GLD-389 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-2194

___________

VICTORIA L. BAILEY,

Appellant

v.

SECRETARY VETERANS ADMINISTRATION; SUSAN R. SILVER; THERESA 

BUGGEY; THOMAS LAWSTOKA; JOSEPH TOMASELLI

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. Civil No. 2-11-cv-05325)

District Judge: Honorable Michael M. Baylson

____________________________________

Submitted for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

August 15, 2013

Before: FUENTES, FISHER and VANASKIE, Circuit Judges

(Opinion filed: August 22, 2013 )

_________

OPINION

_________

PER CURIAM

Victoria L. Bailey appeals from the judgment entered by the District Court, 

dismissing her complaint with prejudice for failure to prosecute. We will summarily 

affirm because no substantial question is presented by this appeal.
2

I.

In August 2011, Bailey filed, through counsel, an employment discrimination 

complaint against the Secretary of the Department of Veterans Affairs and two agency

employees. Thereafter, counsel was permitted to withdraw, and Bailey pursued her 

claims pro se, filing an amended complaint that named two additional agency employees

as defendants. The defendants moved to dismiss Bailey’s amended complaint. Bailey did 

not file a response and the District Court granted the motion. Bailey submitted a 

document (essentially a second amended complaint) that was filed as a motion for 

reconsideration. The District Court granted that motion in part, directed that Bailey’s 

claims as pleaded in the second amended complaint would proceed as to the Secretary 

only, and further directed that discovery be completed by November 19, 2012.

1

Thereafter, Bailey repeatedly failed to respond to requests for discovery and failed to 

appear for a deposition after it was rescheduled twice at her request.

2 As a result, the 

Secretary filed a motion to dismiss for failure to prosecute. Yet again, Bailey failed to 

respond, and the District Court granted the motion.

Bailey timely appealed. The parties were advised that the Court would consider 

summary action and were provided an opportunity for response. The Secretary responded 

 

1

The District Court agreed with the government that the remaining defendants were not 

proper parties.

2 Discovery was to be completed by November 19, 2012. Unsuccessful attempts were 

made to secure her responses to interrogatories on July 23, 2012, September 5, 2012, 

September 21, 2012, October 4, 2012, October 22, 2012, and November 5, 2012. The 

deposition was scheduled for October 4, 2012, and then rescheduled for October 18, 

2012, and November 8, 2012.
3

with a motion for summary affirmance. Bailey has filed a motion seeking appointment of 

counsel and a stay of this appeal pending such appointment.

II.3

We review a district court’s order dismissing an action for failure to prosecute 

under Federal Rule of Civil Procedure 41(b) for an abuse of discretion. See Briscoe v. 

Klaus, 538 F.3d 252, 257 (3d Cir. 2008). Generally, a court must consider several factors 

before deciding whether to grant a defendant’s motion to dismiss for failure to prosecute: 

(1) the extent of the party's personal responsibility; (2) the prejudice to the opposing party

caused by the failure to meet scheduling orders and respond to discovery; (3) any history 

of dilatoriness; (4) whether the conduct of the party or the attorney has been willful or in 

bad faith; (5) whether effective alternative sanctions are available; and (6) the merit of the 

claim or the defense. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d 

Cir. 1984). There is no “magic formula” or “mechanical calculation” for balancing the 

Poulis factors, and a District Court need not find all of the factors satisfied in order to 

dismiss a complaint. Briscoe, 538 at 263. 

Bailey was afforded ample opportunity to proceed with her case. Her claims 

against the Secretary were reinstated. She was provided considerable time and numerous 

opportunities to participate in the discovery process. Bailey repeatedly refused those 

opportunities, causing substantial prejudice to her adversary. She offered no response to 

the Secretary’s motion to dismiss for failure to prosecute. Her only explanation appears in 

her motion pending before this Court, in which she states that she did not discuss or agree 
4

to any depositions or interrogatories concerning this case. Although dismissal is a harsh 

remedy, Bailey bears personal responsibility for her unexplained dilatoriness. Under 

these circumstances, dismissal for failure to prosecute was appropriate.

III.

For the foregoing reasons, we will grant the Secretary’s motion and summarily 

affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We deny 

Bailey’s motion to appoint counsel and stay the appeal.

 

3 We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.