EFTA Document EFTA01363328

Page 8 2012 U.S. Dist. LEXIS 93633, * 747 F.2d 863, 868 (3d Cir. 1984) [hereinafter Poulis]. In Poulis, the Third Circuit stated that a district court rill must balance the following factors: 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 mefitoriousness of the claim or defense. Id. (explaining that "dismissal is a drastic sanction and should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff')(alteration in original); see also In re E Toys Inc., 263 Fed. Appx. 235, 237 (3d Cir. 2008) (affirming the district court's dismissal of a bankruptcy appeal for failure to prosecute upon consideration of the Poulis factors). 1 (I-IN2) 'An appeal from a judgment, order, or decree of a bankruptcy judge to a district court or bankruptcy appellate panel ... shall be taken by filing a notice of appeal with the clerk within the time allowed by Rule 8002. An appellant's failure to take any step other than timely filing a notice of appeal Ni does not affect the validity of the appeal, but is ground only for such action as the district court or bankruptcy appellate panel deems appropriate, which may include dismissal of the appeal... 1 FED. R. BANKR. P. 8CO1(a) (2011). [HN3J "Not all of the() Poulis factors need be met for a district court to find dismissal is warranted." Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). However, courts must consider and balance all six Poulis factors before dismissing a case with prejudice, and all doubts must be resolved in favor of an adjudication on the merits. See $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003) ("[W]e have always required consideration and balancing of all six of the factors, and have recommended the resolution of any doubts in favor of adjudication on the merits."); see also Bjorgung, 197 Fed. Appx. at 125-26 ("Although '[n]ot all of the Poulis factors need be satisfied in order to dismiss a complaint' they must all be considered") (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)). It ANALYSIS In In re Richardson Industrial Contractors, Inc., 189 Fed. Appx. 93 (3d Cir. 2006), the United States Court of Appeals for the Third Circuit addressed [* 6] the relevant factors that a district court must consider before dismissing a bankruptcy appeal for failure to prosecute. In that case, the district court dismissed a creditor's appeal with prejudice for failure to comply with the mandates of the Federal Rules of Bankruptcy Procedure. In so doing, the district court considered only two of the six Poulis factors: the creditor's bad faith in requesting a second extension of time in which to file his brief and the ineffectiveness of alternative sanctions. The creditor appealed the district court's decision. On appeal, the Third Circuit found that, in addition to not considering all six Poulis factors, the district court's discussion of two factors was limited and did not set out the basis for its conclusions in such a way to permit meaningful review of its decision. In reviewing similar cases in other circuits, the Richardson court noted that [HN4)" '[d]ismissal typically occurs in cases showing consistently dilatory conduct or the complete failure to take any steps other than the mere filing of a notice of appeal.' " Richardson, 189 For internal use only CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0053286 CONFIDENTIAL SDNY_GM_00199470 EFTA01363328