevail on a cause of

action in negligence under Pennsylvania law, a plaintiff must establish: (1) a duty or

obligation recognized by the law, requiring the actor to conform to a certain standard

of conduct; (2) a failure to conform to the standard required; (3) a causal connection

between the conduct and the resulting injury; and (4) actual loss or damage resulting

to the interests of another. Morena [v. South Hills Health Sys., 462 A.2d 680, 684 n.

5 (Pa. 1983)] (citing Prosser, Law of Torts § 30, at 143 (4th ed. 1971)).” Kleinknecht

-43-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 43 of 45
v. Gettysburg College, 989 F.2d 1360, 1366 (3d Cir. 1993). Here, due to Mr.

Kamuck’s inaction, and a complete failure of competent proof, we are unable to

identify any duty breached by the defendants; any causal relationship between that

duty and injuries to the plaintiff; and any ascertainable damages resulting from that

injury. Given these failures of proof, and Mr. Kamuck’s broader failings as a litigant,

this claim also now fails as a matter of law and should be dismissed.

IV. Conclusion

In conclusion, we note that it appears that Mr. Kamuck commenced lawsuit in

2011 based upon his subjective belief that he had been wronged. But such subjective

beliefs, standing alone, do not a lawsuit make. Our legal system is premised upon a

creative clash of ideas, where parties are required to prove what they claim, and

subject those claims to the crucible of discovery and litigation. A party, therefore,

may not insist upon making accusations, yet resist legitimate efforts to test those

accusations. Our system of law also requires all parties to comply with court orders

and follow the rules of procedure that are designed as tools to secure the truth. When,

as in this case, one party refuses to follow this course, fails to sustain their claims, and

frustrates the efforts of the court and the opposing party to gather facts, and secure the

truth, these failures can lead to only one end–dismissal of the action.

-44-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 44 of 45
Accordingly, for the foregoing reasons, the defendants’ motion to strike (Doc.

103.) and motion for summary judgment (Doc. 90.) are granted.

An appropriate order follows.

SO ORDERED this 25 day of March 2015.

th

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

-45-

Case 4:11-cv-01425-MCC Document 113 Filed 03/25/15 Page 45 of 45