2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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- 045 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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. Borrow er 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 Ne w 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

( F iled 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 effort s to collect on his student loan debt. One2

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 Cour t 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 “moti on for facts to be taken as established, or alternatively, for summary judgment.” Shortly thereafter, on July 15, 2010, i n 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 firs t 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 aft er 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 facto rs, 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 the3

party’s personal respo nsibility; (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 sanction s 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 affir m 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 discov ery. 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 hist ory of dilatoriness. For example, Huertas did not co mply 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 chang e 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,4

despite the Magistrate Judge ’s order t hat it be held over two days in respect for Huertas’s
stated medical condition and the De partment 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 additi on, s hortly 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 order s that Huertas violated , the District Court concluded that Huertas acted willfully and not merely negligently or inadvertently. The Distric t Court also explicitly considered whether lesser sanctions would be appropriate. As the District Court noted, monetary sanctions would not have be en 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 order s , 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 appea r for his again rescheduled deposition in March 2010 . Huertas did not appear. Although he sought to stay the
related s cheduling 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’s5

claims. As the District Court acknowledged, some of H uertas ’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 disc retion in concluding that on ba lance, 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 no t 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 d ismiss 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 n ot consid er 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
Co urt, it was untimely as an appe al 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 o f 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)

.