NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 5

- 1126

___________ HEATHER HOFFMAN ,

Appellant

v. PALACE ENTERTAINMENT, a/k/a Dutch Wonderland; FESTIVAL FUN PARKS LLC

___________________________________ _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2

- 12

- cv - 06165 ) District Judge: Honorable James Knoll Gardner

____________________________________ Submitted Pursuant to Third Circuit LAR 3 4.1(a)

July 1, 2015 Before: CHAGARES, JORDAN and COWEN , Circuit Judges

(Opinion filed : July 16, 2015 )

___________ OPINION *

___________ PER CURIAM Heather Hoffman appeals pro se from the District Court’s order dismissing her complaint as a sanction for failing to co mply with discovery obligations. See Fed. R. Civ. P. 37(b)(2). We will affirm.

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 I. Hoffman began this action in October 2012 in the District Court, al leging that her former employer, Festival Fun Parks LLC (FFP) , discriminated against her by refusing to

re hire her for seasonal employment. 1 Specifically, she claimed that FFP violated the Americans with Disabilities Act and the P ennsylvania Human Relations Act in 2010 when it did not invite her to return to work for the 2011 season. At various time s throu ghout this action, Hoffman claimed that she suffered from : a seizure disorder due to “battered woman’s syndrome,” high blood pressure, acute renal failure, “a heart condition,” “amnesia states,” and “adjustment disorder.” Hoffman further alleged that she was discriminated against throughout 2010 due to her absences from work, even though she provided doctors’ notes for the majority of those absences. She also claimed that FFP withdrew a separate offer of employment in 2011 for discriminatory reasons, alth ough FFP’s stated reason was that a background check reve aled an undisclosed 2002

arrest. Hoffman’s discrimination claim with the Equal Employment Opportunity Commission was terminated on July 31, 2012, and a right

- to

- sue letter was issued. Hoffman timel y sought relief in the District Court. In April 2013, FFP moved to dismiss the case, but that m otion was denied. The pretrial discovery phase began, and the District Court initially set a discovery deadline of September 16, 2014 . That deadline was not m et, however

. During the discovery period,

1 Hoffman filed suit against “Palace Entertainment a/k/a Dutch Wonderland” a nd “Festival Fun Parks LLC.” The defendants indicated that Festival Fun Parks ope rates under the name of Palace E ntertainment and is the sole owner of Wonderland Mana gement, LLC, which does business as Dutch Wonderland. We will refer to the defendants as FFP throughout this opin i on.3

Hoffman ignored repeated communications from both the defendants and the Magistrate Judge , and she failed to respond to interrogatories , submit documents, and appear for pre

trial depositions and conferences. FFP moved for dismissal as a sanction, and o n November 4, 2014, the Magistrate Judge recommended that Hoffman be sanctioned. See Fed. R. Civ. P. 16(f), 37(b)(2)(A), 37(d)(1)(A). After con sidering Hoffman’s objections , the District Court adopted the Magistra te Judge’s report and recommendation and dismissed Hoffman’s a ction as sanction. Hoffman appealed and requested counsel. Hoffman has also asked to supplement the record with materials not previously before the District Court.
II. We have jurisdiction pu rsuant to 28 U.S.C. § 1291. We review the District Court’s dismissal of a complaint as a sanction for abuse of discretion. See Poulis v. State Farm Fire & Cas. Co. , 747 F.2d 863, 868 (3d Cir. 1984). Under Poulis , a court may enter judgment against a par ty as a sanction after considering the following six factors: (A) the extent of the party’s personal responsibility; (B) the prejudice to the adversary caused by the party’s conduct ; (C) whether the party has a history of dilatoriness; (D) whether the cond uct of the party was willful or in bad faith; (E) the effectiveness of sanctions other than dismissal; and (F) the meritoriousness of the claim. Id. at 867

- 68. “In determining whether a District Court has abused its discretion in dismissing a complaint . . . we will be guided by the manner in which the court balanced the Poulis factors and whether the record supports its findings.” Hicks v. Feeney , 850 F.2 d 152, 156 (3d Cir. 1988) (quoting Ali v. Sims , 788 F.2d 954, 957 (3d Cir. 1986)).4 III. We begin with Magistrate Judge’s recommendation

. The Magistrate Judge properly reason ed that, after a careful balancing of the Poulis factors, the “drastic sanction” of dismissal was appropriate. 2 Poulis v. State Farm Fire & Cas. Co. , 747 F.2d 863, 866 (3d Cir. 1 984) (quoting Donnelly v. Johns

- Manville Sales Corp. , 677 F.2d 339, 342 (3d Cir. 1982)). We note that it is not necessary for each Poulis factor to be satisfied in order for dismissal to be appropriate. Ware v. Rodale Press, Inc. , 322 F.3d 218, 221 (3d C ir. 2003 ). A. The extent of the plaintiff’s personal responsibility The Magistrate Judge concluded that because Hoffman acted pro se, she was personally responsible for her failure to respond to discovery requests, court orders, and schedul ed conference s and depositions. Hoffman , we note, repeatedly refused to provide medical documentation of her disabilit ies to FFP, alth ough her action was based on the claim that she was not re

- hired because of those disabilities

. Hoffman also failed to be available f

or an August 6, 2014, conference call regarding discovery issues in spite of her

assurance o nly one day earlier that she would be able to take the call. Moreover , she refused to appear in person at a pretrial hearing on October 27, 2014, in spite of the
M agistrate Judge’s order warning that she would be sanctioned if she did not comply. The District Court th us correctly concluded that Hoffman was personally responsible for

2 The Magistrate Judge considered imposing alternative, lesser sanctions but correctly reason ed that, (a) as Hoffman was proceeding in forma pauperis , she would be unable to pay monetary sanctions , and (b) preventing Hoffman f rom presentin g evidence of her disabilities would rend er her action futile, and would therefore be the equivalent of a dismissal.5

her refusals to provide discovery. See Emerson v. Thiel Coll. , 296 F.3d 184, 190 ( 3d Cir. 2002). B. Prejudice to the defendants The Magistrate Judge correctly found that FFP was prejudiced by Hoffman’s repeated refusals to cooperate

. FFP drafted numerous letters and motions to obtain discovery and secure Hoffman’s presence at nec essary pretrial depositions and conferences , to no avail. It also engaged in extensive email communication with Hoffman, in an attempt to understand whether she planned to fulfill her responsibilities on various occasions. Each time, Hoffman gave v ague a nd incomplete respon ses. FFP also paid to transport Hoffman to an independent medical exam as part of discovery.
A fterward , Hoffman refused to sign Health Insurance Portability and Accountability Act (HIPAA) release s that would allow FFP to access her ba ckground medical information

. These repeated, unnecessary discovery costs constitute prejudice to FFP. See Adams v. Trs. of N.J. Brewery Emps.’ Pension Trust Fund , 29 F.3d 863, 874 (3d Cir. 1994). C. History of dilatoriness The Magistrate Judge foun d that, during the two years of litigation, Hoffman had turned over little to no discovery to FFP, failed to appear for her deposition, and failed to be present telephonically for a pretrial h earing and had thus been consistently dilatory. Hoffman did not respond to discovery requests in a timely manner and insisted on appearing for her deposition by telephone. Throughout the District Court proceedings, Hoffman offered o ften

- inconsistent excuses for her behavior, including lack of finances , medical reason s such as an “amnesia state , ” and being locked out of her apartment due to6

a landlord

- tenant dispute. G i ven all this, we perceive no error in the finding that Hoffman exhibited a history of dilatoriness. See Adams , 29 F.3d at 874 (holding that “[e]xtensi ve or repeated delay or delinquency constitutes a history of dilatoriness ”). D. Whether the conduct was willful or in bad faith The Magistrate Judge characterized Hoffman’s conduct as willful and in “flagrant bad faith.” See Adams , 29 F.3d at 875 (inte rnal quotation marks and citation omitted). Hoffman has repeatedly displayed willful behavior

. For example, s he sat for an independent medical exam as part of the discovery process in July 2014 but later refused to sign HIPAA forms releasing her medical history , despite her previous assurances to FFP that she would do so. Hoffman stated that she lacked funds to make copies of the emailed HIPAA forms, but she made no effort to obtain hard copies from FFP . After repeated requests, she returned only one of the eight forms, and she altered that form to the extent that it was unusable. Hoffman also informed FFP that she would not be available for a scheduled deposition in August 2014. As not ed previously, she also failed to attend a telephone conference in that month , despite her assurances the previous day that she would be available. On the day of the conference, the Court and the defendants called Hoffman several times and left two voice messages. Hoffman did not respond until two hours after the confer ence ended, when she called the defendants to inform them that she was ready to speak. For these reasons, among others, Hoffman’s conduct was properly deemed willful and in bad faith. See Emerson , 296 F.3d at 191

. E. The effectiveness of sanctions othe r than dismissal7

When a party lacks significant financial means, monetary penalties are not likely to have an impact. See id

. Hoffman repeatedly stated that she lives on a fixed income and lacks funds for expenses such as photocopies and bus fare. Give n this, the District Court reasonably concluded that Hoffman lacked the means to pay, and th us be affected by, a financial sanction. Further, as suggested by the Magistrate Judge’s entertainment of possible other sanctions, allowing the case to continue b ut barring Hoffman from producing evidence on issues where she had impeded discovery would have result ed in a futile lawsuit , amount ing to an effective dismissal of the case

. See Curtis T. Bedwell & Sons, Inc. v. Int'l Fid. Ins. Co. , 843 F.2d 683, 696 (3d Cir. 1988). The District Court did not err in concluding that imposing sanctions other than dismissal would be ineffective

. See Briscoe v. Klaus , 538 F.3d 252, 262

- 63 (3d Cir. 2008 ). F. The meritoriousness of the claim Under Poulis , a claim has me rit when the allegations in the pleadings , if established at trial “would support recovery by the plaintiff. . . .” 747 F.2d at 870 (internal citations omitted). While Hoffman’s allegations survived a motion to dismiss , we note that her allegations are o ften difficult to discern and internally inconsistent

. F or instance , when asked at her October 27, 2014, deposition to articulate her claims, Hoffman said only that her rights were violated and mentioned “something with the FCRA.” Such conclusory asserti ons would not support recovery at trial. See id. At all events, this factor is insufficient to override the preceding factors, which all weigh against Hoffman.
IV

.8

We recognize the sanction of dismissal is an extreme sanction that may be imposed only after a balancing of the Poulis factors. See id. H ere, every factor , or at least nearly every factor, weighs in favor of dismissal. See Ware , 322 F.3d at 221

. For the reasons stated above, we will affirm the judgment of the District Court. 3 Hoffman’s requests for counsel and to expand the record are denied.

3 Hoffman’s Eighth Amendment argument, contained in her objections to the Magistrate Judge’s report, was without merit, giv en that Hoffman’s case does not concern criminal punishment. Her objection regarding “the fact found process and NON SUBPOENA ISSUED” is not decipherable, even given the latitude we ascribe to pro se filings. Finally, the District Court properly overrule d Hoffman’s objection based on DiPetto v. U.S. Postal Service , 383 Fed. App’x. 102 (2d Cir. 2010) (nonprecedential) , because that case did not address a motion for sanctions under similar circumstances. See id.