NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1126

___________

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 34.1(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 comply with discovery obligations. See Fed. R. 

Civ. P. 37(b)(2). We will affirm.

 

* This disposition is not an opinion of the full Court 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, alleging that her 

former employer, Festival Fun Parks LLC (FFP), discriminated against her by refusing to 

rehire her for seasonal employment.1 Specifically, she claimed that FFP violated the 

Americans with Disabilities Act and the Pennsylvania Human Relations Act in 2010 

when it did not invite her to return to work for the 2011 season. At various times

throughout 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, 

although FFP’s stated reason was that a background check revealed 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 timely sought relief in the District Court.

In April 2013, FFP moved to dismiss the case, but that motion was denied. The 

pretrial discovery phase began, and the District Court initially set a discovery deadline of 

September 16, 2014. That deadline was not met, however. During the discovery period, 

 

1 Hoffman filed suit against “Palace Entertainment a/k/a Dutch Wonderland” and 

“Festival Fun Parks LLC.” The defendants indicated that Festival Fun Parks operates 

under the name of Palace Entertainment and is the sole owner of Wonderland 

Management, LLC, which does business as Dutch Wonderland. We will refer to the 

defendants as FFP throughout this opinion.
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 pretrial depositions and conferences. FFP moved for dismissal as a sanction, and on 

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 considering Hoffman’s objections, 

the District Court adopted the Magistrate Judge’s report and recommendation and 

dismissed Hoffman’s action 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 pursuant 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 party 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 

conduct 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.2d 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 reasoned 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. 1984) (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 Cir. 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 

scheduled conferences and depositions. Hoffman, we note, repeatedly refused to provide 

medical documentation of her disabilities to FFP, although her action was based on the 

claim that she was not re-hired because of those disabilities. Hoffman also failed to be 

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

assurance only 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 

Magistrate Judge’s order warning that she would be sanctioned if she did not comply. 

The District Court thus correctly concluded that Hoffman was personally responsible for 

 

2 The Magistrate Judge considered imposing alternative, lesser sanctions but correctly 

reasoned that, (a) as Hoffman was proceeding in forma pauperis, she would be unable to 

pay monetary sanctions, and (b) preventing Hoffman from presenting evidence of her

disabilities would render 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 necessary 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 vague and incomplete responses. FFP 

also paid to transport Hoffman to an independent medical exam as part of discovery. 

Afterward, Hoffman refused to sign Health Insurance Portability and Accountability Act

(HIPAA) releases that would allow FFP to access her background 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 found 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 hearing 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 often-inconsistent excuses for her behavior, including lack of finances, 

medical reasons such as an “amnesia state,” and being locked out of her apartment due to 
6

a landlord-tenant dispute. Given 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]xtensive 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 (internal quotation marks and citation omitted). 

Hoffman has repeatedly displayed willful behavior. For example, she 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 noted 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 conference 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 other than dismissal
7

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. Given this, the District 

Court reasonably concluded that Hoffman lacked the means to pay, and thus be affected 

by, a financial sanction. Further, as suggested by the Magistrate Judge’s entertainment of 

possible other sanctions, allowing the case to continue but barring Hoffman from 

producing evidence on issues where she had impeded discovery would have resulted in a 

futile lawsuit, amounting 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 merit 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 often difficult to discern and internally inconsistent. For 

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 assertions 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. Here, 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, given 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 overruled 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.