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Catholic Law’s Judicial Clerkship Opinion Writing Conference

10 Federal Judges and 30 Rising Law Clerks Participate

MARCH 10, 2021 | REPUBLISHED BY LIT: MARCH 10, 2021

On Feb. 26-27, 2021Catholic University’s Columbus School of Law hosted 30 rising law clerks from across the country who will be serving in the chambers of Federal Circuit Courts, Federal District Courts, and State Appellate Courts in the upcoming year. While many events have been affected by the pandemic, the conference provided a welcome opportunity for learning for those in attendance.

The two-day, virtual conference provided the conferees with an opportunity to learn the particulars of judicial opinion writing — a unique conference focus undertaken by the Law School to serve both bench and bar. The first day of the conference included instruction from Judge Kyle Duncan of the Fifth Circuit Court of Appeals, Judge Paul Matey of the Third Circuit Court of Appeals, Judge Chad Readler of the Sixth Circuit Court of Appeals, and Judge Lawrence VanDyke of the Ninth Circuit Court of Appeals, who reviewed opinions to illustrate what goes into the opinion-writing process and took questions from the clerks about their strategic choices.

On the second day, the clerks were divided into breakout sessions, in which Judge James Boasberg and  Judge Dabney Friedrich of the U.S. District Court for the District of Columbia; Judge John Gallagher and  Judge Joseph Leeson of the U.S. District Court for the E.D. Pennsylvania; Judge Steven C. Seeger of the U.S. District Court for the N.D. of Illinois; and Judge Edward Meyers of the U.S. Court of Federal Claims reviewed and critiqued draft opinions the clerks had written on a problem derived from Catholic Law’s past Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition problem. This activity allowed the clerks to apply the skills they were learning and receive feedback. Conferees are all eligible for the CSL Prize in Judicial Clerkship Opinion Writing.

The conference ended with a panel discussion of current and former judicial clerks — Professor Joel AliceaWill Haun ’12, Anika Smith ’20, and Jack Vivian ’17 — who took questions from the conferees about clerkship tenures in general.

The conference ended with a panel discussion of current and former judicial clerks — Professor Joel AliceaWill Haun ’12, Anika Smith ’20, and Jack Vivian ’17 — who took questions from the conferees about clerkship tenures in general.

This event is the inaugural venture of this type by Catholic Law and is planned to take place every spring semester. For more information, contact Catholic Law Faculty Director of Bench and Bar Programs, Professor A.G. Harmon: harmon@law.edu.

SOURCE Catholic University’s Columbus School of Law

‘Not qualified’ rating and accusation from American Bar Association moves Trump nominee Lawrence VanDyke to tears

ORIGINALLY PUBLISHED: OCT 31, 2019 | REPUBLISHED BY LIT: MAR 10, 2021

A federal appeals court nominee broke down in tears during a Senate Judiciary Committee hearing Wednesday, reacting to a scathing letter against his confirmation by the American Bar Association after it conducted 60 interviews and concluded that he was “not qualified” for the judicial branch.

Lawrence J.C. VanDyke grew emotional, with his face turning red as he defended himself against the letter’s conclusions that he could not treat LGBTQ litigants fairly.

“I do not believe that,” VanDyke said. “It is a fundamental belief of mine that all people are created in the image of God,” adding, “they should all be treated with dignity and respect.”

The rare outburst comes as the ABA is under continued attack from conservatives who question its methodology and argue that the group that has rated potential nominees for decades is biased against conservatives. It also comes as the President and Senate Republicans have pushed through a record number of judicial nominees as Democrats have questioned their qualifications.

President Donald Trump nominated VanDyke, who currently serves as a deputy assistant attorney general for the Environment and Natural Resources Division at the Department of Justice, last month for the post on the 9th US Circuit Court of Appeals. The President has repeatedly attacked the liberal-leaning 9th Circuit for rulings that have blocked administration initiatives, especially on immigration.

The ABA on Tuesday night issued a blistering analysis of the nomination.

“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” William C. Hubbard, chair of the ABA’s standing committee on the federal judiciary, wrote. “There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”

So far, at least six of the President’s nominees have received a “not qualified” rating as the Trump administration and the Republican-led Senate has transformed the face of the judiciary by placing nearly 160 nominees on the federal bench including two Supreme Court nominees. But the letter triggered an angry backlash from supporters of the Harvard-educated lawyer who called it a hit job from a liberal-leaning group.

“The ABA is a liberal dark-money group, fronting for trial lawyers who donate millions of dollars to Democratic politicians,” said Mike Davis, who served as chief counsel for then-Judiciary Chairman Chuck Grassley and now runs the Article III project, a group that supports Trump’s nominees. Davis calls the ABA process “fatally flawed, as it is intentionally structured to couple liberal activists with a subjective, black-box process that oftentimes results in unfair hits on conservative judicial nominees.”

And Carrie Severino of the Judicial Crisis Network, which advocates for conservative nominees, charged that the lead evaluator of VanDyke, Montana attorney Marcia Davenport, previously contributed to Van Dyke’s opponent in a 2014 election for a seat on the Montana Supreme Court.

That criticism from this Congress has been muted of late, however, because Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican, has praised the group’s role.

VanDyke is former solicitor general of both Montana and Nevada, but the ABA letter about his fitness for the federal bench was particularly harsh on his temperament. It notes that some interviewees raised concerns about whether VanDyke would be “fair to persons who are gay, lesbian or otherwise part of the LGBTQ community. “Mr VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community,” the letter said.

At the hearing, VanDyke said he was “disappointed, shocked and hurt” when he received the letter Tuesday night. He testified that he was “still processing” it and said he’d since learned that one of the ABA raters involved had donated to his opponent when he ran for a state judiciary race and ultimately lost. He said that during a three-hour meeting with the ABA as the group studied his record in connection with the nomination to federal court, he tried to respond to some of the negative comments lodged against him but the rater told him that she was in a “hurry” and that she wouldn’t let him fully respond.

Graham turned to another nominee, Patrick J. Bumatay, who was sitting next to VanDyke, and is also up for a seat on the 9th Circuit. During his opening statement, Bumatay had introduced his husband and their two children. Graham asked Bumatay if he thought VanDyke could be fair to him. Bumatay said he could.

Democrats on the committee, meanwhile, reacted with concern about the allegations in the letter.

Sen. Patrick Leahy called it “one of the most alarming he’d seen” after some 45 years in Congress. Sen. Chris Coons noted that the letter was “fairly damning” because it was based on interviews with people who had worked with the nominee over the years. Sen. Sheldon Whitehouse suggested that the ABA should be brought in to testify about the matter.

But Republican Sen. Mike Lee reacted furiously, claiming that the letter was “unfounded.” “If this man is not qualified, I don’t know who is,” Lee said. He added that the ABA no longer deserves a “seat at the table” because it has little transparency and cannot be seen as a neutral player when it comes to confirmation hearings.

“The time has come,” Lee said, for the White House and the committee to suspend the ABA’s involvement until there could be a thorough investigation. Texas GOP Sen. Ted Cruz said the group had found VanDyke to be guilty of “practicing law while conservative.”

Asked for comment, the ABA declined to comment on the record, but acknowledged that Davenport had made a $150 contribution to VanDyke’s opponent.

One ABA official said that the group was not going to comment on a $150 contribution made five years ago and pointed to the group’s rules that specify a member of the standing committee agreed not to participate in, or contribute to, any federal election campaign or engage in any partisan political activity on a federal level. The race in question was for the Montana state Supreme Court.

Importance of ABA ratings

The ABA ratings have been used to criticize Trump nominees who liberal critics fear, and conservatives hope that will provide major rulings on issues such as abortion, the Second Amendment and affirmative action. And if some of those cases make their way to the Supreme Court, conservatives will be content to know that the strong conservative majority with Neil Gorsuch and Brett Kavanaugh will be there to rule in their favor.

As of last week, the Senate has now confirmed five judges the ABA deemed unqualified: Leonard Steven Grasz, Charles Barnes Goodwin, Holly Lou Teeter, Jonathan Kobes, and Justin Walker. Goodwin and Teeter received support from Democrats, while the other three were approved only with Republican votes.

Overall, the setbacks have been few as Senate Majority Leader Mitch McConnell has pushed through a record number of appellate judges and often praises a legacy that will last decades.

Two Trump judicial nominees who have been called unqualified by the ABA – John O’Connor and Brett Talley – have withdrawn from consideration. But the setbacks for McConnell and Trump have been far outweighed by their successes in confirming scores and scores of judges. Their effort to reshape the judicial branch with young conservatives is perhaps their longest-lasting legacy.

Last week, Graham shepherded the confirmation of Justin R. Walker, 37, an assistant professor of law at the Brandeis School of Law at the University of Louisville, who received a “not qualified” rating from the ABA, to be a judge on a US district court.

A spokesperson for the ABA said that its rating process is done by a standing committee of the federal judiciary which is independent of the ABA leadership and does extensive peer reviews of the nominees writings and interviews with people who have worked with them. They have three criteria: integrity, temperament and experience and say that ideology does not factor in the evaluation at all.

The ABA rated Walker not qualified, it said in a letter, because he “does not presently have the requisite trial or litigation experience or its equivalent.” The letter stressed that the committee had no questions on his temperament or integrity and that in the future it felt like he had “great potential to serve as a federal judge.”

McConnell, for his part, called Walker “unquestionably the most outstanding nomination that I’ve ever recommended to Presidents to serve on the bench in Kentucky.”

Another nominee the ABA has deemed unqualified is US district judge nominee Sarah E. Pitlyk, who serves as a special counsel at the Thomas More Society, a national public interest law firm that has litigated against Planned Parenthood and was nominated for the Eastern District of Missouri.

The Senate Judiciary Committee is scheduled to vote on her nomination Thursday.

The ABA also criticized her lack of trial and litigation experience.

“A nominee to the federal bench ordinarily should have a minimum of 12 years’ experience in the practice of law,” the committee wrote, although they said the guideline is “neither a hard-and-fast rule or an automatic disqualifier.” “However, Ms. Pitlyk’s experience to date has a very substantial gap, namely the absence of any trial or even real litigation experience.”

“Ms. Pitlyk has never tried a case as lead or co-counsel, whether civil or criminal,” wrote William Hubbard, chair of the ABA’s standing committee on the federal judiciary. ‘She has never examined a witness. “Though Ms. Pitlyk has argued one case in a court of appeals, she has not taken a deposition. She has not argued any motion in a state or federal trial court. She has never picked a jury. She has never participated at any stage of a criminal matter.”

That letter sparked a fight during Pitlyk’s nomination hearing before the Judiciary Committee. Sen. Ted Cruz, R-Texas, said the ABA has a “ridiculous record of behaving as a partisan mouthpiece when it comes to judicial nominations,” and that some members have donated to Democratic lawmakers.

Illinois Democratic Sen. Dick Durbin then remarked that Hubbard had donated to Graham in the past.

“A good man,” joked Graham. He later defended the ABA’s recommendations as “helpful,” calling it a “fine group” that was politically left in his view, but employed people whose judgment he trusts. Graham added that it failed to appreciate Pitlyk’s “non-traditional practice.”

Judicial Nominee Paul Matey Exemplifies the Breakdown of Bipartisan Norms in the Senate

Originally Published: January 28, 2019 | Republished by LIT: March 10, 2021

Dear Chairman Graham, Ranking Member Feinstein, and Committee Members:

On behalf of our hundreds of thousands of members and activists across the United States, People For the American Way opposes the confirmation of Paul Matey of New Jersey to be a federal judge on the Third Circuit Court of Appeals.

Matey served as a senior aide to Gov. Chris Christie from 2010-2015, offered Christie legal advice during a scandal-filled period that included Bridgegate, the use of Hurricane Sandy disaster relief funds for what was essentially a reelection commercial, and rewarding a major political donor with a $150 million no-bid contract.

With both home state senators Bob Menendez and Cory Booker opposed, Matey’s nomination exemplifies the breakdown in norms that once allowed the parties to work together while identifying highly qualified consensus nominees for the federal bench.

During the first two years of the Trump presidency, the Judiciary Committee held hearings for an unprecedented number of circuit court nominees opposed by one or both home state senators. When President Trump nominated Paul Matey, he did so without meaningfully consulting with Menendez and Booker. In addition, Chairman Grassley held a hearing over their objections, even though Booker was a colleague on the committee.

Home state senators often have knowledge of a nominee that might not be known to the White House, and that is certainly the case here. Matey worked as senior vice president and general counsel at University Hospital in Newark. During his tenure, the hospital had several major problems and scandals, including a safety grade that plummeted down to an F. As mayor of Newark at the time, Booker was deeply familiar with the situation, yet he was not meaningfully consulted by the White House. Grassley scheduled Matey’s hearing without first asking Booker to explain his opposition or giving his colleague a chance to meet with the nominee.

As the New Jersey senators wrote to Grassley on November 9, 2018,i after the hearing was scheduled:

[T]he Trump Administration never offered us a meeting with Mr. Matey. The Administration did not make an offer for such a meeting before his nomination in April 2018. The Administration did not do so during the period after his nomination. The Administration did not do so before a Judiciary Committee hearing on his nomination was scheduled. And it has not done so to date.

At Matey’s confirmation hearing,ii Booker urged Grassley to let him meet with the nominee to discuss his concerns in private before the public questioning:

I’m a member of your committee, sir. I know that you would want any judge from your great state that you would want at least the courtesy of having a meeting. Sir, I offer you right now, I will go with this nominee, sit with him in my office, to have that courtesy conversation.

Menendez, I don’t want to speak for my colleague, but I imagine that he would want that courtesy that any senator that is a member of your committee would want. We’ve never denied a meeting with this person.

As a duly elected senator from New Jersey, for a nominee that has served in my city that I was a mayor of is a matter of grace. I’m asking you to extend to me the opportunity before we have this hearing to have a more substantive conversation with this nominee. Would you please grant my — I will meet with him now in my office.

Grassley said no.

But the 116th Congress brings new leadership to the Judiciary Committee, and a chance to restore the norms shattered during these past two years. Chairman Lindsey Graham should not allow the committee to process Matey’s renomination without the consent of both home state senators.

Sincerely,

Marge Baker
Executive Vice President for Policy and Program

Democrats vow Judge Chad Readler will be 2020 issue

Murray and Schumer among Democrats blasting his role in targeting health care law

Originally Published: March 6, 2019 | Republished by LIT: March 10, 2021

Democrats say they will remember the Wednesday afternoon vote to confirm Chad A. Readler, one of President Donald Trump’s most contentious judicial nominees.

The 52-47 vote to install Readler on the 6th U.S. Circuit Court of Appeals in Ohio could easily be lumped in with many other Trump choices pushed through the Senate by Majority Leader Mitch McConnell of Kentucky.

But Readler’s connection to the Justice Department’s decision not to defend the 2010 health care law and its pre-existing condition protections in litigation led by the state of Texas struck a particular chord, as Senate Health, Education, Labor and Pensions ranking member Patty Murray said ahead of the confirmation vote.

“People across the country haven’t forgotten how they had to speak up and stop Republicans from jamming through their awful Trumpcare bill, which would have spiked premiums, gutted Medicaid, and put families back at the mercy of big insurance companies, who could jack up prices for people with pre-existing conditions,” the Washington Democrat said. “Because let’s be clear. Chad Readler’s nomination is the latest test of whether Republicans are serious about fighting for people’s health care — and every Republican who supports him is failing yet again.”

Minority Leader Charles E. Schumer seconded the message that Democrats would not let this one go.

“Can you imagine voting for a man that is so cold hearted that he doesn’t protect a mother who has a daughter or son with cancer, and the insurance companies cuts them off, and they have to watch their child suffer? Will our Republican colleagues actually vote for a nominee who feels that way — not just in his word, but in his action? It’s going to be remembered — this vote — for a long time,” Schumer said on the Senate floor. “A long, long time.”

And this time, one Republican senator echoed the argument made by Murray, Schumer and other Democrats.

Maine Sen. Susan Collins announced Tuesday that she would oppose Readler’s confirmation, citing his “role in the government’s failure to defend provisions under current law that protect individuals with pre-existing conditions.”

“I strongly objected to DOJ’s position to not defend the law, and it is telling that this position also concerned some other career attorneys in the Department. In fact, three career attorneys withdrew from the case rather than support this position, and one of those attorneys eventually resigned,” Collins said in a statement, adding that the Justice Department’s position in the case was simply “wrong and implausible.”

A number of outside groups that support the health care law that came into effect under President Barack Obama have seized on the nominee as the latest example of the GOP’s hostility to health care access, as has the political operation of Senate Democrats.

“The Republicans who support his nomination learned nothing from the shellacking their party suffered during the midterms, and they continue to set the stage for their own defeat in 2020,” said David Bergstein, a spokesman for the Democratic Senatorial Campaign Committee.

Readler is the second of three Trump appellate nominees on track for confirmation this week, following confirmation of Allison Jones Rushing by a 53-44 vote to a seat on the 4th Circuit. She faced questions about her relative inexperience.

Senators also voted 53-46 to limit debate on the nomination of Eric Murphy to another 6th Circuit seat shortly after confirming Readler on Wednesday.

And the confirmations are coming ahead of what seems like an inevitable move by McConnell and Senate Republicans to use the “nuclear option” to enact new Senate precedents that could sharply curtail the debate time — to up to two hours — for lower-level federal district judges, as well as a host of executive branch nominees.

Former Judiciary Chairman Patrick J. Leahy of Vermont again criticized Republicans on Wednesday for not honoring the “blue slips” from Democratic senators when it comes to appeals court nominees, which had been used for decades to indicate consent of home state senators for the confirmation process to move forward.

Ohio Democratic Sen. Sherrod Brown has blasted the Readler nomination. Republicans have argued that such blue slips were not often enforced when it comes to appeals court seats.

Senate Rules and Administration Chairman Roy Blunt highlighted the debate on Tuesday, pointing out that former Rep. John Fleming of Louisiana has been reported out of committee on voice vote twice, but had not yet overcome Democratic objections to be confirmed to a sub-Cabinet position in the Trump administration.

“This week, our leader is required to allocate 30 hours of debate time to confirm the deputy assistant secretary of Commerce for economic development,” the Missouri Republican said. “Most Americans would have a hard time remembering that full title, including me.”

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Appellate Circuit

Law Professor Challenges Eleventh Circuit’s Anomalous Rule as “Sort of Silly”

Under the anomalous rule, courts are immediately reviewing the propriety of the intervention denial. Pretending otherwise is unnecessary.

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The “Anomalous Rule” for Intervention Appeals

The Eleventh Circuit applied its “anomalous rule” for intervention appeals, which makes jurisdiction turn on the merits of intervention.

That’s sort of silly, and there’s a simpler option.

JAN 19, 2021 | REPUBLISHED BY LIT: JUN 1, 2021

In United States v. 60 Automotive Grilles, the Eleventh Circuit held that it lacked jurisdiction to immediately review a decision denying intervention as of right. That was because the district court correctly denied intervention.

Practically speaking, the court reviewed and affirmed the district court’s decision.

But under the “anomalous rule” that the Eleventh Circuit and other courts apply, appellate jurisdiction in intervention appeals turns on whether the district court correctly denied intervention.

This anomalous rule is one of a few different rules that the circuits use to govern intervention appeals.

All of these rules reach the same practical outcome: would-be intervenors can obtain immediate appellate review of decisions denying intervention.

The rules differ only in how courts describe the review. And the differences are unnecessary and potentially confusing.

It might be far simpler to say that all denials of intervention (or at least all denials of intervention as of right) are immediately appealable, regardless of whether the district court was correct.

The decision in 60 Automotive Grilles

60 Automotive Grilles was a civil forfeiture proceeding involving replacement automotive grilles. Customs officials seized the grilles because they bore counterfeit marks of automakers like Ford, Toyota, Mazda, Honda, and Chrysler. The importer of these grilles moved to dismiss the forfeiture action. Chrysler then sought to intervene as of right to defend its trademark and contractual rights. But the district court held that Chrysler’s interests were adequately represented by the government and denied intervention. Chrysler then appealed.

The Eleventh Circuit applied its “anomalous rule” for jurisdiction over intervention appeals. Under this rule, appellate courts have “provisional jurisdiction” to hear immediate appeals from the denial of intervention. Appellate jurisdiction exists to review denials of intervention as of right so long as the district court erred in denying intervention. And appellate jurisdiction exists to review denials of permissive intervention if the district court clearly abused its discretion. But if the district court was correct in denying intervention, the court of appeals lacks jurisdiction and must dismiss the appeal.

In 60 Automotive Grilles, the Eleventh Circuit concluded that the district court correctly denied intervention. The court could see no difference between what Chrysler sought via intervention and what the Government sought in the forfeiture action. Chrysler was thus adequately represented by an existing party. Because the district court was correct, the Eleventh Circuit lacked jurisdiction over the appeal.

The rules for intervention appeals

But, you might be asking, what’s the point of making appellate jurisdiction turn on the merits of the district court’s intervention decision? As a practical matter, the court of appeals still reviews the propriety of the intervention decision. It ultimately makes little difference whether the court of appeals exercises jurisdiction to affirm the district court’s decision or dismisses the appeal.

Some courts of appeals have nevertheless stuck with this traditional “anomalous rule” for intervention appeals. Others have relaxed it a bit, holding that they have jurisdiction to review denials of intervention as of right (but adhering to the traditional rule for denials of permissive intervention). And still other courts have gone all the way to holding that denials of intervention are always immediately appealable.

Again, all three approaches are effectively the same. And the first two—in which jurisdiction turns on the correctness of the district court’s decision—are odd uses of appellate jurisdiction. Judge Friendly made this point in Levin v. Ruby Trading Corp.:

Since this makes appealability turn on the merits, it is not a very effective or useful limitation of appellate jurisdiction; the propriety of the denial by the district judge must be examined before the appellate court knows whether it has jurisdiction, and the only consequence of the restriction on appealability is that on finding the district judge was right, it will dismiss the appeal rather than affirm.

(Quoted in 7C Wright, Miller & Kane, Federal Practice & Procedure § 1923, available at Westlaw.) So even under the anomalous rule, courts are immediately reviewing the propriety of the intervention denial. Pretending that anything otherwise is going on is unnecessary, awkward, and potentially confusing:

A court that in fact is doing everything it would do if it admitted to having jurisdiction should acknowledge that it is exercising jurisdiction. Not only is it more seemly to speak directly; accurate characterization may have some impact on . . . incidental questions . . . .

15B Wright, Miller & Cooper, Federal Practice & Procedure § 3914.18, available at Westlaw.

A rulemaking solution for intervention appeals

As Wright, Miller & Kane note, “[t]he only obstacle to following the simple rule . . . is that there is a substantial body of authority, including cases from the Supreme Court, making the more elaborate distinctions.” That is, courts might be too far along to clean this up.

Rulemaking thus might be appropriate. Under 28 U.S.C. §§ 1292(e) and 2072(c), the Supreme Court can (via the rulemaking process) create rules governing the timing of appeals. A rule governing intervention appeals might be as simple as the following:

Denials of motions to intervene under Federal Rule of Civil Procedure 24 are final decisions under 28 U.S.C. § 1291.

The normal requirements for time limits for appeals as of right would then apply unequivocally apply to intervention denials.

A rule governing intervention appeals might also take the step—suggested by Wright, Miller & Kane—of prohibiting immediate appeals from the denial of permissive intervention. These denials are reviewed under the deferential clear-abuse-of-discretion standard. And reversals are rare. As Wright, Miller & Kane note, “[t]he hope that the doctrine offers the would-be permissive intervenor is wholly illusory.” But so long as the possibility of reversal exists, parties will still appeal from the denial of permissive intervention. Rejecting these appeals outright thus might be the better rule. And although courts might be too deep into the existing rule to change, rulemakers are not.

United States v. 60 Automotive Grilles, 2020 WL 233450 (11th Cir. Jan. 15, 2020), available at the Eleventh Circuit.

About Bryan Lammon

Everything appellate jurisdiction and procedure

Final Decisions covers appellate jurisdiction and procedure: recent decisions, cert petitions, scholarship, rule changes, and more—including a weekly rundown of notable decisions and developments. It is a source for judges, litigators, and law professors looking to learn more about appellate jurisdiction and procedure, stay current in these areas, and gain insight into future developments.

I’m a law professor at the University of Toledo College of Law. I research federal appellate jurisdiction and procedure, primarily if and when parties can appeal. I have published several articles and essays in this area and have several more in the works. My article Rules, Standards, and Experimentation in Appellate Jurisdiction won the 2014 Howard B. Eisenberg Prize from the American Academy of Appellate Lawyers, which is awarded to the best article in the field of appellate practice and procedure. I have also received several teaching awards, including a University Outstanding Teacher Award, Outstanding Professor Award from the 2015 and 2019 graduating classes at the University of Toledo, the Beth Eisler First Year Teaching Award from the 2019 first-year class, and the Lee Ann Pizzimenti Educational Excellence and Distinguished Service Award.

Before becoming a law professor, I clerked for Judge Edward C. Prado on the United States Court of Appeals for the Fifth Circuit and practiced law at Jones Day in the Issues & Appeals group. I started my teaching career at as a Visiting Associate Professor at Washington University in St. Louis, where I also graduated from law school.

Last updated January 31, 2020.

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Appellate Circuit

Judge Charles Wilson and Judge Lisa Branch Like Nothin’ Better than Reviving a Personal Vendetta

Our refrain remains the same. Check the case history to see if you’re about to be “stitched-up” by a panel which is maliciously assembled to execute personal vendettas.

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In This 2021 Foreclosure Case with Sanctions, two members of the Appellate Panel were on Prior Decisions.

In the case of Judge Wilson, he sat on the Coastal Bank v. Martin case (11th Cir.) and in the case of Judge Branch, she was a Panel member in the $2.7M judgment case referenced herein, the Greenstein v. Bank of Ozarks, while she was a Justice on the Court of Appeals in Georgia State Court. Now, the lawyer who was a named party in that case in relation to CEP–TEN Mile Resorts, is before Branch as a Federal Circuit Judge and both Wilson and Branch are conveniently and non-randomly assigned to the 3-panel in this case.

It’s another example of judicial bias from the Eleventh Circuit. “Our refrain remains the same” and we warn parties to do their homework and look to the lower court and aged history of litigants to see if you’re about to be “stitched-up” by a panel which is maliciously assembled to execute personal vendettas.

MAY 29, 2021

Coastal Bank v. Martin, No. 17-11998 (11th Cir. Nov. 20, 2017)

Greenstein v Bank of the Ozarks,  (GA COA, 2014)

(May 28, 2021)

Before WILSON, MARTIN, and BRANCH, Circuit Judges. PER CURIAM:

More than eight years after Truist Bank foreclosed on Roderick Wright’s and his mother’s homes,1 Wright sued Truist, alleging misconduct related to the underlying loans.

On Truist’s motion, the U.S. District Court for the Northern District of Georgia dismissed Wright’s complaint for failure to state a claim.

Wright argues that the district court erred in dismissing his complaint because:

(1) he pleaded an actionable claim for breach of duty by a notary public,

(2) his Georgia RICO Act claim was not time-barred, and

(3) his substantive claims were adequate to support his claims for punitive damages and attorney’s fees.

Because the district court properly dismissed these claims, we affirm.

Truist requests that we deem Wright’s appeal to be frivolous and award sanctions.

Wright requests that we strike portions of Truist’s motion for sanctions for ad hominem language and for us to award sanctions in his favor.

Because we conclude that Wright’s appeal is frivolous, we grant Truist’s motion for sanctions and remand to the district court for an assessment of attorney’s fees and costs.

As to Wright’s motion to strike and for sanctions, we conclude that the arguments in Truist’s motion for sanctions were not improper and deny Wright’s motion.

1 Truist was then known as the Branch Banking and Trust Company.

I. Background

A. Facts

Wright owned a real estate development business and began banking with Truist around 2000. In March 2010, Truist approached Wright with a restructuring plan for some of his commercial loans.

The plan involved securing and cross- collateralizing the loans with Wright’s and his mother’s homes.

Wright alleges that Truist told him that the restructuring plan would be in his best interests. In reliance on that representation, he subsequently executed the plan.

According to Wright, there were no witnesses or notaries present when he signed the plan documents. Afterwards, he alleges, Truist affixed false notary public attestations and witness signatures to the documents.

Truist then allegedly refused to accept full payoffs of the loans.

In November 2010, several months after the parties executed the restructuring plan, Truist foreclosed on Wright’s and his mother’s homes.

B. Procedural History

On December 16, 2019, Wright filed a complaint against Truist in the Superior Court of Gwinnett County, Georgia. Wright alleged that Truist was liable for breach of duty by a notary public, a violation of the Georgia RICO Act, punitive damages, and attorney’s fees.2

Truist subsequently removed the case to the U.S. District Court for the Northern District of Georgia.

2 Wright also alleged counts of fraud, breach of fiduciary duties, economic duress, and to “set aside improper documents.” Because the district court dismissed these claims and Wright

Truist then moved to dismiss Wright’s complaint for failure to state a claim upon which relief can be granted. In its motion, Truist argued that:

(1) Georgia law does not recognize a private cause of action based on violations of the notary public statutes,

(2) Wright’s Georgia RICO Act claim was barred by the applicable five-year statute of limitations, and

(3) Wright was not entitled to punitive damages or attorney’s fees because he failed to establish his underlying claims.

Wright responded and argued that Truist’s “procurement and participation in the intentional violations of” the notary public statutes was actionable under Georgia law, his Georgia RICO Act claim was timely because it “ar[ose] out of the conduct associated with the execution of [sealed documents]” and was subject to a twenty-year statute of limitations, and his claims for punitive damages and attorney’s fees survived because his underlying claims were adequately pleaded.

The district court granted Truist’s motion to dismiss.

It found that “[i]n Georgia, there is no private cause of action for a claim arising under the notary public statutes,” and that “employers are neither subject directly to nor held vicariously liable for violations of OCGA § 45-17-11 committed by a notary public employed by them.”

It rejected Wright’s argument that a twenty-year statute of limitations applied to his Georgia RICO Act claim because the Georgia RICO Act contains a five-year statute of limitations.

Lastly, it dismissed Wright’s claims for punitive damages and attorney’s fees because it had dismissed all of Wright’s underlying claims.

Wright timely appealed.

2 Wright also alleged counts of fraud, breach of fiduciary duties, economic duress, and to “set aside improper documents.” Because the district court dismissed these claims and Wright does not challenge that decision on appeal, we will limit our discussion to Wright’s remaining claims.

On appeal, Wright argues that the district court improperly dismissed his claim for breach of duty by a notary public because it “misinterpreted case law detailing liability of an employer that procured an employee-notary’s violation of [the notary public statute].”

He also argues that it erred in dismissing his Georgia RICO Act claim because it “failed to recognize that the racketeering activity alleged . . . related to the improper attestations of the notaries subjecting the RICO claim to twenty-year statute of limitations under O.C.G.A. § 9-3-23 because the false swearing and false statements were upon sealed instruments.”

Finally, he argues that because his claim for breach of duty by a notary public and his Georgia RICO Act claim “should be reinstated . . . [his claims] for punitive damages and attorneys’ fees should likewise be reinstated.”

After Wright filed his opening brief, Truist filed a motion for sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927.3

In its 28 U.S.C. § 1927 states:

“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Truist argued that Wright’s appeal was frivolous because it was clearly foreclosed by governing law. Truist also made references to the facts that:

(1) Wright’s counsel, Eric J. Nathan, had been sanctioned by this Court in Coastal Bank v. Martin, 717 F. App’x 860, 865–66 (11th Cir. 2017), for failing to disclose controlling authority,

and

(2) Truist had obtained a judgment against Nathan in a separate matter for $2,737,372.61. (LIF Comment: Greenstein v. Bank of the Ozarks, 757 S.E.2d 254 (Ga. Ct. App. 2014).

Based on these facts, Truist suggested that Wright and Nathan were waging a “vendetta” against it.

In response, Wright filed a motion to strike Truist’s motion for containing ad hominem language and requested sanctions.

He argued that Truist “inserted no fewer than eight ad hominem attacks directly, and unnecessarily, attacking the personal credibility and character of Counsel for Wright and Wright himself,” in violation of Eleventh Circuit Rule 25-6.4

According to Wright, it was inappropriate for Truist to mention that Nathan had been sanctioned by this Court or that it had obtained a judgment against Nathan.

He also requested that we impose sanctions against Truist and its counsel under our inherent authority for their purported “continued and pervasive ad hominem attacks.”

3 Rule 38 states: “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”

28 U.S.C. § 1927 states: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

4 Eleventh Circuit Rule 25-6 states: “When any paper filed with the court, including motions and briefs, contains . . . ad hominem or defamatory language . . . the court . . . may without prior notice take appropriate action . . . includ[ing] ordering that: the document be sealed; specified language or information be stricken from the documents; the document be struck from the record; the clerk be directed to remove the document from electronic public access; the party who filed the document either explain why including the specified language or disclosing the specified information in the document is relevant, necessary, and appropriate or file a redacted or replacement document.”

II. Analysis

We review the district court’s grant of Truist’s motion to dismiss de novo, accepting the allegations in Wright’s complaint as true and construing them in the light most favorable to him. McGroarty v. Swearingen, 977 F.3d 1302, 1306 (11th Cir. 2020).

A. Breach of Duty by a Notary Public

Wright argues that the district court erroneously dismissed his claim for breach of duty by a notary public. The district court dismissed the claim because it found that, “[i]n Georgia, there is no private cause of action for a claim arising under the notary public statutes.”
Under O.C.G.A. § 45-17-8(d), “[a] notary public shall not execute a notarial certificate containing a statement known by the notary to be false nor perform any action with an intent to deceive or defraud.” In Anthony v. American General Financial Services Inc., 697 S.E.2d 166, 171–75 (Ga. 2010) (“Anthony I”), the Supreme Court of Georgia held that the notary public statutes do not create a private cause of action. We subsequently adopted that ruling and affirmed a district court’s dismissal of “a private civil claim under the notary fee statute.”5

5 In his complaint, Wright bases his claim for breach of duty by a notary public on O.C.G.A. § 45-17-8(d) in conjunction with O.C.G.A. § 51-1-6. Section 51-1-6 states:

“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party  may recover for the breach of such legal duty if he suffers damage thereby.”

Wright does not make any argument related to O.C.G.A. § 51-1-6 on appeal.

Regardless, in Branch Banking & Trust Co. v. Morrisroe, 746 S.E.2d 859, 861 (Ga. Ct. App. 2013), the Court of Appeals of Georgia held that O.C.G.A. § 45-17-8(d) in conjunction with O.C.G.A. § 51-1-6 does not create a viable cause of action because “[a] duty cannot rest solely on OCGA § 51-1-6 . . . because it merely sets forth general principles of tort law.”

Thus, O.C.G.A. § 51-1-6 does not affect our analysis of whether there is a private cause of action for breach of duty by a notary public under O.C.G.A. § 45-17-8(d).

Anthony v. Am. Gen. Fin. Servs., Inc., 626 F.3d 1318, 1321 (11th Cir. 2010) (“Anthony II”).

Wright ignores these holdings and points to language in Anthony I where the Supreme Court of Georgia stated: “[A]lthough a corporation cannot be directly or vicariously liable for a violation of OCGA § 45-17-11, it still may be liable if it procures or otherwise qualifies as a party to or participating in such a violation by a notary.” 697 S.E.2d at 171;

See id. at 170 (“But under well-established principles, the corporation (or other person) may still be liable if it participates in or procures the notary’s violation. In terms of criminal liability, this is simply the concept of being a party to a crime.”).

He argues that this language permits his claim against Truist to go forward.

But Wright misinterprets this language. Although the Supreme Court of Georgia stated that a “corporation . . . may still be liable if it participates in or procures the notary’s violation,” Anthony I, 697 S.E.2d at 170 (emphasis omitted), it was not creating a private cause of action for violations of the notary public statutes.

Instead, it was merely noting that a plaintiff “may be able to pursue civil liability against [a party who violates the statute] under other applicable tort or contract laws of this State.” Id. at 175.

It is for those claims—for violations of “other applicable tort or contract laws”—that a corporation may be held liable as a joint wrongdoer under the notary public statutes.

See id. at 170 (“[I]n all cases, a person who maliciously procures an injury to be done to another, whether an actionable wrong or a breach of contract, is a joint wrongdoer and may be subject to an action either alone or jointly with the person who actually committed the injury.” (quoting O.C.G.A. § 51-12-30)).

Because the Supreme Court of Georgia and this Court have both clearly held that the notary public statutes do not create a private cause of action, the district court properly dismissed Wright’s claim.6

B. Georgia RICO Act

Next, Wright argues that the district court applied the wrong statute of limitations to his Georgia RICO Act claim.

Under the Georgia RICO Act, “[n]otwithstanding any other provision of law, a criminal or civil action or proceeding under this chapter may be commenced up until five years after the conduct in violation of a provision of this chapter terminates or the cause of action
accrues.” O.C.G.A. § 16-14-8 (2011)7;

See Glock, Inc. v. Harper, 796 S.E.2d 304, 306 (Ga. Ct. App. 2017).

The district court applied this five-year statute of limitations and found that Wright’s claim was “over three (3) years late” because “the most recent action taken by [Truist] relevant to this claim was on May 3, 2011, when it foreclosed on the last of the collateral properties.”8

Wright argues that his Georgia RICO Act claim is subject to the twenty-year statute of limitations of O.C.G.A. § 9-3-23 instead, because the claim arises out of conduct related to the execution of sealed instruments.9

This argument fails for two reasons.

First, the Georgia RICO Act states that the five-year statute of limitations applies “[n]otwithstanding any other provision of law.”10 O.C.G.A. § 16-14-8 (2011).

In his reply brief, Wright argues that “[t]he word ‘notwithstanding’ does not mean that no other rule could apply” and that nothing in the statute “prevent[s] a party from availing itself of a more liberal rule of law such as O.C.G.A. § 9-3-23.”11

But “notwithstanding” means: “Despite; in spite of.” Notwithstanding, Black’s Law Dictionary (11th ed. 2019).

Thus, we conclude that O.C.G.A. § 16-14-8 (2011) supplies the exclusive statute of limitations for Wright’s Georgia RICO Act claim. Because Wright did not file his claim within five years of May 3, 2011, the district court properly dismissed it.

Second, Wright’s expansive interpretation of the twenty-year statute of limitations for sealed instruments has been rejected by the Supreme Court of Georgia.

In Harris v. Black, the Supreme Court of Georgia held that “if suit is brought upon an official bond under seal, for a breach thereof,” then the twenty- year statute of limitations applies. 85 S.E. 742, 747 (Ga. 1915).

But “if the action is brought against the officer individually, and not upon his bond, different periods of limitations may apply according to whether the action sounds in tort or in contract; and if the former, the limitation is dependent upon the particular character of the tort.” Id.

Because Wright’s Georgia RICO Act claim is not a claim “upon an official bond,” it is not subject to the twenty-year statute of limitations of O.C.G.A. § 9-3-23 and was properly dismissed.

6 Even if O.C.G.A. § 45-17-8(d) created a private cause of action for breach of duty by a notary public, Wright’s claim would still fail because he did not meet the four-year statutes of limitations for injuries to realty or personalty under O.C.G.A. §§ 9-3-30 and 9-3-31. See, e.g., Godwin v. Mitzpah Farms, LLLP, 766 S.E.2d 497, 507 (Ga. Ct. App. 2014).

7 O.C.G.A. § 16-14-8 was amended in 2015. Because the amendment was not retroactive, see Glock, Inc. v. Harper, 796 S.E.2d 304, 306 (Ga. Ct. App. 2017), we will apply the version of the statute that was in effect at the relevant time.

8 Wright does not dispute that the statute of limitations on his Georgia RICO Act claim began to run on May 3, 2011.

9 See O.C.G.A. § 9-3-23 (“Actions upon bonds or other instruments under seal shall be brought within 20 years after the right of action has accrued.”).

10 Even though the district court dismissed Wright’s Georgia RICO Act claim based on O.C.G.A. § 16-4-8—the applicable statute of limitations—Wright did not discuss the statute at all in his opening brief.

C. Punitive Damages and Attorney’s Fees

Wright acknowledges that his claims for punitive damages and attorney’s fees must fail if his substantive claims are dismissed.

Because we affirm the district court’s dismissal of his substantive claims, we also affirm its dismissal of his claims for punitive damages and attorney’s fees.

See generally Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1304–05 (11th Cir. 2009).

III. Sanctions

A. Wright’s Motion for Sanctions

Wright argues that we should strike certain language in Truist’s motion for sanctions for being ad hominem and requests sanctions for Truist’s decision to include that language in its motion.

In particular, he contends that it was inappropriate for Truist to mention that Nathan had been sanctioned by this Court for a frivolous appeal or that Truist had obtained a multi-million-dollar judgment against Nathan.

Truist’s motion for sanctions was based, in part, on 28 U.S.C. § 1927.

To prevail on its claim for sanctions under § 1927, Truist was required to “show subjective bad-faith.” Hyde v. Irish, 962 F.3d 1306, 1310 (11th Cir. 2020).

“This standard can be met either (1) with direct evidence of the attorney’s subjective bad faith or (2) with evidence of conduct so egregious that it could only be committed in bad faith.” Id. (quotation omitted);

See Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1242 (11th Cir. 2007) (“A determination of bad faith is warranted where an attorney knowingly or recklessly pursues a frivolous claim or engages in litigation tactics that needlessly obstruct the litigation of non-frivolous claims.” (quotation omitted)).

The facts that Nathan had been sanctioned by this Court for a frivolous appeal and that Truist had obtained a multi-million-dollar judgment against him are clearly relevant to whether Nathan “knowingly or recklessly pursue[d] a frivolous claim.” Amlong, 500 F.3d at 1242.

And because these facts were relevant to Truist’s claims, we decline to strike or seal Truist’s motion or the related filings.

See 11th Cir. R. 25-6 (suggesting that a paper filed with the court may contain arguably ad hominem language where it is “relevant, necessary, and appropriate”).

Because we conclude that it was not inappropriate for Truist to mention these facts, we deny Wright’s request for us to award sanctions.

To award sanctions under our inherent powers, we “must find that the lawyer’s conduct ‘constituted or was tantamount to bad faith.’” Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1320 (11th Cir. 2002) (quotation omitted).

In Thomas, we awarded sanctions where the lawyer made:

“(1) insulting remarks about opposing counsel’s physical traits and demeanor,

(2) comments that called into question opposing counsel’s fitness as a member of the bar,

(3) thinly veiled threats aimed at opposing counsel,

(4) a racial slur, and

(5) unsubstantiated claims that opposing counsel was a racist.”

Id. at 1323.

Unlike the lawyer in Thomas, Truist did not engage in conduct “tantamount to bad faith.”

As already discussed, Truist’s mention of the facts that Nathan had been sanctioned by this Court and that Truist had obtained a multi-million-dollar judgment against him was not inappropriate because it was relevant to Truist’s claims under § 1927.

11 Ordinarily, we do not consider an argument raised for the first time on reply.

Mamone V.United States, 559 F.3d 1209, 1210 n.1 (11th Cir. 2009).

But we will address Wright’s argument here to demonstrate that it is frivolous.

B. Truist’s Motion for Sanctions

Truist argues that Wright’s appeal is frivolous and requests that we award attorney’s fees and double costs under Federal Rule of Appellate Procedure 38.

Wright argues that his appeal is not frivolous—specifically, that “[t]he two enumerations of error in this case are essentially issues of first impression in this Court . . . and have not been fully addressed or settled by any Georgia Appellate Court.”

We may impose sanctions under Rule 38 against a party who “raises clearly frivolous claims in the face of established law and clear facts.”

Parker v. Am.Traffic Sols., Inc., 835 F.3d 1363, 1371 (11th Cir. 2016) (quotation omitted);

See Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1359 (11th Cir. 2018).

“[A] claim is clearly frivolous if it is utterly devoid of merit.”

Parker, 835 F.3d at 1371 (quotation omitted).

When determining whether to award sanctions, we may review the “continuous series of events . . . which gave rise to this appeal.”

Bonfiglio v. Nugent, 986 F.2d 1391, 1393 (11th Cir. 1993).

Wright filed a complaint containing at least four counts that were barred by the applicable statutes of limitations, a conclusion that he does not challenge on appeal.

Then, on appeal, he raised two arguments that were directly foreclosed by precedent from the Eleventh Circuit and the Supreme Court of Georgia, and by the plain language of O.C.G.A. § 16-14-8 (2011).

See Bonfiglio, 986 F.2d at 1394 (awarding sanctions where the appellant “stubbornly filed [an] appeal in which he repeate[d] to this Court the utterly frivolous contentions he made in the district court”).

Finally, when Truist filed a motion for sanctions based on this conduct, Wright filed a meritless motion to strike and for sanctions.

Wright’s arguments on appeal were devoid of merit because Anthony I and Anthony II clearly establish that the notary public statutes do not create a private cause of action and because O.C.G.A. § 16-14-8 (2011) clearly establishes a five- year statute of limitations for Georgia RICO Act claims.

More egregiously, Wright did not even mention O.C.G.A. § 16-14-8 (2011)—the applicable statute of limitations, which the district court relied on to dismiss his Georgia RICO Act claim—in his opening brief.

Instead, he waited until his reply brief to argue that O.C.G.A. § 16-14-8 (2011) does not apply here because “[t]he word ‘notwithstanding’ does not mean that no other rule could apply.”

This argument is utterly devoid of merit and Wright has provided no non-frivolous argument why the Georgia RICO Act’s five-year statute of limitations does not bar his Georgia RICO Act claim.

Thus, as a sanction, we order Wright and his counsel to pay double the costs of this appeal, as well as reasonable attorney’s fees to Truist.

See Bonfiglio, 986 F.2d at 1394;

See Taiyo Corp. v. Sheraton Savannah Corp., 49 F.3d 1514, 1515 (11th Cir. 1995) (imposing joint and several liability for Rule 38 sanctions).

“We remand this case to the district court with instructions for it to calculate and assess the attorneys’ fees and costs that [Wright and his counsel are] to pay in connection with this appeal and to order that amount paid.” Bonfiglio, 986 F.2d at 1395.

IV. Conclusion

For these reasons, we affirm the district court’s decision and remand the case to the district court to assess attorney’s fees and costs.

AFFIRMED and REMANDED.

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Appellate Circuit

Pro Se’s Appeal Judge Kenneth Marra’s Foreclosure Dismissal to 11th Cir. Drum Roll…

The Dixons allegations are conclusory, they abandoned claims on appeal and it’s futile expecting justice. Judge Marra’s Dismissal Affirmed.

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on

Judge Andrew L. Brasher Joins Three Committees, The Marra Judicial Defense Committee, The Bankers Club and the Anti-Non Prisoner League.

MAY 29, 2021

ORDERED AND ADJUDGED that the Dixons ‘ Motion Requesting Leave to File a Verified Second Amended Complaint Pursuant to FRCP Rule 15(a), Rule 19(a) & Rule 18(a) [DE 47] is granted in part and denied in part.

The Court is mindful that Plaintiffs are pro se, and is also cognizant of the policy favoring allowing pro se individuals liberal opportunities to amend.

That being said, Plaintiffs will be permitted one more opportunity to amend their complaint, but are instructed that should their claims fail to set forth the factual and legal basis for relief upon further amendment, this case will be dismissed with prejudice, and could result in the imposition of sanctions under Fed. R. Civ. P 11.

With these precautions, Plaintiffs may, on or before July 19, 2019, file a Second Amended Complaint for the following claims only: FDCPA, civil theft, and quiet title. If no pleading is filed within that time, this case will be closed for Plaintiffs failure to prosecute it.

Judge Kenneth A. Marra, S.D. Fl.

Dixon v. Green Tree Servicing, LLC, No. 19-80022-CIV MARRA/MATTHEWMAN, at *31-32 (S.D. Fla. July 3, 2019)

Roy and Blanche Dixon v. Green Tree Servicing (Ditech Financial) and Bank of America, N.A. (BANA) et al.

Before WILSON, LAGOA, and BRASHER, Circuit Judges. PER CURIAM:

Roy J. Dixon and Blanche L. Dixon (the Dixons) appeal pro se from a district court order denying them leave to amend and dismissing their claims with prejudice.

The Dixons filed a complaint against Bank of America, N.A. (BANA), and other defendants in federal district court alleging violations of the Fair Debt Collection Practices Act (FDCPA) and state-law civil theft.

The claims stemmed from BANA’s involvement in a mortgage and foreclosure dispute with the Dixons.

The district court dismissed the complaint with prejudice.

163 Rivera Ct., Royal Palm Beach, Fl.

The court also denied leave to file a third amended complaint, which included a new state-law civil theft claim and an implied damages claim under 42 U.S.C. § 1983.

Previously, the district court had also dismissed a Racketeer Influenced and Corrupt Organizations Act (RICO) claim for failure to state a claim.

The Dixons appealed.

On appeal, the Dixons argue that they properly removed their state foreclosure action to the district court; that the doctrine of fraudulent concealment delayed the running of the statute of limitations for their claims; and that they sufficiently alleged RICO, civil theft, and implied independent damages claims.

BANA filed a motion to strike portions of the Dixons’ appendix to their reply brief, which the Dixons opposed. After briefing was complete, the Dixons filed a motion to supplement the record.

We first consider whether the district court erred by determining that the Dixons had not initiated a removal case.

Then, we consider—with respect to each remaining claim—whether the district court erred by denying the Dixons’ motions to amend their complaint as futile and dismissing their case with prejudice.

Finally, we consider the pending motions.

I. Removal

We begin with the question of removal. A defendant may remove any civil action brought in state court to a federal district court that has original jurisdiction over the action. 28 U.S.C. § 1441(a).

To remove a civil action pending in state court, a defendant must file a notice of removal in the district court “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” Id. § 1446(a), (b)(1).

If a case was not removable based on the initial pleadings, the defendant may file a notice of removal “within thirty days after receipt by the defendant, [of a document] from which it may first be ascertained that the case is . . . or has become removable.” Id. § 1446(b)(3).

The notice of removal must contain “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” Id. § 1446(a).

Once the defendant has complied with the requirements for removal, the action is removed “and the State court shall proceed no further unless and until the case is remanded.” Id. § 1446(d).

We review de novo a district court’s removal jurisdiction. McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1241 (11th Cir. 2013) (per curiam). The removing party bears the burden of proving that removal jurisdiction exists. Id.

Here, the district court properly found that this was not a removal case because the Dixons did not remove a case from state court to federal court.

As the district court explained in its April 29, 2019, order, the Dixons filed an original action in the district court when they filed a complaint alleging two causes of action.

They did not file a notice of removal, make a short and plain statement of the grounds for removal, or file a copy of all process, pleadings, and orders served upon them in the relevant state action. See § 1446(a), (b)(3).

The Dixons attached a “Notice of Removal” to their first amended complaint in the district court. That so-called Notice of Removal does not change the result here because the notice was a nullity.

Accordingly, there was no removal to challenge or remand.

And even if that notice is considered to be a “removal,” it would have been subject to remand upon a motion by a defendant because it was blatantly untimely—it was filed more than three years after the state foreclosure action began.

Therefore, we affirm the district court’s findings on removal.

II. FDCPA and Civil Theft

The district court dismissed the Dixons’ FDCPA claim on the grounds that the Dixons did not allege sufficient facts to support their claim and that their allegations were time barred.

The court similarly dismissed the Dixons’ civil theft claim for failure to allege sufficient facts.

The district court also denied as futile the Dixons’ motion for leave to add a new claim for civil theft against additional defendants:

Fannie Mae, and a law firm and an attorney both involved in the state court action.

The Dixons argue on appeal that the dismissals of the FDCPA and civil claims and denial of the motion to amend constituted an abuse of discretion by the district court.

Specifically, they contend that they sufficiently alleged specific facts to support their claims, and, with respect to the FDCPA claim, the doctrines of fraudulent concealment and equitable tolling tolled the statute of limitations.

We review de novo a district court’s grant of a motion to dismiss for failure to state a claim. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). We accept the allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Id. To withstand a motion to dismiss, a plaintiff must plead facts that are sufficient to state a claim that is “plausible on its face.” Id.

A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

A plaintiff must allege “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.

Thus, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

We generally review for abuse of discretion a district court’s decision to deny leave to amend, but we review de novo the denial of leave to amend on grounds of futility. Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 864 (11th Cir. 2017).

“An amendment is considered futile when the claim, as amended, would still be subject to dismissal.” Id.

To state a viable claim for civil theft under Florida law, a plaintiff must allege an injury resulting from the defendant’s violation of Florida’s criminal theft statute, Fla. Stat. § 812.014. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009).

Specifically, a plaintiff must allege facts plausibly showing that the defendants knowingly obtained or used, or endeavored to obtain or use, the plaintiff’s property with “felonious intent” either temporarily or permanently to

(1) deprive the plaintiff of its right to or a benefit from the property or

(2) appropriate the property to the defendant’s own use or to the use of any person not entitled to the property. Id.

An appellant abandons issues that are not “plainly and prominently” raised in his initial brief. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).

Although briefs filed by pro se litigants are liberally construed, issues raised by these litigants for the first time in a reply brief are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).

Thus, when a party makes only passing references to an issue in the initial brief and does not devote a discrete section of the brief to the argument of that issue, the party has abandoned that issue on appeal. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

We generally will not consider an issue not raised in the district court.

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

When a district court’s judgment is based upon multiple, independent grounds, an appellant must convince us that each enumerated ground for the judgment against him is incorrect. Sapuppo, 739 F.3d at 680.

If an appellant does not properly challenge one of the grounds on which the district court based its judgment, the appellant is deemed to have abandoned any challenge to that ground, and we affirm the district court’s judgment. Id.

Here, the Dixons abandoned any argument that they properly stated their FDCPA claim by not raising the issue on appeal.

See Timson, 518 F.3d at 874.

Because this finding was an independent ground for the district court’s decision to dismiss this claim, we affirm the dismissal without reaching the question of whether the Dixons’ FDCPA claim was time barred. See Sapuppo, 739 F.3d at 680.

The Dixons also abandoned any argument that the district court erred in dismissing their civil theft claim against BANA by not plainly and prominently presenting it in their initial brief.1 See id. at 681.

The Dixons made only conclusory, passing references to this issue in their discussion of a separate issue; they did not devote a discrete section of the brief to their argument of this issue. Jernigan, 341 F.3d at 1283 n.8.

As for the Dixons’ motion for leave to add a new claim for civil theft against Fannie Mae, a law firm, and an attorney, the district court properly denied the motion as futile.

The Dixons did not assert sufficient facts to plausibly support this claim, even after multiple attempts and discrete instructions from the district court on how to generally plead a civil theft claim. See Hunt, 814 F.3d at 1221.

Rather, the Dixons recited the elements of a civil theft claim with only conclusory allegations to support their claim. See id.; Davila, 326 F.3d at 1185.

Accordingly, we affirm the district court’s dismissal of the Dixons’ FDCPA and civil theft claims and the court’s denial, as futile, of the Dixons’ motion for leave to amend their complaint to add a new civil theft claim.

1 In their opening brief, the Dixons argue that their “Final Verified Third Amended Complaint” sufficiently alleges a civil theft claim and that “[t]he District Court exercised an abuse of discretion in dismissing the DIXONS Civil Theft claim with prejudice.” While they provide arguments in support of allowing the third amended complaint, that complaint does not bring a civil theft claim against BANA, and they provide no other discussion or argument of their civil theft claim against BANA.

III. RICO

Next we turn to the district court’s denial of the Dixons’ motion for leave to amend their RICO claim as futile. The Dixons argue that they sufficiently pled a RICO claim. They argue that BANA is an enterprise that is separate from its codefendants and that the defendants committed extortion, mail fraud, and wire fraud by selling the Dixons’ home and appropriating the funds to Fannie Mae.

The Dixons also argue that they justifiably relied on the defendants’ unlawful acts of extortion and that their injury was caused by the defendants’ commission of the predicate acts of extortion, mail fraud, and wire fraud.

Finally, the Dixons argue that the district court should have allowed their RICO claim to proceed under the doctrine of fraudulent concealment.

RICO provides for civil and criminal liability against any person who conducts the affairs of an enterprise “through a pattern of racketeering activity or collection of unlawful debt.” See 18 U.S.C. §§ 1962(c), 1964.

“A RICO enterprise exists where a group of persons associates, formally or informally, with the purpose of conducting illegal activity.”

Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1264 (11th Cir. 2004) (internal quotation marks omitted).

However, this enterprise must be distinct from any person named in a RICO claim. United States v. Goldin Indus., Inc., 219 F.3d 1268, 1271 (11th Cir. 2000) (en banc).

To establish a pattern of racketeering activity, plaintiffs must show that: “(1) the defendants committed two or more predicate acts within a ten-year time span; (2) the predicate acts were related to one another; and (3) the predicate acts demonstrated criminal conduct of a continuing nature.” Jackson, 372 F.3d at 1264 (emphasis omitted).

Thus, the plaintiffs “must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989).

“Racketeering activity” includes any act which is indictable under the exhaustive list of criminal offenses outlined in 18 U.S.C. § 1961(1). This list of predicate acts includes extortion, as defined in 18 U.S.C. § 1951; wire fraud, as defined in 18 U.S.C. § 1343; and mail fraud, as defined in 18 U.S.C. § 1341. Id.§ 1961(1).

Under RICO, an “unlawful debt” is defined as a debt incurred in illegal gambling activity or a debt that charges a usurious interest rate. Id. § 1961(6).

Finally, Federal Rule of Civil Procedure 9(b) provides that a party alleging fraud “must state with particularity the circumstances constituting fraud” but that “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).

We have explained:

Rule 9(b) is satisfied if the complaint sets forth (1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.

Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008) (internal quotation marks omitted).

Here, the district court properly denied the Dixons’ motion for leave to amend their civil RICO claim as futile.

The Dixons did not allege sufficient facts to support a plausible finding that there was a RICO enterprise, a pattern of racketeering activity, or the collection of an unlawful debt.

The Dixons alleged only conclusory statements that the defendants associated with BANA in furtherance of an illegal scheme; that is not sufficient to show the existence of a RICO enterprise. See Davila, 326 F.3d at 1185.

Their general allegations of mail fraud and wire fraud also do not satisfy the heightened Rule 9(b) pleading requirements. See Mizzaro, 544 F.3d at 1237. Additionally, BANA could not be a RICO enterprise because it was a party named in the RICO claim. See Goldin Indus., Inc., 219 F.3d at 1271.

Even if they amended their complaint, the Dixons’ RICO claim would still be subject to dismissal because they alleged only the loss of their own home—they did not plausibly allege criminal conduct of a continuing nature. See Jackson, 372

F.3d at 1264. Accordingly, we affirm the district court’s denial of the Dixons’ motion for leave to amend their civil RICO claim as futile.

IV. Implied Damages

The district court also denied the Dixons’ motion for leave to add an implied independent damages claim under 42 U.S.C. § 1983 as futile.

On appeal, the Dixons argue that they sufficiently alleged the claim against the attorneys involved in their state foreclosure action.

To state a claim under § 1983, a plaintiff must allege sufficient facts to establish that he or she was “deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).

A private party may be considered a state actor for purposes of § 1983 only in “rare circumstances.”

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001).

“[O]ne who has obtained a state court order or judgment is not engaged in state action merely because it used the state court legal process.”

Cobb v. Ga. Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985).

Here, to the extent that the Dixons sought to assert an independent claim for damages under § 1983, the district court properly denied them leave to add the claim.

The conduct of the attorneys involved in the Dixons’ state foreclosure action in obtaining a state-law judgment against the Dixons does not constitute state action, and the Dixons did not sufficiently assert that these attorneys were acting under the color of state law.

Accordingly, we affirm the district court’s denial of the Dixons’ motion for leave to add an implied independent damages claim as futile.

V. Motions

Finally, we address the pending motions in this case.

A. Motion to Strike

BANA moved to strike portions of the Dixons’ reply brief appendix, specifically Appendices C, D, E, and G. The Dixons object only to the striking of Appendix G, which contains the transcript of a district court hearing in which the parties argued various motions, including the Dixons’ motion for leave to file a second amended complaint.

BANA argues that we should strike Appendix G because the Dixons never presented the transcript to the district court or made it part of the record, nor did they obtain leave from this Court before filing the document.

Appellants have the duty to order any necessary transcripts or to file a certificate stating that no transcript will be ordered within 14 days after filing the notice of appeal. Fed. R. App. P. 10(b)(1); 11th Cir. R. 10-1.

“We rarely supplement the record to include material that was not before the district court, but we have the equitable power to do so if it is in the interests of justice.”

Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 n.4 (11th Cir. 2003).
We have refused to consider supplemental material provided by a litigant who did not first request leave of court or move to supplement the record. See Ross v. Kemp, 785 F.2d 1467, 1474–75 (11th Cir. 1986).

We grant BANA’s motion to strike the appendices.

The Dixons certified that no transcripts would be ordered for their appeal and did not seek leave or move to supplement the record before filing supplemental materials with their reply brief.

See Fed. R. App. P. 10(b)(1); 11th Cir. R. 10-1; see also Ross, 785 F.2d at 1475.

Even if this transcript were properly submitted, it would not be dispositive because it does not show that the district court erred in denying the Dixons’ motion to quash the state foreclosure proceedings.

Accordingly, we grant BANA’s motion to strike Appendices C, D, E, and G to the Dixons’ reply brief.

B. Motion to Supplement

On February 22, 2021, the Dixons filed “Appellants’ Motion Seeking Leave to Supplement the Record on Appeal with Appellants’ March 27, 2019 Motion Seeking to Quash and/or an Injunction Against the State Court from Continuing with the Foreclosure Proceedings Without Jurisdiction.”
The filing attaches as an exhibit the motion to quash at issue, which appears on the district court docket at Docket Entry 36. The Dixons do not provide any basis for the request.

On February 26, 2021, BANA filed a response to the Dixons’ motion stating that it is “facially deficient” in that it articulates no ground or legal basis for supplementing the record. BANA also states that the document the Dixons seek to add to the record already is part of the record on appeal.

BANA is correct that the document the Dixons seek to add to the record already is part of the record on appeal. Thus, it is unnecessary to supplement the record with the document.

Additionally, while the motion’s title suggests that the Dixons also request “an Injunction Against the State Court from Continuing with the Foreclosure Proceedings Without Jurisdiction,” the body of the motion includes no such request and offers no support in favor of such a request.

Thus, the Dixons have not shown that an injunction is warranted. See Fed. R. App. P. 27(a)(2)(A) (“A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it.”).

Accordingly, we deny the motion.

AFFIRMED IN PART, GRANTED IN PART, DENIED IN PART.

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