                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2007

Huertas v. City of Camden
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1531




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                                                            NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                        Nos. 07-1531 & 07-1643


           HECTOR L. HUERTAS, ON BEHALF OF HIMSELF
             AND ALL OTHERS SIMILARLY SITUATED

                                   v.

CITY OF CAMDEN; LUIS PASTORIZA, City of Camden Clerk; GWENDOLYN
FAISON, Mayor; ALI SLOAN-EL, City Councilman; CYRUS P. SAXON, Grants
   Administrator; FRANK FULBROOK, Member City Democratic Committee

                           Hector L. Huertas,
                                                Appellant


             On Appeal From the United States District Court
                       For the District of New Jersey
                       (D.N.J. Civ. No. 05-cv-05375)
              District Judge: Honorable Jerome B. Simandle


               Submitted Under Third Circuit LAR 34.1(a)
                           August 10, 2007

       Before: FISHER, ALDISERT, and WEIS, CIRCUIT JUDGES.

                        (Filed: August 14, 2007)



                               OPINION




                                   1
PER CURIAM

              Hector L. Huertas appeals pro se from the final judgment of the District

Court and several of its interlocutory orders. For the reasons that follow, we will affirm.1

                                             I.

              Huertas is an Hispanic individual registered to vote in Camden, New Jersey.

In his Amended Complaint, he alleges that the city and certain city officials have sought

to “dilute” the Hispanic vote in two ways. First, Huertas claims that Camden has adopted

a majority-vote/runoff requirement that will have the effect of ensuring that African-

American candidates dominate city elections. Second, he claims that the city has

approved a residential redevelopment plan for its Cramer Hill section. According to

Huertas, that section is primarily Hispanic, and the redevelopment might have the effect

of displacing Hispanic voters from Camden. On the basis of these allegations, Huertas

sought declaratory and injunctive relief under 42 U.S.C. §§ 1971, 1973, 1983 and 1988.

              By order entered September 25, 2006, the District Court (1) granted

defendants’ motion to dismiss the Cramer Hill redevelopment claim for lack of standing,

but allowed the runoff claim to proceed, and (2) denied three motions that Huertas had

filed seeking to further amend his complaint. By order entered February 16, 2007, the

District Court denied three of Huertas’s motions pertaining solely to his remaining runoff



   1
     Huertas has filed a motion seeking to compel appellees to return the appendix that he
served on them. Huertas has not cited any authority authorizing us to issue such an order,
and we are aware of none. Accordingly, that motion is denied.

                                             2
claim: (1) a motion for judgment on the pleadings; (2) a motion to strike defendants’

affirmative defenses; and (3) a motion to preliminarily enjoin the city from using the

procedure. Huertas filed a notice of appeal on February 20, 2007, from the February 16

order.

              On February 26, 2007, a Magistrate Judge held a conference on Huertas’s

motion to compel discovery and recover costs as a discovery sanction. The Magistrate

Judge ordered defendants to produce certain discovery, but denied the request for

sanctions. Huertas then stated that he wanted to voluntarily dismiss the case with

prejudice, provided that defendants not seek costs from him. Defendants’ counsel

conducted a colloquy on this issue, and the proceeding is transcribed. On February 28,

2007, the District Court entered an order dismissing the case with prejudice pursuant to

Fed. R. Civ. P. 41(a)(2). Huertas then filed a second notice of appeal, seeking to appeal

that order as well as those discussed above. We have jurisdiction pursuant to 28 U.S.C. §

1291.

                                             II.

                          A.    The District Court’s Jurisdiction

              Huertas argues that the District Court lacked jurisdiction because his claims

should have been heard by a three-judge District Court panel, which Huertas requested in

his second motion to further amend his complaint. According to Huertas, a three-judge

panel was required by the Voting Rights Act, 42 U.S.C. § 1971(g). As the District Court

correctly noted, however, Huertas’s claims do not fall within either that provision or the

                                             3
general three-judge panel provisions codified at 28 U.S.C. § 2284. Thus, the District

Court was neither required nor authorized to convene a three-judge panel to rule on

Huertas’s claims. Cf. Page v. Bartels, 248 F.3d 175, 185 (3d Cir. 2001) (explaining that §

2284 specifies the situations in which a three-judge panel is required).

           B.     The Voluntary Dismissal and the Orders of February 16 and 28

                Huertas’s voluntary dismissal raises another threshold question, this one

regarding the scope of this appeal. “Generally, voluntary dismissals under Rule 41(a)(2)

are not reviewable on appeal.” Empire Volkswagen Inc. v. World-Wide Volkswagen

Corp., 814 F.2d 90, 94 (2d Cir. 1987). See also United States v. Procter & Gamble Co.,

356 U.S. 677, 680 (1958) (noting “the familiar rule that a plaintiff who has voluntarily

dismissed his complaint may not sue out a writ of error”); United States v. Babbitt, 104

U.S. 767, 768 (1881) (explaining that rule is rooted in the doctrine of waiver) (cited in

Procter & Gamble Co.). Huertas, however, challenges not merely the fact that his case

was dismissed, but the allegedly-prejudicial process the District Court employed in

dismissing it. We review that process for abuse of discretion, see Ferguson v. Eakle, 492

F.2d 26, 28-29 (3d Cir. 1974), and find none here.

                According to Huertas, he requested that the dismissal be accomplished by

written stipulation, but defendants’ counsel and the District Court “ignored” this request

by forcing a “colloquy procedure” on him. Huertas also argues that a stipulation was

necessary to clarify that his voluntary dismissal was contingent on defendants not seeking

costs against him. These arguments lack merit. Huertas expressly stated during the

                                              4
hearing that he had “no objection” to the District Court entering an order of dismissal

with prejudice on the basis of the colloquy without a separate stipulation. (Feb. 26, 2007

Trans. at 25:15-22.) Moreover, defendants’ counsel expressly stated on the record that

the city would not seek costs from Huertas. (Id. at 25:5-9.) Huertas thus has waived any

challenge to this procedure, with which he has no real grievance to begin with.

              Accordingly, the District Court did not abuse its discretion in entering the

February 28 order. When Huertas requested the dismissal, his runoff claim was still

pending, and none of the District Court’s prior orders had effectively precluded that

claim. Thus, Huertas has waived any further challenge to the dismissal of his runoff

claim, including any challenge to the District Court’s prior rulings on motions that related

only to that claim. This means that Huertas has waived any challenge to the February 16

order.2

                              C.    The September 25 Order

              That leaves the September 25 order, which dismissed Huertas’s Cramer Hill

redevelopment claim and denied his motions to further amend his complaint. Huertas’s




   2
      Huertas first sought to appeal this order on February 20, before there was a final
decision of the District Court. At that time, the only potentially-appealable aspect of the
order was its denial of his motion for a preliminary injunction. See 28 U.S.C. § 1292(a).
Huertas’s subsequent voluntary dismissal with prejudice of the claim on which that
motion was based might be characterized as having rendered moot his appeal from the
denial of that motion, because there is no longer any possibility that he can show a
likelihood of success on the merits.

                                             5
voluntary dismissal of his suit arguably waived any challenge to those rulings as well.3

Defendants, however, do not so argue, but instead address the challenge on the merits.

Potential waiver is not a jurisdictional impediment to review, and Huertas (though an

experienced litigator) is proceeding pro se. Thus, we have given him the benefit of the

doubt and have reviewed his challenge to the September 25 order on the merits.4

              Having done so, we agree with the District Court that Huertas lacks

standing to bring this claim. Huertas is not a resident of Cramer Hill and does not argue

that the proposed plan would affect him directly. Instead, his claim is that the proposed

plan, if approved and implemented, might displace some indeterminate number of

Hispanics from the city, and thus might have the effect of diluting the Hispanic vote. We

agree with the District Court that this claim is purely speculative and that Huertas’s

alleged injury is thus too attenuated to confer Article III standing. See Taliaferro v.



   3
      Most Courts of Appeals have concluded that a voluntary dismissal with prejudice
can be used as a vehicle to obtain immediate review of certain interlocutory orders. See,
e.g., Trevino-Barton v. Pittsburgh Nat’l Bank, 919 F.2d 874, 878 (3d Cir. 1990). Here,
however, Huertas never stated during the colloquy that he was dismissing his case to
obtain immediate review of any prior ruling. Cf. Laczy v. Ross Adhesives, 855 F.2d 351,
354 (6th Cir. 1988) (“[O]ne who seeks to come within an exception to this rule [of non-
appealability after a voluntary dismissal] should make his or her intentions known to the
court and opposing parties.”). Instead, he now argues that he dismissed his case for
financial reasons and because he “felt defeated” by the Magistrate Judge’s denial of his
motion for sanctions. (Appellant’s Br. at 8, 24, 39.)
   4
      We exercise plenary review over the District Court’s dismissal of Huertas’s claim
for lack of standing, see Leuthner v. Blue Cross & Blue Shield of Ne. Pa., 454 F.3d 120,
124 (3d Cir. 2006), and review its denial of his motions to amend for abuse of discretion,
see Garvin v. City of Phila., 354 F.3d 215, 219 (3d Cir. 2003).

                                              6
Darby Twp. Zoning Bd., 458 F.3d 181, 188, 191 (3d Cir. 2006) (explaining that standing

requires, inter alia, an injury that is “actual or imminent, not conjectural or hypothetical,”

and affirming dismissal of similar vote dilution claim).5

              As for Huertas’s three motions to further amend his complaint, such

motions may be denied if the proposed amendment would be futile (i.e., legally

insufficient). See Garvin, 354 F.3d at 222. We agree with the District Court that such is

the case here. Huertas’s first and third motions sought to add certain allegations

regarding the redevelopment plan, and to name as defendants certain private parties

involved in that plan. We agree that these proposed amendments are insufficient to

confer standing. Huertas’s second motion requested a three-judge panel, which, as

explained above, was neither authorized nor required under these circumstances.

              For these reasons, we will affirm the District Court’s orders.




   5
      We also note, as did the District Court, that this claim may be moot. Defendants
have represented that the New Jersey Superior Court disapproved the Cramer Hill re-
development plan and that they have withdrawn it and abandoned their appeal. Huertas
himself attached various newspaper articles reporting those events to documents he filed
in the District Court.

                                              7
