explaining that a plaintiff’s intent to stand on his complaint may be inferred from inaction after issuance of an order directing him to take action to cure a defective complaint
How later courts described this case
- explaining that a plaintiff’s intent to stand on his complaint may be inferred from inaction after issuance of an order directing him to take action to cure a defective complaint
- “[T]he Court need not engage in an analysis of the six Poulis factors in cases where a party willfully abandons her case or otherwise makes adjudication of the matter impossible.” (citing cases)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KYLE RICHARD ENTY, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 24-CV-4888
:
TAX REVIEW BOARD, et al., :
Defendants. :
ORDER
AND NOW, this 2nd day of October, 2024, upon consideration of Plaintiff Kyle Richard
Enty’s Motion to Proceed In Forma Pauperis (ECF No. 1), and Complaint (ECF No. 2) it is
ORDERED that:
1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.
2. The Complaint is DEEMED filed.
3. For the reasons stated in the Court’s Memorandum, all claims against the Tax
Review Board of the City of Philadelphia, “Revenue Customer Service,” and “Real Estate
Taxes” are DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to terminate
the Tax Review Board of the City of Philadelphia, “Revenue Customer Service,” and “Real
Estate Taxes” as Defendants.
4. All claims for injunctive relief are DISMISSED WITH PREJUDICE.
5. The balance of the Complaint is DISMISSED WITHOUT PREJUDICE for the
reasons stated in the Court’s Memorandum.
6. Mr. Enty may file an amended complaint within thirty (30) days of the date of this
Order. Any amended complaint must identify all defendants in the caption of the amended
complaint in addition to identifying them in the body of the amended complaint and shall state
the basis for Enty’s claims against each defendant. The amended complaint shall be a complete
document that does not rely on the initial Complaint or other papers filed in this case to state a
claim. When drafting his amended complaint, Enty should be mindful of the Court’s reasons for
dismissing the claims in his initial Complaint as explained in the Court’s Memorandum. Upon
the filing of an amended complaint, the Clerk shall not make service until so ORDERED by the
Court.
7. The Clerk of Court is DIRECTED to send Enty a blank copy of this Court’s
current standard form to be used by a self-represented litigant filing a civil action bearing the
above-captioned civil action number. Enty may use this form to file his amended complaint if he
chooses to do so.
8. If Enty does not wish to amend his Complaint and instead intends to stand on his
Complaint as originally pled, he may file a notice with the Court within thirty (30) days of the
date of this Order stating that intent, at which time the Court will issue a final order dismissing
the case. Any such notice should be titled “Notice to Stand on Complaint,” and shall include the
civil action number for this case. See Weber v. McGrogan, 939 F.3d 232 (3d Cir. 2019) (“If the
plaintiff does not desire to amend, he may file an appropriate notice with the district court
asserting his intent to stand on the complaint, at which time an order to dismiss the action would
be appropriate.” (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n.1 (3d Cir. 1976))); In re
Westinghouse Sec. Litig., 90 F.3d 696, 703–04 (3d Cir. 1996) (holding “that the district court did
not abuse its discretion when it dismissed with prejudice the otherwise viable claims . . .
following plaintiffs’ decision not to replead those claims” when the district court “expressly
warned plaintiffs that failure to replead the remaining claims . . . would result in the dismissal of
those claims”).
9. If Enty fails to file any response to this Order, the Court will conclude that Enty
intends to stand on his Complaint and will issue a final order dismissing this case.1 See Weber,
939 F.3d at 239-40 (explaining that a plaintiff’s intent to stand on his complaint may be inferred
from inaction after issuance of an order directing him to take action to cure a defective
complaint).
BY THE COURT:
/s/ Gerald Austin McHugh
GERALD A. MCHUGH, J.
1 The six-factor test announced in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d
Cir. 1984), is inapplicable to dismissal orders based on a plaintiff’s intention to stand on her
complaint. See Weber, 939 F.3d at 241 & n.11 (treating the “stand on the complaint” doctrine as
distinct from dismissals under Federal Rule of Civil Procedure 41(b) for failure to comply with a
court order, which require assessment of the Poulis factors); see also Elansari v. Altria, 799 F.
App’x 107, 108 n.1 (3d Cir. 2020) (per curiam). Indeed, an analysis under Poulis is not required
when a plaintiff willfully abandons the case or makes adjudication impossible, as would be the
case when a plaintiff opts not to amend her complaint, leaving the case without an operative
pleading. See Dickens v. Danberg, 700 F. App’x 116, 118 (3d Cir. 2017) (per curiam) (“Where
a plaintiff’s conduct clearly indicates that he willfully intends to abandon the case, or where the
plaintiff's behavior is so contumacious as to make adjudication of the case impossible, a
balancing of the Poulis factors is not necessary.”); Baker v. Accounts Receivables Mgmt., Inc.,
292 F.R.D. 171, 175 (D.N.J. 2013) (“[T]he Court need not engage in an analysis of the
six Poulis factors in cases where a party willfully abandons her case or otherwise makes
adjudication of the matter impossible.” (citing cases)).