2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-26-2002

Admark Jewelry Corp v. UPS

Precedential or Non-Precedential:

Docket 01-2221

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Recommended Citation

"Admark Jewelry Corp v. UPS" (2002). 2002 Decisions. Paper 210.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 01-2221 

 ___________ 

 ADMARK JEWELRY CORPORATION, 

 Appellant 

 v. 

 

 UNITED PARCEL SERVICE 

 _______________________________________________ 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 D.C. Civil Action No. 99-cv-02227 

 (Honorable Ronald L. Buckwalter) 

 ___________________ 

 Submitted Pursuant to Third Circuit LAR 34.1(a) 

 March 7, 2002 

 Before: SCIRICA and COWEN, Circuit Judges, and 

 RESTANI, Judge, United States Court of International Trade* 

 (Filed March 26, 2002) 

 

 *The Honorable Jane A. Restani, Judge, United States Court of International Trade, 

sitting by designation. 

 __________________ 

 OPINION OF THE COURT 

 __________________ 

SCIRICA, Circuit Judge. 

 Admark Jewelry Corporation filed suit against United Parcel Service, Inc. (UPS) 

in the United States District Court for the Eastern District of Pennsylvania, alleging 

negligence and breach of contract for the loss or misdelivery by UPS of over 6,000 

packages of jewelry. On the date of trial, Admark refused to prosecute the case. The 

District Court granted UPS’ motion to dismiss the case for failure to prosecute under 

Fed.R.Civ.P. 41(b). 

 I. 

 We review an order of dismissal under Fed.R.Civ.P. 41(b) for abuse of discretion. 

Marshall v. Sielaff, 492 F.2d 917, 918 (3d Cir. 1974). Fed.R.Civ.P. 41(b) provides that 

"[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of 

court, a defendant may move for dismissal of any action or of any claim against him . . . . 
[A] dismissal under this subdivision . . . operates as an adjudication on the merits." 

We have stated 

 the authority to dismiss for lack of prosecution, both on defendants’ motion 

 and sua sponte, is an inherent . . . control necessarily vested in courts to 

 manage their own affairs so as to achieve the orderly and expeditious 

 disposition of cases . . . . No precise rule can be laid down as to what 

 circumstances justify a dismissal for failure to prosecute, but the procedural 

 history of each case must be examined in order to make that determination. 

 The power of the court to prevent undue delays and to achieve the orderly 

 disposition of cases must be weighed against the policy of law which 

 favors disposition of litigation on its merits. 

Marshall, 492 F.2d at 918 (citations and quotations omitted). 

 II. 

 

 After carefully considering the history of this litigation, it is clear the District 

Court did not abuse its discretion. This case was pending for almost two years before the 

District Court. During that time, Admark engaged in dilatory conduct. The District 

Court was forced to warn Admark to comply with pretrial discovery "or else risk the 

dismissal of [its] claims." On April 23, 2001, one week before trial, Admark’s president 

Phillip Kramer refused to proceed with his deposition unless Admark’s counsel was 

permitted to withdraw from the case. In a telephone conference with the parties, the 

District Judge repeatedly told Admark if he allowed its counsel to withdraw, the court 

would not grant a continuance of the trial date. 

 Despite the District Court’s repeated admonitions that it would not grant a trial 

continuance, Admark filed an Emergency Motion for Continuance on April 27, 2001, 

which was denied the same day. Nonetheless, on April 30, 2001, the day the trial was 

scheduled to begin, Admark appeared in court, represented by new counsel, who 

informed the court he could not proceed unless a continuance were granted. The District 

Court denied this request and directed Admark to proceed with its case. When it refused 

to do so, the District Court granted UPS’ motion to dismiss the case for failure to 

prosecute under Fed.R.Civ.P. 41(b). We see no abuse of discretion. 

 III. 

 For the foregoing reasons, the order of the District Court dismissing the action for 

want of prosecution will be affirmed. 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Anthony J. Scirica 

 Circuit Judge