ALD-045                                            NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-3386
                                       ___________

                                 HECTOR L. HUERTAS,
                                                 Appellant

                                             v.

         U.S. DEPARTMENT OF EDUCATION; DIANE SPADONI, Director,
    Customer Care Group. Borrower Services, in her official and individual capacity;
     PREMIER CREDIT OF NORTH AMERICA, LLC; COLLECTCO, INC. d/b/a
                         Collection Company of America
                    ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 08-cv-03959)
                      District Judge: Honorable Robert B. Kugler
                      ____________________________________

                        Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 18, 2010
              Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                                (Filed December 13, 2010)
                                        _________

                               OPINION OF THE COURT
                                     _________

PER CURIAM.

       Hector L. Huertas sued the defendants for alleged violations of the Fair Debt

Collection Practices Act relating to their efforts to collect on his student loan debt. One
defendant, Collectco, Inc., filed a motion for judgment on the pleadings, which the

District Court granted. Ultimately, on July 13, 2010, the action was dismissed with

prejudice and closed when the District Court granted the remaining defendants’ motions

to dismiss Huertas’s suit under Rule 37 of the Federal Rules of Civil Procedure for his

failure to obey court orders relating to discovery. In the same order, the District Court

dismissed as moot Huertas’s “motion for facts to be taken as established, or alternatively,

for summary judgment.” Shortly thereafter, on July 15, 2010, in light of the District

Court’s order, a Magistrate Judge, ruling pursuant to a referral under 28 U.S.C. §

636(b)(1)(A), see D.N.J. L. Civ. R. 72.1(a), dismissed some pending pretrial motions as

moot.

        On August 6, 2010, Huertas filed his first notice of appeal, in which he challenged

all the orders described above except the Magistrate Judge’s order. However, he

amended his notice of appeal to include that order on August 9, 2010. The U.S.

Department of Education and Diane Spadoni present a motion to summarily affirm the

District Court’s judgment, arguing that the District Court did not abuse its discretion in

dismissing the case after carefully considering the factors of Poulis v. State Farm Fire &

Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Huertas opposes the motion.

        We review a dismissal as a sanction under Rule 37 for violating court orders

through the lens of the Poulis factors, asking also whether the District Court should have

considered a less severe sanction. See In re Jewelcor Inc., 11 F.3d 394, 397 (3d Cir.

1993). Specifically, we consider the District Court’s balancing of “(1) the extent of the
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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 . . . 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.” Emerson v. Thiel College, 296 F.3d 184,

190 (3d Cir. 2002) (citing Poulis). On consideration of these factors, we will affirm the

District Court’s decision to dismiss the case because no substantial issue is presented on

appeal. See L.A.R. 27.4; I.O.P. 10.6.

       Huertas proceeded pro se, so the responsibility for any failure to prosecute falls on

him. See Emerson, 296 F.3d at 190. The defendants suffered prejudice due to Huertas’s

delay in the proceedings, as well as his failure to comply with discovery requests,

deposition notices, and related court orders. The defendants spent time and money to file

motions to compel discovery. They also bore the cost of a court reporter when Huertas

did not comply with a court order to appear for his deposition.

       As the District Court explained in greater detail, Huertas had a history of

dilatoriness. For example, Huertas did not comply with several court-imposed deadlines

to produce documents that he listed with his initial disclosures and to respond to written

discovery requests propounded by the defendants. Several times, the Magistrate Judge

amended the scheduling order to change the date by which Huertas had to produce

documents or other responses and otherwise entered orders for Huertas to comply with

discovery requests. More than once, Huertas did not appear for his scheduled deposition,
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despite the Magistrate Judge’s order that it be held over two days in respect for Huertas’s

stated medical condition and the Department of Education’s agreement on short notice to

conduct the deposition in a Magistrate Judge’s jury room (instead of a courtroom) on

Huertas’s request. In addition, shortly before one of his scheduled depositions, he filed a

motion to recuse the District Court judge and to stay the order compelling him to attend

the deposition, an application which the Chief Judge of the U.S. District Court for the

District of New Jersey denied on the conclusion that it was “wholly without merit.”

Given, among other things, the number of orders that Huertas violated, the District Court

concluded that Huertas acted willfully and not merely negligently or inadvertently.

       The District Court also explicitly considered whether lesser sanctions would be

appropriate. As the District Court noted, monetary sanctions would not have been an

effective alternative, because Huertas was proceeding in forma pauperis. See Emerson,

296 F.3d at 191. Warnings alone did not work. More than once, in the scheduling

orders, the District Court told Huertas that failure to comply with its orders could lead to

sanctions under Rules 16 and 37 of the Federal Rules of Civil Procedure that included

dismissal of his complaint. Furthermore, the District Court specifically warned Huertas

that the suit would be dismissed if Huertas did not appear for his again rescheduled

deposition in March 2010. Huertas did not appear. Although he sought to stay the

related scheduling order, he did not seek a protective order, and the motion he filed was

ruled to be “wholly without merit.”

       The District Court also thoroughly considered the potential merit of Huertas’s
                                              4
claims. As the District Court acknowledged, some of Huertas’s claims could be “deemed

meritorious on the basis that the allegations of the pleadings, if established at trial, would

support recovery by plaintiff.@ Poulis, 747 F.2d at 869-70. However, it cannot be said

that the District Court abused its discretion in concluding that on balance, dismissal was

warranted given the presence of other factors weighing in favor of dismissal in this case.

See Curtis T. Bedwell & Sons, Inc. v. Int’l Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir.

1988) (holding that not all Poulis factors must weigh in favor of dismissal).

       For these reasons, we grant the motion for summary action, and we will affirm the

District Court’s decision to dismiss Huertas’s suit under Rule 37 of the Federal Rules of

Civil Procedure (and to dismiss as moot his “motion for facts to be taken as established,

or alternatively, for summary judgment.”). We will not consider the earlier order that

Huertas seeks to challenge. See Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974).

We also will not consider the Magistrate Judge’s ruling that followed dismissal of

Huertas’s lawsuit. Even if Huertas’s amended notice of appeal (his first notice of appeal

that cited the pertinent order) could in some way serve as a notice of appeal to the District

Court, it was untimely as an appeal from the Magistrate Judge’s ruling. See Fed. R. Civ.

P. 72(a). For this reason, Huertas waived review of the Magistrate Judge’s order made

pursuant to a referral under 28 U.S.C. § 636(b)(1)(A). See United Steelworkers of Am.

v. New Jersey Zinc Co., 828 F.2d 1001, 1007-08 (3d Cir. 1987) (holding that a litigant

must file objections in the District Court within the time period set forth in Rule 72 of the

Federal Rules of Civil Procedure in order to preserve the issue).
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