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Appellate Circuit

A Chiefly Notorious 3-Panel Doubles Up On the Award of Sanctions Against a Pro Se Litigant

We order Watkins to pay double the costs, reasonable attorneys’ fees and to assess those fees and double costs against Watkins.

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The Triple Panel Doubles Up On the Pro Se

 REPUBLISHED BY LIT: SEP 18, 2021

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-11573

Non-Argument Calendar

D.C. Docket No. 1:19-cv-04345-ELR

ROBERT L. WATKINS, PRO SE

Plaintiff – Appellant,

versus

CAPITAL CITY BANK & GUARANTY,

As a defendant as it had merged with FMB, EDWARD J. TARVER,

successor in interest to Farmers and Merchants Bank,

GOODMAN, MCGUFFEY, LLP, ROBERT LUSKIN,

KEVIN C. PATRICK,

Defendants – Appellees.

Appeal from the United States District Court for the Northern District of Georgia

(September 15, 2021)

Before WILLIAM ‘SO MANY LIES’ PRYOR, Chief Judge, BERT ‘REPUTATION IS EVERYTHING’ JORDAN and BRITT ‘NO JUDICIAL OATH’ GRANT, Circuit Judges. PER CURIAM:

Robert Watkins appeals pro se the dismissal with prejudice of his complaint against and the award of attorneys’ fees and costs to his former attorney, Edward J. Tarver, Capital City Bank & Guaranty, and its counsel, Goodman McGuffey, LLP, Robert Luskin, and Kevin C. Patrick. We affirm.

Watkins abandoned any challenge he could have made to the dismissal of his complaint and to the order awarding the defendants their attorneys’ fees and costs. Despite obtaining four extensions of time from this Court and an opportunity to correct his deficient brief, Watkins chose to relabel his complaint as his initial brief.

Watkins does not dispute that his claims against all the defendants were untimely, see O.C.G.A. § 9-3-33, and barred by res judicata.

He also does not dispute that the defendants were entitled to the expenses they incurred to defend against a complaint he filed after two federal judges warned him that “continuing the pursuit of frivolous litigation may result in sanctions, injunction, and/or other appropriate relief.”

“We read briefs filed by pro se litigants liberally,” but Watkins has abandoned his opportunity to contest the dismissal of his complaint or the award of sanctions against him. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

The defendants jointly request that we sanction Watkins for pursuing a frivolous appeal. See Fed. R. App. P. 38.

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.” Id.

The defendants argue that Watkins has badgered them for almost two decades, this appeal constitutes the sixth time he has forced them to respond to “the same claims” in this Court, and this appeal “is without legal merit and presented to further harass [them] and needlessly increase the costs of litigation.”

Watkins has not responded to the motion.

Rule 38 exists “to assess just damages in order to penalize an appellant who takes a frivolous appeal and to compensate the injured appellee for the delay and added expense of defending the district court’s judgment.” Burlington N. R. Co. v. Woods, 480 U.S. 1, 7 (1987).

Watkins’s serial litigation warrants an award to the defendants for their expenses in defending this appeal. See United States v. Morse, 532 F.3d 1130, 1133 (11th Cir. 2008) (sanctioning pro se litigant).

We order Watkins to pay double the costs the defendants have incurred in this appeal and remand with instructions for the district court to calculate reasonable attorneys’ fees and to assess those fees and double costs against Watkins.

We AFFIRM the dismissal of Watkins’s complaint and the award for the defendants’ expenses in the district court, we AWARD SANCTIONS of double costs and attorneys’ fees to the defendants under Rule 38 for this appeal, and we REMAND for the district court to assess reasonable attorneys’ fees and double costs for the defense of this appeal.

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Appellate Circuit

Judge Jill Pryor on a Panel about Judicial Recusals? That’s a Contradiction, Right There.

Judge Cooke has a conflict of interest based on her financial statements, which revealed interests in companies doing business with one of the defendants.

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In the
United States Court of Appeals
For the Eleventh Circuit

No. 20-13674
Non-Argument Calendar

JAMES BUCKMAN, MAURICE SYMONETTE,

versus
LANCASTER MORTGAGE CO.,

Plaintiffs-Appellants,

DEUTSCHE BANK NATIONAL TRUST CO.,
as Trustee under the pooling and servicing agreement series rast 2006-A8,

SECURITY AND EXCHANGE COMMISSION,

U.S. TREASURY,

Defendants-Appellees,

ONE WEST BANK, et al.,

Defendants.

OCT 7, 2021 | REPUBLISHED BY LIT: OCT 7, 2021

Appeal from the United States District Court for the Southern District of Florida
D.C. Docket No. 1:19-cv-24184-MGC

Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges. PER CURIAM:

James Buckman and Maurice Symonette (“Buckman and Symonette”) appeal from the district court’s dismissal with prejudice of their second amended complaint as an impermissible shotgun pleading.

They argue that the district court erred and demonstrated bias by dismissing their case because they had filed a motion for an additional three-day extension of time and the district court provided a window for responses to the motion by the defendants, but then dismissed the case before the responses were due.1

After review, we affirm.

1 Over four months after filing their notice of appeal from the dismissal of their complaint, Buckman and Symonette filed two motions for recusal of the district court judge, arguing that she had a conflict of interest based on her financial statements, which revealed interests in companies doing business with one of the defendants. (LIF: THAT DEFENDANT WOULD BE DEUTSCHE BANK)

The district court denied the motions.

Buckman and Symonette did not file an amended or new notice of appeal following entry of that order.

Therefore, we lack jurisdiction to review the district court’s denial of the motion for recusal.

See McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986) (holding that, although we liberally construe notices of appeal under Federal Rule of Appellate Procedure 3 to include orders not expressly designated, that allowance does not extend to an order that was not entered when the notice of appeal was filed);

see also LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837–38 (11th Cir. 1998) (holding that we lacked jurisdiction over a post-judgment order awarding attorney’s fees where the motion for attorney’s fees was not filed until after the notice of appeal and the plaintiff failed to file an amended notice of appeal from the order awarding fees).

I. Background

In October 2019, Buckman and Symonette filed a pro se 45-page complaint against eight defendants including numerous banks, a mortgage company, the Security and Exchange Commission, the U.S. Treasury, and other entities, raising numerous claims including:

(1) quiet title;
(2) slander of title;
(3) unjust enrichment;
(4) violations of the Real Estate Settlement Procedures Act;
(5) fraud and concealment;
(6) violation of timely assignment and lack of consideration;
and
(7) various violations of several Florida statutes.

Thereafter, in December 2019, Buckman and Symonette filed a 51-page amended complaint asserting a total of 11 causes of action.

On July 24, 2020, the district court, sua sponte, struck the amended complaint as an impermissible shotgun pleading.

The district court set forth the pleading rules in its order, and provided that the plaintiffs had until July 31, 2020 to file a second amended complaint.

The district court emphasized that, in the second amended complaint, Plaintiffs are required to make a “short and plain statement of the claim showing that the pleader is entitled to relief . . .”

Fed. R. Civ. P. 8(a).

Plaintiffs must also state each theory of liability separately “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”

Fed. R. Civ. P. 10(b).

The newly amended complaint should clearly delineate which factual allegations and cited laws are relevant to the asserted cause of action.

This includes specifying which Defendant is liable under each cause of action and which Defendant is implicated in each factual allegation.

Failure to comply with this Order may result in the dismissal of this case with prejudice or other appropriate sanctions.

On July 31, 2020, the plaintiffs filed a motion for an extension of time to file their second amended complaint. The district court granted the motion and ordered that the second amended com- plaint be filed on or before August 6, 2020.

On August 6, 2020, the plaintiffs filed a motion seeking three more days to file their second amended complaint. On the same date, after filing their extension motion, they filed their second amended complaint.

The 92-page second amended complaint added 4 new causes of action and suffered from many of the same issues as the first amended complaint.

On August 17, 2020, the district court dismissed with prejudice the second amended complaint explaining that the second amended complaint “does not cure the defects that required striking of the initial Complaint.”

This appeal followed.2

2 Following the dismissal of their complaint, Buckman and Symonette filed a motion for reconsideration in the district court, which was denied. However, they do not raise any arguments related to the denial of their motion for re- consideration in their brief. Accordingly, the district court’s resolution of the motion for reconsideration is not before us.

II. Discussion

Buckman and Symonette argue that the district court erred and demonstrated bias when it dismissed their case with prejudice while their motion for extension of time was pending.

Specifically, they argue that the district court docketed their motion for a three- day extension of time to file the second amended complaint and set “responses due by 8/20/2020,” but then dismissed the case before that date.

They also raise arguments related to the merits of their underlying claims.

The district court did not err in dismissing the case. On the day the second amended complaint was due, Buckman and Symonette filed the request for a three-day extension of time, but they then filed a second amended complaint the same day.

The filing of the second amended complaint on the day it was due mooted the motion for an extension of time and the related re- sponse period.

Once the second amended complaint was filed, there was nothing left for the district court to do except review the complaint to determine whether the plaintiffs corrected the previously identified pleading issues.

To the extent that Buckman and Symonette’s brief could be liberally construed as challenging the district court’s dismissal of the second-amended complaint as an impermissible shotgun pleading, we review the district court’s decision for abuse of discretion.

Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)

(“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.”).

“A shotgun pleading is a complaint that violates either Federal Rule of Civil Procedure 8(a)(2) or Rule 10(b), or both.”

Barmapov, 986 F.3d at 1324.

Rule 8 requires that the complaint set forth “a short and plain statement of the claim” demonstrating an entitlement to relief, and Rule 10 requires that a plaintiff “state [his] claims in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”

Fed. R. Civ. P. 8(a)(2) and 10(b).

Rule 10 further provides that each claim be stated in separate counts “[i]f doing so would promote clarity.” Id. R. 10(b).

We have repeatedly condemned the use of shotgun pleadings.

See Barmapov, 986 F.3d at 1324; Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001).

When a plaintiff files a shotgun pleading, a district court must give him one chance to replead before dismissing his case with prejudice on shotgun pleading grounds.
Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295–96 (11th Cir. 2018).

The district court should explain how the pleading violated the shotgun rule so that the plaintiff can remedy his next pleading.

Id.

Where, as here, the plaintiff is provided fair notice of the specific defects in his complaint and a meaningful chance to fix it but fails to correct the defects, the district court does not abuse its discretion by dismissing with prejudice on shotgun pleading grounds.

Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358–59 (11th Cir. 2018).

Accordingly, the district court did not abuse its discretion in dismissing the second amended complaint with prejudice because Buckman and Symonette failed to correct the pleading defects.

Id.

Consequently, we affirm.

AFFIRMED.

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Appellate Circuit

Judge Kenneth Marra’s Random Assignment Questioned. Judge Bill Pryor Affirms.

Chief Judge Zloch had picked Judge Marra as his successor and he was entitled to do that as Chief Judge for the Southern District Court.

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Sec. & Exch. Comm’n v. Lauer, 610 F. App’x 813 (11th Cir. Apr. 21, 2015)

REPUBLISHED: AUG 27, 2021

WILLIAM PRYOR, Circuit Judge

[DO NOT PUBLISH] D.C. Docket No. 9:03-cv-80612-KAM Appeal from the United States District Court for the Southern District of Florida Before TJOFLAT, WILLIAM PRYOR, and BARKSDALE, Circuit Judges . WILLIAM PRYOR, Circuit Judge: 

Honorable Rhesa H. Barksdale, United States Circuit Judge for the Fifth Circuit, sitting by designation.

In this appeal, we must decide whether to set aside a judgment for over $60 million against Michael Lauer. In 2008, the Securities and Exchange Commission obtained the judgment against Lauer on the basis of violations of multiple securities laws.

Lauer appealed the judgment to our Court and we affirmed.

Sec. & Exch. Comm’n v. Lauer, 478 F. App’x 550, 558 (11th Cir. 2012).

Lauer then moved to vacate the judgment as void under Federal Rule of Civil Procedure 60(b)(4), and he moved to vacate the judgment under Rule 60(d)(3) for fraud on the court. The district court denied relief and Lauer’s requests for discovery.

We affirm.

I. BACKGROUND

In 2003, the Commission filed a civil enforcement action against Lauer and his management groups, Lancer Management Group, LLC, and Lancer Management Group II, LLC, and alleged that he violated numerous securities laws in his management of multiple hedge funds.

The “Request for Commission Action” form that the Commission used to initiate proceedings against Lauer was signed by four of the five commissioners, but two of those commissioners had initials signed next to their names that did not match their initials.

On the same day that it filed the complaint, the Commission moved, ex parte, for a temporary restraining order to freeze Lauer’s assets and for an order to appoint a receiver. The district court appointed the receiver, granted the restraining order, and scheduled a hearing for a preliminary injunction to enforce the same terms as the restraining order, including the asset freeze.

The hearing became unnecessary because Lauer consented to the preliminary injunction.

The district court later granted Lauer’s request to modify the asset freeze so that Lauer could sell various properties he owned, pay off any encumbrances, and remit the remaining proceeds to the receiver, who would pay all of Lauer’s outstanding legal fees and then pay Lauer $10,000 per month in living and legal expenses.

Not satisfied with this arrangement, Lauer moved to reconsider the asset freeze so that he would not have to sell any property. At the hearing on his motion, Lauer told the district court he “would prefer the court to just vacate the original order to modify [his] request,” so that he would not have to sell his house.

The district court reinstated the original asset freeze order.

Also in 2003, the British Virgin Islands Financial Services Commission began an investigation into Lauer and his hedge funds.

The Financial Services Commission hired Deloitte & Touche, an accounting firm, to prepare a report for use in litigation against Lauer and the funds. Deloitte & Touche prepared the report using “publicly available information” and documents provided by the Financial Services Commission.

The local attorney for Lauer’s hedge funds, Simon Pasco, hired Milton Barbarosh, a professional business evaluator, to analyze the Deloitte & Touche report. Barbarosh’s lawyer then told the Securities and Exchange Commission that Barbarosh was willing to work as a confidential informant. Barbarosh provided the Deloitte & Touche report to the Commission.

In 2004, Lauer moved to transfer venue from the Southern District of Florida to a district court in New York or Connecticut. The Commission opposed the motion and asserted that key witnesses would be inconvenienced by a transfer, including Barbarosh; George Levie, who allegedly produced bogus valuations for the hedge funds; and Lawrence Isaacson, who ran one of the shell corporations that Lauer manipulated.

The district court denied Lauer’s motion.

Barbarosh, Levie, and Isaacson each invoked their Fifth Amendment right against self-incrimination to avoid being deposed.

In May 2004, Lauer filed a motion to recuse Chief Judge William Zloch, 28 U.S.C. §§ 144, 455, based on the Chief Judge’s alleged “palpable predetermination of the defendant’s guilt.”

Lauer cited the Chief Judge’s comments at a hearing on the asset freeze. After Lauer had complained of the difficulty of defending the action on only $10,000 a month, the Chief Judge responded that legal processes can be difficult:

The Court: Some of these processes are painful, Mr. Lauer.

Mr. Lauer: Well, I concur, your honor. That’s why I wanted to resolve them as quickly as possible.

The Court: Are they any less painful by the way that you used your process of marking the close?

Mr. Lauer: We were not marking the close, Your Honor.

The Court: You weren’t.

Mr. Lauer: No, absolutely not. We said that under oath. And I am—as I said, I was pleading to have an early trial as early as possible—

The Court: All right.

Mr. Lauer: —so we can resolve the issue.

Lauer also argued that the Chief Judge’s consistent pattern of ruling against Lauer and his “condescending tenor” supported recusal.

Chief Judge Zloch denied the motion because Lauer failed to allege personal instead of judicial bias.

In June 2004, the case was randomly selected by the Clerk of Court for reassignment,

“to insure the fair and impartial reassignment of cases from the calendars of the respective judges of the court to the calendars of the new judges of the court.”

The case was reassigned to Judge Marcia Cooke, who had joined the court a month earlier.

Judge Cooke recused herself soon after and transferred the case back to Chief Judge Zloch, who then recused himself and referred the case to the Clerk for random reassignment.

The case was reassigned to Judge Marra.

In a declaration attached to his motion to vacate, Lauer alleges that he called Judge Marra’s chambers to find out how she had been assigned the case and that one of her law clerks told him that

“[Chief] Judge Zloch had picked Judge Marra as his successor and that he was entitled to do that as [C]hief [J]udge .”

In 2012, Lauer asked the Clerk by mail how the reassignment process happened. The Clerk confirmed that the assignment had been random.

In 2008, the district court granted summary judgment against Lauer and in favor of the Commission and ordered disgorgement, a payment of prejudgment interest, and a civil penalty.

Lauer appealed to our Court, and we affirmed the district court on all grounds.

Lauer, 478 F. App’x at 558.

In 2013, Lauer moved to vacate the judgment as void under Federal Rule of Civil Procedure 60(b)(4), and he moved to vacate the judgment due to fraud on the court based on Rule 60(d)(3).

He also moved the district court to grant an evidentiary hearing and to allow him to take discovery. The district court denied all relief.

II. STANDARDS OF REVIEW

This appeal is governed by two standards of review.

First, we review de novo the denial of a motion under Rule 60(b)(4).

Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001).

Second, we review for abuse of discretion the denial of a motion under Rule 60(d)(3) based on fraud on the court.

See Cox Nuclear Pharm., Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2007).

And we review for abuse of discretion decisions about discovery.

United States v. R&F Props. of Lake Cnty., Inc., 433 F.3d 1349, 1355 (11th Cir. 2005).

III. DISCUSSION

We divide our discussion in three parts.

First, we explain that Lauer has failed to establish that the judgment is void.

Second, we explain that Lauer has failed to establish a fraud on the court.

Third, we explain that the district court did not abuse its discretion when it denied Lauer discovery and an evidentiary hearing.

A. Lauer Fails to Establish that the Judgment is Void.

Federal Rule of Procedure 60(b)(4) provides that a court may “relieve a party or its legal representative from a final judgment” if “the judgment is void.”

Fed. R. Civ. P. 60(b)(4).

“[A] void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final. The list of such infirmities is exceedingly short . . . .”

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270, 130 S. Ct. 1367, 1377 (2010) (internal citation omitted).

“Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a . . . jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard.”

Id. at 271, 130 S. Ct. at 1377.

“[I]t is well-settled that a mere error in the exercise of jurisdiction does not support relief under Rule 60(b)(4).”

In re Optical Techs., Inc., 425 F.3d 1294, 1306 (11th Cir. 2005) (internal quotation marks and citation omitted).

And the “law is clear that Rule 60(b) may not be used to challenge mistakes of law which could have been raised on direct appeal.”

Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999).

Where a “party has been afforded a full and fair opportunity to litigate . . . the party’s failure to avail itself of that opportunity will not justify Rule 60(b)(4) relief.”

Espinosa, 559 U.S. at 276, 130 S. Ct. at 1380.

“Rule 60(b)(4) does not provide a license for litigants to sleep on their rights.”

Id. at 275, 130 S. Ct. at 1380.

And “[u]nder the ‘law of the case’ doctrine, the findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.”

Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005) (internal quotation marks and citation omitted).

Lauer makes six arguments that the judgment is void:

(1) the asset freeze unconstitutionally deprived him of the right to use his own funds to hire counsel;

(2) the Commission did not properly authorize the action against Lauer;

(3) the district court lacked subject matter jurisdiction;

(4) the Commission interfered with his attorney-client relationship;

(5) Chief Judge Zloch displayed impermissible bias;

and

(6) the entry of prejudgment interest was improper.

All of his arguments fail.

We explain each argument in turn.

1. The Asset Freeze Did Not Deny Lauer Due Process.

Lauer argues that the district court unconstitutionally denied him the use of his own funds to spend on legal counsel because it entered an injunction that froze all of his assets, but this argument fails.

We affirmed the freeze of Lauer’s assets in his earlier appeal.

See Lauer, 478 F. App’x at 554.

Although Lauer argues that we did not address his argument about a denial of due process, the law of the case “comprehends things decided by necessary implication as well as those decided explicitly.”

Transamerica Leasing, Inc., 430 F.3d at 1331 (internal quotation marks and citation omitted).

In his earlier appeal, “Lauer argue[d] that the asset freeze was improper because it did not provide for his living or litigation expenses,” but we held that the district court did not abuse its discretion.

Lauer, 478 F. App’x at 554.

If the district court had denied Lauer his right to counsel, that decision would have been an abuse of discretion.

See, e.g., Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004)

(“A district court abuses its discretion if it applies an incorrect legal standard or follows improper procedures.”) (internal quotation marks and citation omitted).

Because we rejected it already, Lauer’s argument is barred.

2. The Commission Approved the Action Against Lauer.

Lauer argues that the judgment must be vacated because the Commission never approved the action against him.

The document used to initiate the action against Lauer was signed by four out of five commissioners, with one abstaining.

But two of the commissioners had two sets of initials next to their names, and the second pair of initials did not match each respective commissioner’s initials.

Lauer argues that this irregularity proves that the action was not approved by the required majority of commissioners.

Lauer’s argument fails.

The Commission used its seriatim process to initiate the action. Under that process, the commissioners individually consider the matter and then report their votes to the Secretary.

17 C.F.R. § 200.42(a).

Lauer has pointed to no statute or regulation that requires a commissioner to use only his personal signature to report his vote.

And the minor potential irregularity does not overcome the “presumption to which administrative agencies are entitled—that they will act properly and according to law.”

Fed. Commc’n Comm’n v. Schreiber, 381 U.S. 279, 296, 85 S. Ct. 1459, 1470 (1965).

3. The District Court Had Subject Matter Jurisdiction.

Lauer argues that the district court lacked subject matter jurisdiction to decide the case, but his argument fails.

According to Lauer, the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78pp, one of the acts that Lauer violated, “does not authorize or empower the SEC to force registration, regulate or undertake enforcement actions against foreign companies, whose shares are listed exclusively on offshore exchanges.”

But Lauer admits that the Supreme Court ruled that this type of alleged defect is not jurisdictional in nature, Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 253-54, 130 S. Ct. 2869, 2876-77 (2010).

Even if Lauer could prove that the district court erred,

“a mere error in the exercise of jurisdiction does not support relief under Rule 60(b)(4),”

In re Optical Techs., Inc., 425 F.3d at 1306 (internal quotation marks and citation omitted).

4. The Commission Did Not Violate Lauer’s Due Process Rights When It Obtained the Deloitte & Touche Report.

Lauer argues that the Commission interfered with his attorney-client privilege when it enlisted Barbarosh to obtain the Deloitte & Touche report from Pasco, an attorney for the hedge funds in the British Virgin Islands, but his argument fails.

Lauer could have raised this issue in his merits appeal, but he did not do so.

The trial transcripts upon which Lauer relies were available to him during his merits appeal, and he even cited them in his reply brief before our Court.

See Scutieri v. Paige, 808 F.2d 785, 794 (11th Cir. 1987) (“Evidence that is contained in the public records at the time of trial cannot be considered newly discovered evidence.”)

Lauer was “afforded a full and fair opportunity to litigate” and cannot now seek relief under Rule 60(b)(4).

Espinosa, 559 U.S. at 276, 130 S. Ct. at 1380.

Moreover, the report that the Commission obtained was not privileged. The report was produced by an accounting firm, for the British Virgin Islands Financial Services Commission, for use in litigation against Lauer.

And the firm “based” the report “on [its] review and analysis of the documents provided by the [British Virgin Islands Commission] and took into account publicly available information.”

Even if the Commission interfered with Lauer’s attorney-client relationship, its actions were not “so outrageous” that they “constitute[d] a constitutional violation.”

United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir. 1987).

The only benefit that the Commission obtained was access to a report that was not privileged.

5. Chief Judge Zloch Did Not Impermissibly Fail to Recuse Himself or Rig the Reassignment of the Case.

Lauer argues that Chief Judge Zloch behaved impermissibly in two ways.

First, Lauer alleges that the Chief Judge should have recused himself when Lauer moved for his recusal, 28 U.S.C. §§ 144, 455.

Second, Lauer alleges that Chief Judge Zloch impermissibly influenced the reassignment of the case to Judge Marra.

Both arguments fail.

Yet again, Lauer could have raised these arguments in his merits appeal, but he failed to do so.

The relevant motions and reassignments took place years before the district court granted summary judgment in favor of the Commission.

And Lauer’s alleged conversation with Judge Marra’s clerk occurred in the same timeframe.

The only “new” evidence that Lauer includes in his motion to vacate is a series of communications with the Clerk of the District Court, in which the Clerk confirms that the process was random.

Lauer’s “failure to avail [himself] of th[e] opportunity [to litigate] will not justify Rule 60(b)(4) relief.”

Espinosa, 559 U.S. at 276, 130 S. Ct. at 1380.

Lauer’s arguments also fail on the merits.

“[A]dverse rulings alone do not provide a party with a basis for holding that the court’s impartiality is in doubt.”

United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (internal quotation marks and citation omitted).

And “bias and prejudice, to be a basis for disqualification, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.”

United States v. Clark, 605 F.2d 939, 942 (5th Cir. 1979).

The comments that Lauer cites do not suggest that Chief Judge Zloch was personally biased.

Chief Judge Zloch’s comment—

“Are they any less painful by the way that you used your process of marking the close?”

—was based on an exchange in which the Chief Judge explained to Lauer that legal processes can be difficult.

When Lauer immediately denied “marking the close,” the Chief Judge said “[y]ou weren’t . . . [a]ll right” and the hearing continued.

And Lauer has failed to establish any mishandling of the reassignment process.

Lauer argues that, despite denying his motion to recuse, Chief Judge Zloch later sua sponte recused himself “without providing a reason,” and “[j]udges don’t recuse themselves without a reason.”

But the change in judge was hardly mysterious.

The case was selected for random reassignment to a new judge to maintain a balanced workload within the district.

Judge Cooke, to whom it was reassigned, recused herself, so the case was returned to Chief Judge Zloch.

Chief Judge Zloch then recused himself so that the case would be randomly reassigned again, and this time it was Judge Marra who drew the assignment.

Lauer’s correspondence with the Clerk confirms that this process was random.

6. The Judgment is Not Void on the Basis of the Grant of Prejudgment Interest.

Lauer argues that the district court erred when it granted the Commission an award of almost $19 million in prejudgment interest because the interest was based on frozen assets to which Lauer had no access, but this argument is frivolous.

The award of prejudgment interest has nothing to do with jurisdiction or due process, and cannot be the basis of a motion under Rule 60(b)(4).

Moreover, Lauer made this argument in his merits appeal, and we rejected it.

See Lauer, 478 F. App’x at 557-58.

B. Lauer Fails to Establish that the Commission Committed a “Fraud on the Court.”

Lauer argues that we must vacate the judgment because the Commission committed a “fraud on the court” when it told the district court that it planned to call witnesses who asserted their Fifth Amendment right against self-incrimination and refused to be deposed.

Under Rule 60(d)(3), we can “set aside a judgment for fraud on the court.”

Fed. R. Civ. P. 60(d)(3).

Lauer must prove the fraud by “clear and convincing evidence.”

Booker v. Dugger, 825 F.2d 281, 283 (11th Cir. 1987).

And “[f]raud on the court is . . . limited to the more egregious forms of subversion of the legal process, . . . those we cannot necessarily expect to be exposed by the normal adversary process.”

Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir. 1985) (internal quotation marks and citation omitted)

(holding that perjury does not establish fraud on the court).

Lauer’s argument fails for two reasons.

First, Lauer could have raised this argument in his merits appeal.

The factual basis for the argument comes from transcripts from a criminal trial that took place from April to July of 2010, almost two years before our Court issued its decision in Lauer.

Second, Lauer has not established by “clear and convincing evidence,” Dugger, 825 F.2d at 283, that the Commission intentionally deceived the district court when it stated that it would call Barbarosh, Isaacson, and Levie as witnesses.

“[W]hatever else it embodies, [fraud on the court] requires a showing that one has acted with an intent to deceive or defraud the court.”

Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir. 1995).

Lauer has not established that the Commission knew that these witnesses would never testify. At best, Lauer established that the Commission had a strained relationship with Barbarosh, Isaacson, and Levie.

In August 2003, the Commission informed their attorney that it did not consider them confidential informants and that they must produce certain documents or face “appropriate action.”

Their attorney was nonplussed by the tone of the messages, but he responded that his clients still “intend[ed] to fully cooperate and remain available to assist the Commission with any and all non-privileged matters.”

And even when they invoked their Fifth Amendment rights rather than be deposed, at least two of them stated that they did so with the hope that they could still testify at a later time.

Accordingly, Lauer has failed to prove that the Commission committed a fraud on the court.

C. Lauer is Not Entitled to Additional Discovery or an Evidentiary Hearing.

Lauer argues that he should have been granted discovery on the questions whether the Commission approved the action against him and whether Chief Judge Zloch influenced the reassignment of the case to Judge Marra, but we disagree.

A district court does not “abuse its discretion both [where] it had a detailed record of the evidence before it and [where a party] did not adequately indicate how further discovery or a hearing would have aided the court’s determination.”

Scutieri, 808 F.2d at 795.

Lauer’s argument that the complaint was not properly approved runs counter to the presumption that an agency follows the law, see Schreiber, 381 U.S. at 296, 85 S. Ct. at 1470, and he has presented no reason to believe that additional discovery would prove otherwise.

Lauer also fails to explain what further discovery would accomplish regarding his claim of judicial bias.

Notwithstanding Lauer’s self-serving declaration, written a decade after the fact, the record evidence confirms that the process was handled correctly.

IV. CONCLUSION

We AFFIRM the denial of Lauer’s motions.

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Ala. Educ. Ass’n v. Bentley (In re Hubbard), 803 F.3d 1298 (11th Cir. Oct 14, 2015)

A panel including Marra (by designation) and Tjoflat (6 months after this case).

Heatherwood Holdings, LLC v. HGC, Inc., 746 F.3d 1206 (11th Cir. 2014). A panel including Marra (by designation) and Tjoflat.

Just barely a year later, Marra is cleared by Tjoflat and Pryor along with Barksdale.

Harrison v. Culliver, 746 F.3d 1288 (11th Cir. 2014)

Another panel including Marra (by designation) and Tjoflat.

Zann v. Deputy, No. 12-16013 (11th Cir. Aug. 16, 2013)

Another panel including Marra (by designation) and Tjoflat.

Broussard v. Maples, 535 F. App’x 825 (11th Cir. 2013)

Another panel including Marra (by designation) and Tjoflat.

United States v. Lang, 732 F.3d 1246 (11th Cir. 2013)

Another panel including Marra (by designation) and Tjoflat.

United States v. Campbell, 765 F.3d 1291 (11th Cir. 2014)

Another panel including Marra (by designation) and Tjoflat.

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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.

Published

on

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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