NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 16

- 1971

____________ UNITED STATES OF AMERICA EX REL GARY CRESSMAN, Appellant

v. SOLID WASTE SERVICES, INC., T/D/B/A J.P. Mascaro & Sons

____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2

- 1 3

- cv
- 0 5693 ) District Judge: Honorable Nitza I. Quinones Alejandro

____________ Submitted Pursuant t o Third Circuit L

. A

. R

. 34.1(a) December 8, 2016
Before: FISHER, KRAUSE and GREENBERG , Circuit Judges

. (Filed: December 13, 2016 )

____________ OPINION *

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 FISHER, Circuit Judge

. In Poulis v. State Farm Fire & Casualty Co. , 747 F.2d 863 (3d Cir. 1984), we h eld
that a district court must consider six factors 1 before it may dismiss a case as a sanction
before trial on the merits . Relying on Poulis , Appellant Gary Cressman appeals from the
order of the United States District Court for the Eastern District of Pe nnsylvania dismissing his qui tam action as a sanction for failure to prosecute. For the reasons that follow, we will vacate the dismissal and remand this case for further proceedings.
I. On September 30, 2013, Cressman filed a qui tam action alleging tha t the Defendant, Solid Waste Services, Inc., violated the False Claims Act (“FCA”) 2 by falsely certifying that it was disposing of leached water in compliance with government regulations. The government declined to i ntervene, and, after denying a motion to dismiss the complaint , the District Court ordered the parties to file their initial disclosures within 14 days. When Cressman failed to do so , the Defendant filed a motion to compel and for sanctions. Ruling on that motion, the District Court ordered Cres sman to produce his
disclosures within seven days.

1 The factors are: “(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 d efense.” Poulis, 747 F.2d at 868 (emphasis removed ). 2 31 U.S.C. § 3729 et seq

.3 Cressman filed his initial disclosures eight d ays after that second order was filed

. That same day , the Defendant moved for sanctions , requesting that Cressman’s c omplaint be dismissed with prejudice for his failure to produce his initial disclosures in a timely
fashion

. Cressman failed to respond and the Court ordered Cressman to show cause why
the matter should not be dismissed

. In that order, the District Court indicated that “[failure to respond] shall be deemed a failure to prosecute and comply with this Court’s Orders, and will result in dismissal of this action.” 3
Cressman failed to respond again and on March 21, 2016, the District Court
dismissed Cressman’s suit with prejudice for failure to prosecu te. 4 Later that day, Cressman moved the District Court to reconsider, vacate, or rescind that dismissal
because the District Court did not balance the six Poulis factors. 5 The Defendant responded, arguing that the Poulis factors made dismissal appropriate in this case

. On March 28, 2016, the District Court entered a single

- sentence order denying Cressman’s
motion to vacate. 6 This a ppeal followed

. II. The District Court had subject matter jurisdict ion over this case pursuant to 2 8 U.S.C. § 1331 and 31 U.S.C. § 3730. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. “ We review a dismissal for failure to prose cute

. . . for an abuse of

3 J.A. 218A. 4 J.A. 234A. 5 J.A. 230A

- 31A. 6 J.A. 284 A

.4 discretion , but the district court must have considered less severe sanctions

. ” 7 “I n determining whether a District Court has abused its discretion . . . we will be guided by
the manner in which the court balanced the Poulis factors. ” 8
III. On appeal, Cressman argues that the District Court abused its discretion because it failed to weigh the Poulis factors before dism issing this case, and because a balancing of
the Poulis factors favors reinstatement of the case for adjudication on the merits. B ecause we agree with Cressman’s first argu ment, we will not consider the second , and we will
vacate and remand for the reasons stated below.
A. Although “[b]oth the Federal Rules of Civil Procedure and a court’s inherent authority to control its docket empower a district court to dismiss a case as a sanction for failure to follow procedural rules or court orders,” we have long “r ecognized that

‘ dismissals with prejud ice . . . are drastic sanctions

. ’ ” 9 Accordingly , “in Poulis we enumerated six factors a district court must consider before it dismisses a case pursuant to such authority.” 10 Since Poulis , we have explained that “consi deration and balancing

7 Jewelcor Inc. v. Asia Commercial Co., 11 F.3d 394, 397 (3d Cir. 1993). 8 Hicks v. Feeney , 850 F.2d 152, 156 (3d Cir. 1988) (quoting Ali v. Sims , 788 F.2d 954, 957 (3d Cir. 1986)). 9 Knoll v. City of Allentown, 707 F.3d 406, 409 (3d Cir. 2013) (quoting Po ulis , 747 F.2d at 867)

. 10 Id

.5 of all six of the factors” is “ required. ” 11 W e have added that “it is imperative that the District Court have a full understanding of the surrounding facts and circumstances pertinent to the Poulis factors before it undertakes its ana lysis ” 12 and grants a dismissal. Applying those principles here, we conclude that the District C ourt abused its discretion for two reasons. First, the record does not show any evide nce that the District
Court considered the Poulis factors before dismissing this case. I ndeed, far from weighing them , the District Court did not mention Poulis at all

. Second , contrary to the Defendant’s claims otherwise , our decision in Asbestos
Products does not dictate a different conclusion. In that case, we affirmed the Di strict
Court’s dismissal of twelve cases for the Plaintiffs’ non
- compliance with a n admi ni strative order and indicated that our review of a dis missal should be “more
measured ” when a plaintiff is given “ an opportunity to present arguments against
dismissal .” 13 Nonetheless, in affirming the District Court’s dismissal with prejudice , “we ha[d] little difficulty concluding that the District Court considered and weighed the [ Poulis ] factors ” because, “[w]hile [ the District Court ] did not explicitly weigh all the
fa ctors,” it “clearly considered ” th eir applicability. 14 U nlike in Asbestos Products , where

11 United States v. $8,221,877.16 in U.S. Currency , 330 F.3d 141, 162 (3d Cir. 2003) (emphasis in original); see also In re Asbestos Prods

. Liab

. Litig

. (No. VI) , 718 F.3d 236, 246 (3d Cir. 2013) (“We have required district co urts to consider these factors because dismissal with prejudice is, undeniably, a drastic sanction.”). 12 Briscoe v. Klaus , 538 F.3d 252, 258 (3d Cir. 2008). 13 In re Asbestos Prods. , 718 F.3d at 247

- 48. 14 Id

. at 248.6 the district c ourt had previously “ discuss[ed] the Poulis factors” and the parties

“ addressed the m fully in their briefs,” we have no basis to infer that the Distri ct Court
considered their applicability here

. 15
IV. Accordingly, because it was an abuse of discretion for the District Court to dismiss Cressman’s complaint without considering the Poulis factors , we will vacate the District
Court’s dismissal order and rem and this case to the trial court for further proceedings

. 16

15 Id. 16 Since this error alone warrants remand, we take no position on whether dismissal is an appropriate sanction upon a proper balancing of the Poulis factors

— our holding is simply that the District Court must consider these factors before this action is dismissed.