2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-13-2010

Hector Huertas v. US Dept Ed

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3386

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ALD-045 NOT PRECEDENTIAL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 
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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 
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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).