# Hopersberger v. Acting Commissioner of Social Security

> District Court, M.D. Pennsylvania · August 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10413562

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** August 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TAMARA HOPERSBERGER, : CIV NO. 1:23-CV-879
:
Plaintiff, :
:
v. : (Magistrate Judge Carlson)
:
KILOLO KIJAKAZI, :
Acting Commissioner of Social Security :
:
Defendant :

MEMORANDUM OPINION

I. Factual Background
This is a pro se Social Security appeal filed by Tamara Hopersberger. (Doc.
1). Ms. Hopersberger brought this action on May 26, 2022. (Id.) Appended to Ms.
Hopersberger’s complaint were exhibits which placed the plaintiff on notice that the
Social Security Appeals Council had denied her request for review on February 1,
2023, and she had sixty days from the date of notification of this action in which to
take an appeal of this decision to the district court. (Id., Ex. A). Thus, Ms.
Hopersberger’s complaint explicitly indicated that the plaintiff was on notice that she
needed to file this appeal on or before April 7, 2023. Despite this express notification,
it is undisputed that Ms. Hopersberger waited until May 26, 2023, some six weeks
after the filing deadline, to commence this action challenging the Commissioner’s
1
On these facts, the Commissioner filed a motion to dismiss and brief on July
31, 2023, which argued that Hopersberger’s complaint was untimely under the sixty-
day limitations period that applies to Social Security appeals. (Docs. 10, 11). Mindful

of the fact, that the court record revealed some delays by Hopersberger in taking
necessary actions in this litigation, we entered an order on July 31, 2023, which
advised Hopersberger in clear and precise terms that:
The plaintiff shall file a response to the motion on or before August 18,
2023. Pursuant to Local Rule 7.7 the movant may then file a reply briefs
on or before September 1, 2023. All briefs must conform to the
requirements prescribed by Local Rule 7.8. No further extensions shall
be granted, absent compelling circumstances. The plaintiff, who is
proceeding pro se, is advised that Local Rule 7.6 of the Rules of this
Court imposes an affirmative duty on the plaintiff to respond to motions,
and provides that:

Any party opposing any motion, other than a motion for
summary judgment, shall file a brief in opposition within
fourteen (14) days after service of the movant's brief, or, if
a brief in support of the motion is not required under these
rules, within seven (7) days after service of the motion. Any
party who fails to comply with this rule shall be deemed not
to oppose such motion. Nothing in this rule shall be
construed to limit the authority of the court to grant any
motion before expiration of the prescribed period for filing
a brief in opposition. A brief in opposition to a motion for
summary judgment and LR 56.1 responsive statement,
together with any transcripts, affidavits or other relevant
documentation, shall be filed within twenty-one (21) days
after service of the movant’s brief.

Local Rule 7.6 (emphasis added).
2
It is now well-settled that “Local Rule 7.6 can be applied to grant a
motion to dismiss without analysis of the complaint's sufficiency ‘if a
party fails to comply with the [R]ule after a specific direction to comply
from the court.’ Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991).”
Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL
3703808, *1 (M.D. Pa. Aug.26, 2010). Therefore, a failure to comply
with this direction may result in the motion being deemed unopposed
and granted.

(Doc. 12).

Notwithstanding this clear instruction, the deadline set by the court for
responding to this motion has passed without any action by Hopersberger to respond
to this motion to dismiss. Accordingly, in the absence of any action by the plaintiff
to comply with the court’s orders and prosecute this appeal, this case will be deemed
ripe for resolution.
For the reasons set forth below, this Social Security appeal will be dismissed.
II. Discussion
A. Under The Rules of This Court This Motion to Dismiss
Should Be Deemed Unopposed and Granted.

At the outset, under the Local Rules of this court the plaintiff should be deemed
to concur in this motion, since the plaintiff has failed to timely oppose the motion or
otherwise litigate this case. This procedural default completely frustrates and impedes
efforts to resolve this matter in a timely and fair fashion, and under the rules of this
court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this court
3
Any party opposing any motion, other than a motion for summary
judgment, shall file a brief in opposition within fourteen (14) days after
service of the movant's brief, or, if a brief in support of the motion is not
required under these rules, within seven (7) days after service of the
motion. Any party who fails to comply with this rule shall be deemed not
to oppose such motion. Nothing in this rule shall be construed to limit
the authority of the court to grant any motion before expiration of the
prescribed period for filing a brief in opposition. A brief in opposition
to a motion for summary judgment and LR 56.1 responsive statement,
together with any transcripts, affidavits or other relevant documentation,
shall be filed within twenty-one (21) days after service of the movant=s
brief.

Local Rule 7.6 (emphasis added).
It is now well-settled that “Local Rule 7.6 can be applied to grant a motion to
dismiss without analysis of the complaint's sufficiency ‘if a party fails to comply with
the [R]ule after a specific direction to comply from the court.’” Williams, No. 09-
1704, 2010 WL 3703808, at *1 (quoting Stackhouse, 951 F.2d at 30)). In this case,
the plaintiff has not complied with the local rules, or this Court’s order, by filing a
timely response to this motion. Therefore, these procedural defaults by the plaintiff
compel the court to consider:
[A] basic truth: we must remain mindful of the fact that “the Federal
Rules are meant to be applied in such a way as to promote justice. See
Fed. R. Civ. P. 1. Often that will mean that courts should strive to resolve
cases on their merits whenever possible. However, justice also requires
that the merits of a particular dispute be placed before the court in a
timely fashion ....” McCurdy v. American Bd. of Plastic Surgery, 157
F.3d 191, 197 (3d Cir.1998).

4
With this basic truth in mind, we acknowledge a fundamental guiding tenet of
our legal system. A failure on our part to enforce compliance with the rules, and
impose the sanctions mandated by those rules when the rules are repeatedly breached,

“would actually violate the dual mandate which guides this Court and motivates our
system of justice: ‘that courts should strive to resolve cases on their merits whenever
possible [but that] justice also requires that the merits of a particular dispute be placed
before the court in a timely fashion.’” Id. Therefore, we are obliged to ensure that one

party=s refusal to comply with the rules does not lead to an unjustified prejudice to
those parties who follow the rules.
These basic tenets of fairness apply here. In this case, the plaintiff has failed to

comply with Local Rule 7.6 and has failed to file a timely response to this motion to
dismiss. This failure now compels us to apply the sanction called for under Rule 7.6
and deem the motion unopposed.
B. Dismissal of this Case Is Warranted Under Rule 41.

Rule 41(b) of the Federal Rules of Civil Procedure also authorizes a court to
dismiss a civil action for failure to prosecute, stating that: “If the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to

dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). Decisions regarding
dismissal of actions for failure to prosecute rest in the sound discretion of the court
5
296 F.3d 184, 190 (3d Cir. 2002) (citations omitted). That discretion, however, while
broad is governed by certain factors, commonly referred to as Poulis factors. As the
United States Court of Appeals for the Third Circuit has noted:

To determine whether the District Court abused its discretion [in
dismissing a case for failure to prosecute], we evaluate its balancing of
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
meritoriousness of the claim or defense. Poulis v. State Farm Fire and
Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).

Emerson, 296 F.3d at 190.
In exercising this discretion, “there is no ‘magic formula’ that we apply to
determine whether a District Court has abused its discretion in dismissing for failure
to prosecute.” Lopez v. Cousins, 435 F. App’x 113, 116 (3d Cir. 2011) (quoting
Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore, “[i]n balancing the Poulis
factors, [courts] do not [employ] a . . . ‘mechanical calculation’ to determine whether
a District Court abused its discretion in dismissing a plaintiff’s case.” Briscoe, 538
F.3d at 263 (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992)).
Consistent with this view, it is well settled that “‘no single Poulis factor is
dispositive,’ [and it is] clear that ‘not all of the Poulis factors need be satisfied in
6
222 (3d Cir. 2003); Mindek, 964 F.2d at 1373). Moreover, recognizing the broad
discretion conferred upon the district court in making judgments weighing these six
factors, the Court of Appeals has frequently sustained such dismissal orders where

there has been a pattern of dilatory conduct by a pro se litigant who is not amenable
to any lesser sanction. See, e.g., Emerson, 296 F.3d 184; Tillio v. Mendelsohn, 256
F. App’x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F. App’x 506 (3d
Cir. 2007); Azubuko v. Bell National Organization, 243 F. App’x 728 (3d Cir. 2007).

In this case, a dispassionate assessment of the Poulis factors weighs heavily in
favor of dismissing this action. At the outset, a consideration of the first Poulis
factor—the extent of the party’s personal responsibility—shows that the failure to

respond to this motion is entirely attributable to the plaintiff, who has failed to abide
by court orders or submit a brief in response to this motion to dismiss.
Similarly, the second Poulis factor— the prejudice to the adversary caused by
the failure to abide by court orders—also calls for dismissal of this action. Indeed,

this factor—the prejudice suffered by the party seeking sanctions—is entitled to great
weight and careful consideration. As the Third Circuit has observed:
“Evidence of prejudice to an adversary would bear substantial weight in
support of a dismissal or default judgment.” Adams v. Trustees of N.J.
Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir.
1994) (internal quotation marks and citation omitted). Generally,
prejudice includes “the irretrievable loss of evidence, the inevitable
7
irremediable burdens or costs imposed on the opposing party.” Id. at 874
(internal quotation marks and citations omitted). . . . However, prejudice
is not limited to “irremediable” or “irreparable” harm. Id.; see also Ware
v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003); Curtis T.
Bedwell & Sons, Inc. v. Int’l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d
Cir. 1988). It also includes “the burden imposed by impeding a party’s
ability to prepare effectively a full and complete trial strategy.” Ware,
322 F.3d at 222.

Briscoe, 538 F.3d at 259-60.

In this case, the plaintiff’s failure to litigate this claim, or to comply with court
orders, now wholly frustrates and delays the resolution of this action. In such
instances, the defendant is plainly prejudiced by the plaintiff’s continuing inaction
and dismissal of the case clearly rests in the discretion of the trial judge. Tillio, 256
F. App’x 509 (failure to timely serve pleadings compels dismissal); Reshard, 256 F.
App’x 506 (failure to comply with discovery compels dismissal); Azubuko, 243 F.
App’x 728 (failure to file amended complaint prejudices defense and compels
dismissal).
When one considers the third Poulis factor—the history of dilatoriness on the
plaintiff’s part—it becomes clear that dismissal of this action is now appropriate. In
this regard, it is clear that “‘[e]xtensive or repeated delay or delinquency constitutes
a history of dilatoriness, such as consistent non-response . . . , or consistent tardiness
in complying with court orders.’” Briscoe, 538 F.3d at 260-61 (quoting Adams, 29
F.3d at 874) (some citations omitted). Here, it appears that the plaintiff has filed an
8
was brought to her attention, the plaintiff then failed to comply with court orders or
file a brief in response to the Commissioner’s motion to dismiss, as she had been
directed to do. Thus, the plaintiff’s conduct displays “[e]xtensive or repeated delay

or delinquency [and conduct which] constitutes a history of dilatoriness, such as
consistent non-response . . . , or consistent tardiness in complying with court orders.”
Adams, 29 F.3d at 874.
The fourth Poulis factor—whether the conduct of the party or the attorney was

willful or in bad faith—also cuts against the plaintiff in this case. In this setting, we
must assess whether this conduct reflects mere inadvertence or willful conduct, in
that it involved “strategic,” “intentional or self-serving behavior,” and not mere

negligence. Adams, 29 F.3d at 875. At this juncture, when the plaintiff has failed to
comply with the specific instructions of the court, the court is compelled to conclude
that the plaintiff’s actions are not isolated, accidental, or inadvertent but instead
reflect an ongoing disregard for this case and the court’s instructions.

While Poulis also enjoins us to consider a fifth factor—the effectiveness of
sanctions other than dismissal—cases construing Poulis agree that in a situation such
as this case, where we are confronted by a pro se litigant who will not comply with

the rules or court orders, lesser sanctions may not be an effective alternative. See,
e.g., Briscoe, 538 F.3d at 262-63; Emerson, 296 F.3d at 191. This case presents such
9
the court to utilize other lesser sanctions to ensure that this litigation progresses in an
orderly fashion. In any event, by entering our prior orders and counseling the plaintiff
on her obligations in this case, we have endeavored to use lesser sanctions, but to no

avail. The plaintiff still ignores her responsibilities as a litigant. Since lesser sanctions
have been tried, and have failed, only the sanction of dismissal remains available to
the Court.
Finally, under Poulis, we are cautioned to consider one other factor, the

meritoriousness of the plaintiff’s claims. In our view, however, consideration of this
factor cannot save this particular plaintiff’s claims since the plaintiff is now wholly
non-compliant with the court’s instructions. The plaintiff cannot refuse to comply

with court orders which are necessary to allow resolution of the merits of his claims,
and then assert the untested merits of these claims as grounds for declining to dismiss
the case. Furthermore, it is well settled that “‘no single Poulis factor is dispositive,’
[and it is] clear that ‘not all of the Poulis factors need be satisfied in order to dismiss

a complaint.’” Briscoe, 538 F.3d at 263 (quoting Ware, 322 F.3d at 222; Mindek, 964
F.2d at 1373). Therefore, the untested merits of the non-compliant plaintiff’s claims,
standing alone, cannot prevent dismissal of a case for failure to prosecute.

10
In any event we note that it appears on the face of the plaintiff’s pleadings that
her Social Security appeal is time-barred. In this regard, as we have previously

observed:
42 U.S.C. § 405(g) prescribes the period within which one must file a
complaint seeking judicial review of an administrative decision denying
social security benefits, and provides that: “Any individual, after any
final decision of the Commissioner of Social Security made after a
hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of Social
Security may allow.” 42 U.S.C. § 405(g).

It is well-settled that this 60–day filing requirement is not a jurisdictional
limit on the power of the court, “but rather constitutes a period of
limitations.” Bowen v. City of New York, 476 U.S. 467, 478, 106 S.Ct.
2022, 90 L.Ed.2d 462 (1986). Nonetheless because the limitations
period is a condition of the waiver of sovereign immunity, and serves a
salutary purpose in ensuring timely submission of claims, this 60–day
limitations period “must be strictly construed.” Bowen v. City of New
York, 476 U.S. 467, 479, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986).
However, as a statute of limitations, the 60–days limitations period
prescribed by § 405(g) is also subject to equitable tolling. Indeed, as the
Supreme Court has observed: “application of a ‘traditional equitable
tolling principle’ to the 60–day requirement of § 405(g) is fully
‘consistent with the overall congressional purpose’ and is ‘nowhere
eschewed by Congress.’ “ Bowen v. City of New York, 476 U.S. 467,
480, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986).

Adopting these benchmarks courts have held that equitable tolling
should be rare and “equitable tolling is ‘to be applied sparingly’ “
Kramer v. Comm'r of Soc. Sec., 461 F. App'x 167, 169 (3d Cir. 2012),
but have agreed that equitable tolling “may be appropriate: ‘(1) where
the defendant has actively misled the plaintiff respecting the plaintiff's
cause of action; (2) where the plaintiff in some extraordinary way has
been prevented from asserting his or her rights; or (3) where the plaintiff
11
has timely asserted his or her rights mistakenly in the wrong forum.’ “
Cardyn v. Comm'r of Soc. Sec., 66 F. App'x 394, 397 (3d Cir. 2003)
quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1387 (3d Cir. 1994). With respect to equitable tolling claims made in
this setting, it is also clear that: “plaintiff bears the burden of establishing
that equitable tolling applies. Courtney v. La Salle Univ., 124 F.3d 499,
505 (3d Cir.1997).” Frazier v. Colvin, No. CIV.A. 13 28, 2013 WL
1891351, at *2 (W.D. Pa. May 6, 2013).

Pearson v. Colvin, No. 1:14-CV-1400, 2014 WL 7359190, at *3 (M.D. Pa. Dec. 23,
2014).
Applying these legal benchmarks to the facts of this case—which are
uncontested by Hopersberger—we find that this appeal should be dismissed as time-
barred. It is entirely undisputed that the Social Security Appeals Council denied
review of the plaintiff’s case on February 1, 2023. This event triggered the plaintiff’s
duty to file this action within sixty days and we know from an exhibit which
Hopersberger attaches to her complaint that she was specifically advised that she
needed to file this complaint with the district court by April 7, 2023, if she wished to
further challenge this disability determination. (Doc. 1, Ex. A). Notwithstanding
these clear instructions, Hopersberger did not file her complaint in a timely fashion.
Instead, she delayed some six weeks past this deadline before acting.
Moreover, having apparently defaulted on her obligation to timely filed her

complaint Hopersberger now has engaged in a second default by failing to respond
to the Commissioner’s motion to dismiss. In the absence of any response from the

12
plaintiff, we cannot say that the plaintiff has carried her burden of proving
extraordinary circumstances which would justify tolling this limitations period.

Simply put, there is no indication that the Commissioner actively misled the plaintiff
respecting the plaintiff's cause of action; that the plaintiff in some extraordinary way
has been prevented from asserting her rights; or that Hopersberger timely asserted

her rights mistakenly in the wrong forum. Quite the contrary, the exhibit attached to
the plaintiff’s complaint makes it clear that Hopersberger was specifically informed
regarding what action she needed to take to further challenge this disability
determination; when she needed to act; and where she needed to file her appeal. Given

this immutable evidence, there simply are no grounds for equitable tolling of this
limitations period and a straightforward application of § 405(g)’s sixty-day statute of
limitations bars this appeal.

III. Conclusion
Accordingly, for the foregoing reasons, this case will be DISMISSED as time-
barred and for failure to prosecute.
An appropriate order follows.

S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

DATED: August 22, 2023

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413562. Public record. Not legal advice.