NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 16-1971

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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. 2-13-cv-05693)

District Judge: Honorable Nitza I. Quinones Alejandro

____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 8, 2016

Before: FISHER, KRAUSE and GREENBERG, Circuit Judges.

(Filed: December 13, 2016)

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OPINION*

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 * 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 held 

that a district court must consider six factors1 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 Pennsylvania 

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 that 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 intervene, 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 Cressman 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 defense.” Poulis, 747 F.2d at 868 (emphasis removed).

2 31 U.S.C. § 3729 et seq.
3

Cressman filed his initial disclosures eight days after that second order was filed. 

That same day, the Defendant moved for sanctions, requesting that Cressman’s complaint 

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 prosecute.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 appeal followed.

II.

The District Court had subject matter jurisdiction over this case pursuant to 28 

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 prosecute . . . for an abuse of 

 3 J.A. 218A.

4 J.A. 234A.

5 J.A. 230A-31A.

6 J.A. 284A.
4

discretion, but the district court must have considered less severe sanctions.”7 “In 

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 dismissing this case, and because a balancing of 

the Poulis factors favors reinstatement of the case for adjudication on the merits. Because 

we agree with Cressman’s first argument, 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 “recognized that 

‘dismissals with prejudice . . . 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 “consideration 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 Poulis, 747 

F.2d at 867). 10 Id.
5

of all six of the factors” is “required.”11 We 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 analysis”12 and grants a dismissal. 

Applying those principles here, we conclude that the District Court abused its 

discretion for two reasons. First, the record does not show any evidence that the District 

Court considered the Poulis factors before dismissing this case. Indeed, 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 District 

Court’s dismissal of twelve cases for the Plaintiffs’ non-compliance with an 

administrative order and indicated that our review of a dismissal 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

factors,” it “clearly considered” their applicability.14 Unlike 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 courts 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 court had previously “discuss[ed] the Poulis factors” and the parties 

“addressed them fully in their briefs,” we have no basis to infer that the District 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 remand 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.