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To Sanction or Not to Sanction, That is the Question

Neither the show-cause nor the sanctions order squarely placed the blame for these delays on the attorneys nor to a finding of bad faith.

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Miller v. Midland Credit Managment, Inc., 11th Cir, 20-13390, Sep 17, 2021

When you look up Attorney Daniel Zemel in Florida, he’s disbarred. The Daniel Zemel in this case is in NJ and in good standing, but the question remains, is this the same attorney or did the normal procedure of Bar reciprocal discipline slip through the net in this instance? Contact LIF if you have any information.

REPUBLISHED BY LIT: SEP 17, 2021

(September 17, 2021)

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

Attorneys Daniel Zemel and Brian Giles appeal from the district court’s order imposing sanctions on them, arising out of their representation of plaintiff Deondra Miller in the district court.

On appeal, the attorneys argue that the district court abused its discretion in sanctioning them:

(1) by not providing sufficient notice before issuing sanctions;

(2) by basing its decision on insufficient evidence and failing to make a finding of bad faith;

and

(3) by ignoring evidence the attorneys presented in denying their motion for reconsideration.

After careful review, we vacate and remand the order imposing sanctions.

The relevant procedural background is this. In 2019, Deondra Miller filed a class action complaint against Midland Credit Management, Inc. (“Midland”), asserting violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.

Pursuant to a pretrial scheduling order referring the case to mediation, the mediation should have been conducted by June 4, 2020. Because that deadline had passed and the record did not reflect that a mediation had occurred, the district court directed the parties to file a status report.

On June 12, 2020, the parties filed a status report explaining that they had scheduled a mediation for June 16, 2020. In a subsequent order, the district court noted that the parties did not “address why despite their diligence, [they] have been unable to mediate by the mediation deadline.” But the court entered a “limited” extension of the mediation deadline to June 16 and ordered the parties to file a mediation report by the next day. The court also instructed the parties to explain any further requests to extend the mediation deadline.

On June 16, the mediator filed a report explaining that while Miller’s attorneys had appeared, she did not, so the mediation could not proceed. The next day, Midland filed a status report and requested that the district court enter sanctions against Miller for her failure to appear. Attorney Zemel also filed a status report that day, noting that he did not know why Miller did not appear at the mediation. He said that the last communication his office had had with Miller was on June 14, when Miller confirmed that she would be attending the mediation, and that despite his attempts to reach her, he had not heard back from her.

On June 19, the district court entered an order to show cause why Miller failed to appear at the mediation. In it, the court also ordered Miller’s counsel to “address whether they have regained contact with their client,” noting that “representation requires communication.” The court explained that while its order “may seem harsh in isolation,” there were many other examples of Miller’s “lack of diligence” in prosecuting the case. On June 22, Miller responded to the order to show cause, noting that counsel had regained contact with her. She explained that she did not attend the mediation because she was relieved of duty from work three hours late, and could not access her phone to inform her attorneys of this unexpected issue.

On June 25, 2020, the district court imposed sanctions on Miller and her attorneys. After discussing the reasons for the imposition of sanctions against Miller (who does not join in this appeal), the district court said:

H]ad I not entered the Order to Show Cause . . . there is no indication that [Miller] or her counsel would have made known to the Court the circumstances surrounding her failure to appear. Counsel should have made a prompt and reasonable investigation into [Miller’s] failure to appear and immediately informed the Court of the reasoning for the same. Counsel did not. This led to my entry of the Order to Show Cause and it was only then that Counsel investigated and discovered the circumstances surrounding [Miller’s] failure to appear.

The parties settled the lawsuit. However, Zemel and Giles requested the court to reconsider its sanctions order. The motion detailed counsel’s efforts to reach Miller from June 16 to June 22, 2020. The court denied the motion, finding that “counsel [did] not provide any new argument or evidence that would justify granting the requested relief.” This timely appeal followed.

We review a district court’s decision to impose sanctions under its inherent powers for abuse of discretion. Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1237–38 (11th Cir. 2007). That standard requires us to affirm unless we find that the district court made a clear error of judgment or applied the wrong legal standard. Id. at 1238. “A decision that is contrary to the law plainly is an abuse of discretion.” Id.

“A court may impose sanctions for litigation misconduct under its inherent power.” Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir. 2009). The inherent power is “vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”      Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quotations omitted).

However, this power “must be exercised with restraint and discretion.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). Thus, when a district court is imposing sanctions under its inherent power, it must “comply with the mandates of due process.” Chambers,501 U.S. at 50. In this context, “[d]ue process requires that the attorney (or party) be given fair notice that his conduct may warrant sanctions and the reasons why. Notice can come from the party seeking sanctions, from the court, or from both.” In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995) (citation omitted). The court is also required to give the attorneys “an opportunity to respond, orally or in writing, to the invocation of such sanctions and to justify [their] actions.” Id. at 1575–76.

Here, the record indicates that the district court did not provide attorneys Zemel and Giles with fair notice that it was considering imposing sanctions against them for their client’s failure to appear at the mediation. For starters, the pretrial scheduling order referring the case to mediation warned that “[t]he Court may impose sanctions against parties or counsel who do not comply with” mediation requirements. But Miller’s attorneys attended the mediation; only Miller herself did not. Then, after Miller did not attend the scheduled mediation, Midland requested the court to sanction Miller for her failure to appear. The motion notably did not mention sanctions against Miller’s attorneys.

Nor did the district court’s subsequent order to show cause constitute fair notice of possible sanctions against the attorneys. The order directed Miller to show cause why she failed to appear at the mediation, but only ordered counsel to “address whether they have regained contact with their client.” The only other comments specifically directed at counsel noted that: “Representation requires communication. Plaintiff’s counsel cannot continue to represent Plaintiff if she has abandoned their representation and more generally this lawsuit.” The order concluded by again directing counsel only to “indicate on the record whether they have regained contact with their client.” There is simply no support for Midland’s argument that these few sentences put Miller’s attorneys on notice about the possibility of sanctions against them, nor that the order’s general discussion of Miller’s lack of diligence throughout the litigation did so either.

Indeed, in Miller’s response to the show-cause order, her lawyer Zemel said that he “has regained contact with his client,” but did not address any potential sanctions against the attorneys themselves. The response instead focused on why Miller did not attend the mediation, and asked the district court to decline to impose sanctions on Miller alone.

Thus, reading the record as a whole, it appears that the parties believed that the district court was considering imposing sanctions against Miller, but not against her counsel. As a result, we do not think that Zemel and Giles were given a meaningful opportunity to respond to that possibility. See United States v. Shaygan, 652 F.3d 1297, 1318 (11th Cir. 2011) (“The district court conducted an inquiry, not an adversarial hearing, and both [attorneys] were denied a meaningful opportunity to be heard in that proceeding.”). “We express no view about whether the district court should conduct further proceedings” — and readily acknowledge that it was within the district court’s purview to consider sanctions against counsel in this context — “but if the district court decides again to consider sanctions against [Zemel and Giles], it must, of course, afford them due process.” Id. at 1319. As we see it, the district court has not yet done so.

Moreover, if a district court decides to impose sanctions, a finding of bad faith is required.

See Chambers, 501 U.S. at 49 (recognizing that “invocation of [sanctions under] the inherent power would require a finding of bad faith”); see also Wilson v. Citigroup, N.A., 702 F.3d 720, 724 (2d Cir. 2012) (“Our case law is clear that a district court may not impose attorney’s fees as a sanction without first making an explicit finding that the sanctioned party . . . acted in bad faith in engaging in the sanctionable conduct.”); Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997) (“Before awarding sanctions under its inherent powers, however, the court must make an explicit finding that counsel’s conduct ‘constituted or was tantamount to bad faith.’” (quoting Roadway Exp., 447 U.S. at 767)).

A finding of bad faith is warranted where a party delays or disrupts the litigation.   Barnes v.Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998).

Here, when addressing the attorneys in the sanctions order, the district court said only that they “should have made a prompt and reasonable investigation into [Miller’s] failure to appear and immediately informed the Court of the reasoning for the same.” Importantly, however, the court did not make the requisite finding of bad faith before imposing the sanctions.

See Roadway Exp., 447 U.S. at 767 (“[T]he trial court did not make a specific finding as to whether counsel’s conduct in this case constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court’s inherent powers.”).

Nor did the district court mention bad faith or cite the bad-faith standard from the Supreme Court or our Court. Cf. Metz v. Unizan Bank, 655 F.3d 485, 490 (6th Cir. 2011). We recognize that the court mentioned in the show-cause order that the plaintiff had been “far from diligent in this litigation,” perhaps attributing Miller’s delays to her attorneys. But neither the show-cause order nor the sanctions order squarely placed the blame for these delays on the attorneys nor did they tie them to a finding of bad faith. It’s also worth noting that, as best we can tell, counsel did inform the district court the day after Miller failed to attend the mediation that she had not appeared; that counsel did not know why Miller had not appeared; and that counsel had been unable to reach her despite several attempts to inquire why.

On this record, “we cannot glean . . . whether [the district court’s] outrage [at Miller’s attorneys] stemmed from a belief that [the] attorneys acted in bad faith, or whether it was due to a belief that they acted negligently or without due diligence.” Mroz, 65 F.3d at 1576; see also Primus, 115 F.3d at 649. It may be that the district court’s imposition of sanctions was based on a finding of bad faith and was supported by the record. At this time, however, we cannot make this determination.

Accordingly, we vacate the court’s order imposing sanctions and remand.1

VACATED AND REMANDED.

1 Because we resolve the case on this ground, we need not address Zemel and Giles’s argument about the motion for reconsideration.

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U.S. District Court
Southern District of Florida (West Palm Beach)
CIVIL DOCKET FOR CASE #: 9:19-cv-81660-DMM

Miller v. Midland Credit Managment, Inc.
Assigned to: Judge Donald M. Middlebrooks
Referred to: Magistrate Judge Dave Lee Brannon

Case in other court:  20-13390-GG

Cause: 15:1692 Fair Debt Collection Act

Date Filed: 12/11/2019
Date Terminated: 07/07/2020
Jury Demand: Plaintiff
Nature of Suit: 480 Consumer Credit
Jurisdiction: Federal Question
Plaintiff
Deondra Miller
individually, and on behalf of all other similarly situated consumers,
represented by Daniel Zemel
Zemel Law LLC
1373 Broad Street, Suite 203-C
Clifton, NJ 07013
862-227-3106
Email: dz@zemellawllc.com
PRO HAC VICE
ATTORNEY TO BE NOTICEDBrian Thomas Giles
The Law Offices of Brian T. Giles, LLC
1470 Apple Hill Road
Cincinnati, OH 45230
513-379-2715
Fax: 513-562-8822
Email: Brian@gileslenox.com
ATTORNEY TO BE NOTICED
V.
Defendant
Midland Credit Managment, Inc. represented by Cory William Eichhorn
Holland & Knight LLP
701 Brickell Avenue
Suite 3300
Miami, FL 33131
305-374-8500
Fax: 305789-7799
Email: cory.eichhorn@hklaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDPhilip E. Rothschild
Holland & Knight
515 E Las Olas Boulevard
Suite 1200
Fort Lauderdale, FL 33301
954-468-7881
Email: phil.rothschild@hklaw.com
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
06/22/2020 51 RESPONSE TO ORDER TO SHOW CAUSE re 49 Order to Show Cause,, Order Referring Case to Magistrate Judge,, Set/Reset Deadlines/Hearings, by Deondra Miller. (Giles, Brian) (Entered: 06/22/2020)
06/24/2020 52 REPLY to Response to Motion re 47 MOTION for Leave to File Sur Reply23 MOTION for Summary Judgment and Incorporated Memorandum of Law filed by Deondra Miller. (Giles, Brian) (Entered: 06/24/2020)
06/24/2020 54 REPLY (Sur-Reply) to 32 Response in Opposition to Motion by Deondra Miller.See image at DE 52 (lk) (Entered: 06/25/2020)
06/25/2020 53 Order Imposing Sanctions. If no resolution is reached, Defendant SHALL FILE an affidavit, by 7/6/2020. Signed by Judge Donald M. Middlebrooks on 6/25/2020. See attached document for full details. (jbs) (Entered: 06/25/2020)
06/25/2020 55 Clerks Notice to Filer re 52 Reply to Response to Motion. Wrong Event Selected; ERROR – The Filer selected the wrong event. The document was re-docketed by the Clerk, see [de#54]. It is not necessary to refile this document. (lk) (Entered: 06/25/2020)
06/25/2020 56 PAPERLESS MINUTE ENTRY for proceedings held before U.S. Magistrate Judge Dave Lee Brannon: Settlement Conference held on 6/25/2020 via Zoom Video Conference. Plaintiff present with her counsel, Daniel Zemel, Esq. || Defendant’s corporate representative/counsel, Matthew Jubenville, Esq., present with defense counsel, Cory Eichhorn, Esq. Negotiations held. CASE SETTLED IN FULL. Final terms of settlement announced on the record and confirmed by all parties present. Final dismissal documents to be filed within 10 days of today’s date. (Zoom Video Recording Start Time: 10:15 A.M. || Time in Court: 3 hrs. 5 mins.) (jrz) (Entered: 06/25/2020)
06/25/2020 57 PAPERLESS ORDER. According to a minute entry from the settlement conference conducted by Judge Brannon, the Parties have settled this lawsuit. (DE 56). I congratulate the Parties on reaching an amicable resolution of this case. Consistent with Judge Brannon’s instruction and the Pretrial Scheduling Orders instructions (DE 11 at 7) closing documents to be submitted within 10 days, meaning they are due on or before July 6, 2020. The Court will retain jurisdiction to enforce the terms of the Parties’ settlement agreement if requested to do so before closing the case. The Parties are advised that the Notice of Settlement does not stay this litigation, and therefore until a joint stipulation of dismissal is filed, the court will expect compliance with all pretrial deadlines. Signed by Judge Donald M. Middlebrooks on 6/25/2020. (jdr) (Entered: 06/25/2020)
07/06/2020 58 MOTION for Reconsideration re 53 Order, Set/Reset Deadlines/Hearings by Deondra Miller. (Attachments: # 1 Affidavit Declaration of Daniel Zemel, # 2 Exhibit Exhibit A to Declaration, # 3 Exhibit Exhibit B to Declaration, # 4 Exhibit Exhibit C to Declaration, # 5 Text of Proposed Order)(Giles, Brian) (Entered: 07/06/2020)
07/06/2020 59 PAPERLESS ORDER. Plaintiff has filed a Motion for Reconsideration of my order imposing sanctions against Plaintiff and her counsel. (DE 58 ). Plaintiff’s counsel requests that the order be modified so that only Plaintiff and not counsel is sanctioned. (Id.). The Parties are reminded that closing documents in this lawsuit are currently due today, July 6, 2020. (DE 56; DE 57). If requested to do so, the Court will retain jurisdiction over the motion for reconsideration before closing this case. The filing of the motion for reconsideration should not delay the Parties filing of the appropriate closing documents. Signed by Judge Donald M. Middlebrooks on 7/6/2020. (jdr) (Entered: 07/06/2020)
07/06/2020 60 STIPULATION of Dismissal With Prejudice by Midland Credit Managment, Inc. (Eichhorn, Cory) (Entered: 07/06/2020)
07/07/2020 61 ORDER CLOSING CASE. Signed by Judge Donald M. Middlebrooks on 7/7/2020. See attached document for full details. (jas) (Entered: 07/07/2020)
07/09/2020 62 RESPONSE in Opposition re 58 MOTION for Reconsideration re 53 Order, Set/Reset Deadlines/Hearings filed by Midland Credit Managment, Inc.. Replies due by 7/16/2020. (Attachments: # 1 Exhibit)(Rothschild, Philip) (Entered: 07/09/2020)
07/09/2020 63 REPLY to Response to Motion re 58 MOTION for Reconsideration re 53 Order, Set/Reset Deadlines/Hearings filed by Deondra Miller. (Giles, Brian) (Entered: 07/09/2020)
08/28/2020 64 ORDER ON MOTION FOR RECONSIDERATION denying 58 MOTION for Reconsideration re 53 Order, Set/Reset Deadlines/Hearings filed by Deondra Miller Signed by Judge Donald M. Middlebrooks on 8/28/2020. See attached document for full details. (pcs) (Entered: 08/28/2020)
09/09/2020 65 Notice of Appeal as to 53 Order, Set/Reset Deadlines/Hearings by Deondra Miller. Filing fee $ 505.00 receipt number AFLSDC-13489016. Within fourteen days of the filing date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (Giles, Brian) (Entered: 09/09/2020)
09/14/2020 66 Acknowledgment of Receipt of NOA8/9/20 from USCA re 65 Notice of Appeal, filed by Deondra Miller. Date received by USCA: 9/9/20. USCA Case Number: 20-13390-G. (hh) (Entered: 09/14/2020)
09/25/2020 67 TRANSCRIPT INFORMATION FORM by Deondra Miller re 65 Notice of Appeal,. No Transcript Requested. (Giles, Brian) (Entered: 09/25/2020)
11/17/2020 68 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Southern District of Florida certifies that the record is complete for purposes of this appeal re: 65 Notice of Appeal, Appeal No. 20-13390-GG. The entire record on appeal is available electronically. (apz) (Entered: 11/17/2020)
11/24/2020 69 ORDER of Dismissal of USCA, DISMISSED for want of prosecution because the appellant Deondra Miller failed to file an appendix within the time fixed by the rules as to 65 Notice of Appeal, filed by Deondra Miller, USCA # 20-13390-GG (hh) (APPEAL REINSTATED BY USCA ON 12/8/20) Text Modified on 12/9/2020 (hh). (Entered: 11/24/2020)
12/08/2020 70 Appeal Reinstated USCA Case Number:20-13390-GG for 65 Notice of Appeal, filed by Deondra Miller. (hh) (Entered: 12/09/2020)

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.

Published

on

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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Debt Collector

Magistrate Judge Julie S. Sneed Lined Up to Award Sanctions including Attorney Fees Against Attorney Lee Segal

Florida Federal Courts are on the run from LawsinFlorida.com but despite your games, we’re here and the people are too, watchin’.

Published

on

Florida Limited Investment Properties, Inc. v. Deutsche Bank National Trust Company, as Trustee

(8:21-cv-02130)

District Court, M.D. Florida

SEP 10, 2021 | REPUBLISHED BY LIT: SEP 28, 2021

Florida Federal Courts are really tryin’ hard to hide which case and which judge is gonna screw lawyer Lee Segal for standing up to that German Bank, the straw man known as Deutsche Bank National Trust Company, but we’re all over them and they cannot hide the corruption from the people… We support Segal.

Federal judges take note, you should be sanctioning the corrupt bank for it’s decades of deception and lies. Otherwise, you’re just part of the ochlocracy and and Outlaw in a dirty black robe.

UPDATE: OCT 7, 2021

ENDORSED ORDER: Defendant has represented that, as of September 30, 2021, Plaintiff still has not properly effected service of process on it. (Doc. # 38).

Accordingly, Plaintiff is directed to file by October 15, 2021, a status report concerning its efforts at service of process, or, if it has effected service, file proof of such service on the docket.

If Plaintiff fails to respond to this Court’s directive, the Court may issue a show-cause order pursuant to Local Rule 3.10.

Based upon its review of the record, the Court also sets aside the requirement for the parties to file a case management report at this time. If the Defendant is properly served in this case, the Court will enter an order setting a new deadline regarding that report.

Signed by Judge Virginia M. Hernandez Covington on 10/7/2021.

FL. FEDERAL COURT SWITCHES AGAIN... READ THE HISTORY, CLICK THE IMAGE

ENDORSED ORDER: Defendant Deutsche Bank National Trust Company’s Motion for Attorney’s Fees (Doc. # 33) is hereby referred to the Honorable Julie S. Sneed, United States Magistrate Judge, for the issuance of a report and recommendation, including any hearings, motions, and deadlines related thereto. Signed by Judge Virginia M. Hernandez Covington on 9/21/2021. (KMH) (Entered: 09/21/2021)

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U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:21-cv-02130-VMC-JSS

 

Florida Limited Investment Properties, Inc. v. Deutsche Bank National Trust Company, as Trustee
Assigned to: Judge Virginia M. Hernandez Covington
Referred to: Magistrate Judge Julie S. Sneed

Case in other court:  Florida Southern, 2:21-cv-14039

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 09/10/2021
Jury Demand: Both
Nature of Suit: 470 Racketeer/Corrupt Organization
Jurisdiction: Diversity
Petitioner
Florida Limited Investment Properties, Inc. represented by Lee Segal
Segal & Schuh Law Group, PL
18167 US Hwy 19 N Ste 100
Clearwater, FL 33764
727-824-5775
Fax: 888-672-7347
Email: lee@segalschuh.com
ATTORNEY TO BE NOTICED
V.
Respondent
Deutsche Bank National Trust Company, as Trustee represented by Jason H. Okleshen
Greenberg Traurig, LLP
777 S Flagler Dr Ste 300E
West Palm Beach, FL 33401-6167
561/650-7900
Fax: 561/655-6222
Email: okleshenj@gtlaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDBeth Ann Norrow
Greenberg Traurig, LLP
450 S Orange Ave Ste 650
Orlando, FL 32801
248-670-0353
Email: norrowb@gtlaw.com
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
09/10/2021 27 ORDER Granting 22 MOTION TO TRANSFER VENUE. Signed by Judge Jose E. Martinez on 9/10/2021. See attached document for full details. (cds) [Transferred from flsd on 9/10/2021.] (Entered: 09/10/2021)
09/10/2021 28 Case transferred in from District of Florida Southern; Case Number 2:21-cv-14039. File received electronically (Entered: 09/10/2021)
09/10/2021 29 TRANSFER IN from the Southern District of Florida. Case assigned to District Judge Virginia M. Hernandez Covington and Magistrate Judge Julie S. Sneed. New Case Number: 8:21-cv-2130-VMC-JSS. (JNB) (Entered: 09/10/2021)
09/10/2021 30 ENDORSED ORDER: Defendant removed this case on the basis of diversity of citizenship. Yet, the notice of removal fails to sufficiently establish Plaintiff’s citizenship. The notice of removal merely states that Plaintiff is “is a dissolved Florida limited liability company with its principal place of business in Bellaire Bluffs, Florida.” (Doc. # 1). But “a limited liability company is a citizen of any state of which a member of the company is a citizen.” Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). Thus, “[t]o sufficiently allege the citizenships of” a limited liability company, “a party must list the citizenships of all the members of the limited liability company.” Id. Accordingly, to establish that complete diversity exists, Defendant must file an amended notice of removal listing the citizenships of all the members of Plaintiff by September 17, 2021. Signed by Judge Virginia M. Hernandez Covington on 9/10/2021. (KMH) (Entered: 09/10/2021)
09/15/2021 31 NOTICE by Deutsche Bank National Trust Company, as Trustee re 1 Complaint, 30 Order; NOTICE OF REMOVAL (AMENDED). (Attachments: # 1 Exhibit A – FLIP Sunbiz Filing and Articles of Dissolution, # 2 Exhibit B – DBNTC Corp Exist Records)(Norrow, Beth) (Entered: 09/15/2021)
09/15/2021 32 ENDORSED ORDER: Counsel are directed to meet and confer, in person or by telephone, and by September 29, 2021, file a completed Case Management Report. The Court believes that six to eight months is a sufficient period of time to conduct discovery in the vast majority of cases. If the parties believe that more than eight months will be needed to complete discovery, the parties should provide the Court with a detailed explanation as to why additional time is needed and a timeline for the discovery that is planned. After the Case Management Report is filed, the Court will determine whether a Case Management Hearing is necessary before entry of a Case Management and Scheduling Order. Signed by Judge Virginia M. Hernandez Covington on 9/15/2021. (KMH) (Entered: 09/15/2021)
09/20/2021 33 MOTION for Attorney Fees by Deutsche Bank National Trust Company, as Trustee. (Attachments: # 1 Exhibit 1 – Test Cases, # 2 Exhibit 2 – DBNTC-BNYM Cases, # 3 Exhibit 3 – Docket, # 4 Exhibit 4 – Show Cause Order, # 5 Exhibit 5 – Response to Order to Show Cause, # 6 Exhibit 6 – Dismissal and Re-Filed Complain, # 7 Exhibit 7 – Affidavit of CT Corp)(Norrow, Beth) (Entered: 09/20/2021)
09/20/2021 34 NOTICE to the Courts to take judicial notice regarding 33 MOTION for Attorney Fees by Deutsche Bank National Trust Company, as Trustee. (Attachments: # 1 Exhibit 1 – Segal Filings on behalf of 4417 Rudde, # 2 Exhibit 2- Segal Filings on behalf of Ziferryn Ventures, # 3 Exhibit 3- Segal Filings on behalf of George Weber, # 4 Exhibit 4- Segal Filings on behalf of Carla Turner-Hahn, # 5 Exhibit 5- Segal Filings on behalf of Anna Lofgren, # 6 Exhibit 6 – Segal Filings on behalf of Michael and Marcia Haulsee, # 7 Exhibit 7- Segal Filings on behalf of Jacaranda)(Norrow, Beth) (Entered: 09/20/2021)
09/20/2021 35 NOTICE to the Courts to take judicial notice regarding 33 MOTION for Attorney Fees by Deutsche Bank National Trust Company, as Trustee. (Attachments: # 1 Exhibit 1 – Kaye Pinellas County Case 20-2097 Docket, # 2 Exhibit 2 – Kaye Okechobee Case 20-CA-148 Docket, # 3 Exhibit 3 – Segal Affidavit)(Norrow, Beth) (Entered: 09/20/2021)
09/21/2021 36 ENDORSED ORDER: Defendant Deutsche Bank National Trust Company’s Motion for Attorney’s Fees (Doc. # 33) is hereby referred to the Honorable Julie S. Sneed, United States Magistrate Judge, for the issuance of a report and recommendation, including any hearings, motions, and deadlines related thereto. Signed by Judge Virginia M. Hernandez Covington on 9/21/2021. (KMH) (Entered: 09/21/2021)

U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:21-cv-02130-VMC-JSS

Florida Limited Investment Properties, Inc. v. Deutsche Bank National Trust Company, as Trustee
Assigned to: Judge Virginia M. Hernandez Covington
Referred to: Magistrate Judge Julie S. Sneed

Case in other court:  Florida Southern, 2:21-cv-14039

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 09/10/2021
Jury Demand: Both
Nature of Suit: 470 Racketeer/Corrupt Organization
Jurisdiction: Diversity

 

Date Entered # Docket Text
09/21/2021 36 ENDORSED ORDER: Defendant Deutsche Bank National Trust Company’s Motion for Attorney’s Fees (Doc. # 33) is hereby referred to the Honorable Julie S. Sneed, United States Magistrate Judge, for the issuance of a report and recommendation, including any hearings, motions, and deadlines related thereto. Signed by Judge Virginia M. Hernandez Covington on 9/21/2021. (KMH) (Entered: 09/21/2021)
09/30/2021 37 ENDORSED ORDER: Pursuant to the Court’s order entered on September 15, 2021 (Doc. # 32), the parties were required to file a case management report by September 29, 2021. Based on a review of the docket, a case management report has not been filed. The parties are directed to file a case management report by October 6, 2021. Signed by Judge Virginia M. Hernandez Covington on 9/30/2021. (KMH) (Entered: 09/30/2021)
09/30/2021 38 NOTICE by Deutsche Bank National Trust Company, as Trustee re 26 Order Adopting Report and Recommendations Order on Motion to Remand Order on Motion to Strike Order on Report and Recommendations, 37 Order Notice of Lack of Service of Process on Defendant and Notice of Defendant’s Compliance with Case Management (Attachments: # 1 Exhibit A – Order Adopting Recommendation (Quashing SOP), # 2 Exhibit B – Email to Lee Segal)(Norrow, Beth) (Entered: 09/30/2021)

U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:21-cv-02130-VMC-JSS

Create an Alert for This Case on RECAP

Florida Limited Investment Properties, Inc. v. Deutsche Bank National Trust Company, as Trustee
Assigned to: Judge Virginia M. Hernandez Covington
Referred to: Magistrate Judge Julie S. Sneed

Case in other court:  Florida Southern, 2:21-cv-14039

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 09/10/2021
Jury Demand: Both
Nature of Suit: 470 Racketeer/Corrupt Organization
Jurisdiction: Diversity

 

Date Filed # Docket Text
09/30/2021 38 NOTICE by Deutsche Bank National Trust Company, as Trustee re 26 Order Adopting Report and Recommendations, Order on Motion to Remand, Order on Motion to Strike, Order on Report and Recommendations, 37 Order; Notice of Lack of Service of Process on Defendant and Notice of Defendant’s Compliance with Case Management. (Attachments: # 1 Exhibit A – Order Adopting Recommendation (Quashing SOP), # 2 Exhibit B – Email to Lee Segal)(Norrow, Beth) (Entered: 09/30/2021)
10/07/2021 39 ENDORSED ORDER: Defendant has represented that, as of September 30, 2021, Plaintiff still has not properly effected service of process on it. (Doc. # 38). Accordingly, Plaintiff is directed to file by October 15, 2021, a status report concerning its efforts at service of process, or, if it has effected service, file proof of such service on the docket. If Plaintiff fails to respond to this Court’s directive, the Court may issue a show-cause order pursuant to Local Rule 3.10. Based upon its review of the record, the Court also sets aside the requirement for the parties to file a case management report at this time. If the Defendant is properly served in this case, the Court will enter an order setting a new deadline regarding that report. Signed by Judge Virginia M. Hernandez Covington on 10/7/2021. (SGM) (Entered: 10/07/2021)
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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.

Published

on

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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• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



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