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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)

Federal Judges

You’re Too Early to Dismiss the Judicial Complaint Sayeth the All-Gal Panel at Eleventh Circuit

The magistrate judge sua sponte dismissed Makere’s complaint because, as an administrative law judge, Judge Early is entitled to absolute judicial immunity.

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Judicial Immunity Delayed Due to Hasty Dismissal

DEC 30, 2021 | REPUBLISHED BY LIT: DEC 31, 2021

Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges. PER CURIAM:

Elias Makere appeals from the district court’s dismissal of his pro se amended complaint alleging violations of his civil rights un- der 42 U.S.C. § 1983, on the ground that the defendant was entitled to absolute judicial immunity.

Makere argues that the district court erred when it sua sponte dismissed his complaint against Judge E. Gary Early—who had ruled previously against Makere in an employment discrimination case—because Makere paid the filing fee for his complaint, Judge Early had not been served process, and the district court lacked the authority to assert absolute judicial immunity on behalf of Judge Early.

After de novo review,1 we agree with Makere that the district court erred by sua sponte dismissing his complaint at this stage.2

1 The record is unclear as to what rule or statute the district court was relying upon when it sua sponte dismissed Makere’s complaint—it appears that the district court may have been proceeding under 28 U.S.C. § 1915(e)(2) or possibly Federal Rule of Civil Procedure 12(b)(6). S

ua sponte dismissals under § 1915(e)(2) or Rule 12(b)(6) are reviewed de novo.

Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003) (explaining that we review a district court’s sua sponte dismissal under § 1915(e)(2) de novo);

Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008) (explaining that we review de novo a Rule 12(b)(6) dismissal.

2 Because we vacate and remand this case due to the district court’s procedural error, we deny as moot Makere’s accompanying motion to take judicial notice of twelve public records relating to the merits of his case.

In February 2021, Makere filed a complaint in the U.S. District Court for the Northern District of Florida against Judge Early, along with an application to proceed in forma pauperis (“IFP”).

Consequently, the case was referred to a magistrate judge for further processing.3

The magistrate judge then issued an order explaining that Makere’s complaint and IFP motion could not be considered because they failed to comply with the local rules — both documents lacked the required handwritten signature and the IFP motion was not submitted on the correct form.

The magistrate judge directed the clerk’s office to send Makere the correct IFP form and ordered that Makere file an amended complaint and amended IFP motion that complied with the referenced local rules by a certain date.

The magistrate judge cautioned that “[f]ailure to comply with this

[c]ourt [o]rder may result in a recommendation of dismissal of this action.”

3 Although the record does not reflect the basis for referring the case to the magistrate judge, we presume that the district court was operating under its Local Rule 5.3, which provides that where a party files a civil action and moves to proceed IFP, “the Clerk must open the case and refer any motion for leave to proceed in forma pauperis to an assigned judge.”

N.D. Fla. Local Rule 5.3.

Furthermore, under the Local Rules, a party seeking to proceed IFP is prohibited from serving process on the defendants until the district court “enters an order authorizing” service. Id. Rule 4.1(A).

Thus, Judge Early was not served at this time.

When Makere failed to file the amended pleadings by the specified date, the magistrate judge issued a report and recommendation (“R&R”), recommending that the district court dismiss the case for Makere’s failure to comply with its prior order.

Approximately twelve days later, Makere filed an amended complaint, objected to the magistrate judge’s R&R, and, on the following day, paid the filing fee in full.

On April 9, 2021, the magis- trate judge, recognizing that Makere had filed an amended com- plaint and paid the filing fee, treated Makere’s objections to the R&R as a motion for reconsideration, which it granted, and vacated the R&R.

Later that same day, however, the magistrate judge issued a second R&R recommending that the district court sua sponte dis- miss Makere’s complaint because, as an administrative law judge, Judge Early is entitled to absolute judicial immunity.

While the magistrate judge did not reference 28 U.S.C. § 1915, presumably — as there is nothing in the record that indicates that the defendant was ever served or filed his own motion to dismiss—the magistrate judge was screening the case pursuant to § 1915, which governs in forma pauperis proceedings.4

4 Section 1915 provides that in IFP proceedings, the court:

shall dismiss the case . . . if the court determines that . . . (B) the action or appeal—(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915 (e)(2).

Although the magistrate judge did not specify the § 1915 provision under which he proceeded, his repeated references to judicial immunity suggest § 1915(e)(2)(B)(iii).

Makere objected to the second R&R, arguing that he filed an amended complaint and paid the filing fee, and that the magistrate judge failed to cite a rule or statute that authorized the sua sponte dismissal of his civil action under these circumstances.

The district court adopted the second R&R it in a one-page order over Makere’s objections and dismissed the case.

The district court erred when it dismissed this case. After paying the filing fee, Makere was not subject to 28 U.S.C. § 1915,5 and the district court could not sua sponte dismiss his case under the screening provisions of § 1915.

See 28 U.S.C. § 1915(e)(2)(B)(ii)- (iii).

Furthermore, to the extent the district court dismissed the complaint sua sponte under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim—because again it is not clear what rule or statute the district court was proceeding under—we have prohibited such dismissals where, as here, the defendant has not filed an answer (indeed, here, the defendant was never served), “and the district court failed to provide the plaintiff with notice of its intent to dismiss or an opportunity to respond.”

See American United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007); Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 527 (11th Cir. 1983).

In short, the district court erred in sua sponte dismissing the case at this preliminary stage of the proceedings.6

Accordingly, we vacate and remand the case.

VACATED AND REMANDED.

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Continue Reading

Bankers

Another Theft of Funds Case, This Time Against SunTrust Bank

Plaintiffs, domiciled in Venezuela, assert that Truist (Sunbank) was negligent in allegedly permitting fraud and theft of funds from their bank account.

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New case. Bookmark for updates.

DE LA RIVA v. SUNTRUST BANK

(1:21-cv-24412)

District Court, S.D. Florida

DEC 21, 2021 | REPUBLISHED BY LIT: DEC 24, 2021

AMENDED NOTICE OF REMOVAL1

COMES NOW Defendant, Truist Bank, formerly known as SunTrust Bank (“Truist”), by and through undersigned counsel and pursuant to the provisions of 28 U.S.C. §§ 1332, 1441 and 1446, appearing specially so as to preserve any and all defenses available under Rule 12 of the Federal Rules of Civil Procedure, any and all defenses under the federal laws of bankruptcy and specifically preserving the right to demand arbitration pursuant to contractual agreements and the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq., and hereby gives notice of the removal of this action from the Circuit Court of Miami-Dade County, Florida, to the United States District Court for the Southern District of Florida, Miami Division. In support of this notice of removal, Truist states as follows:

1 The amended notice of removal clarifies the Plaintiff’s country of domicile.

INTRODUCTION

  1. Plaintiffs, Shedir de La Riva, Claudia Gil, Adriana Gil C. and Eduardo La Riva C. (“Plaintiffs”) commenced this action by filing a complaint against Truist Bank, formerly known as SunTrust Bank, Inc. in the Circuit Court of Miami-Dade County, Florida, Case Number 2021- 025111-CA-04 (24) on or about November 12, 2021.
  2. Plaintiffs’ complaint asserts that Truist was negligent in allegedly permitting fraud and theft of funds from their bank ¶ 20.
  3. Based on these allegations, Plaintiffs seek to recover damages from Truist with in an amount exceeding $271,020.00. Compl. ¶
  4. This Court has jurisdiction over all of Plaintiffs’ claims under 28 U.S.C. § 1332, which provides federal district courts with original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000.00, and where the action is between citizens of different states. See 28 S.C. § 1332(a)(1).

A.                 The Parties are Completely Diverse.

  1. Complete diversity exists between Plaintiffs and Truist in this matter.
  2. The Plaintiffs are citizens of and domiciled in Venezuela.
  3. Truist Bank is organized under the laws of North Carolina with its principal place of business in Charlotte, North Carolina, and is a wholly-owned subsidiary of Truist Financial Corporation.
  4. Truist Financial Corporation was formed by the merger of SunTrust Banks, Inc. with and into BB&T Corporation on December 6, 2019, the merger of SunTrust Bank Holding Company into BB&T Corporation on December 7, 2019, and BB&T Corporation’s subsequent change of its name to Truist Financial Corporation (also on December 7, 2019). On December 7, 2019, SunTrust Bank merged with and into Branch Banking and Trust Company. Branch Banking and Trust Company was renamed Truist Bank. SunTrust Bank was a wholly-owned subsidiary of SunTrust Banks, Inc.
  5. Truist Financial Corporation is organized under the laws of North Carolina with its principal place of business in Charlotte, North Carolina.
  6. Accordingly, the parties are completely diverse, as Plaintiffs are citizens of Venezuela, and Truist is a citizen of North Carolina.

B.        The Amount in Controversy Exceeds $75,000.

  1. Removal is also proper because the amount in controversy exceeds the $75,000 jurisdictional threshold, exclusive of interest and costs.
  2. In the Complaint, Plaintiffs seek to recover against Truist damages in excess of $271,020.00 under two causes of action sounding in negligence and gross negligence/recklessness. See Compl. ¶ 15-32.
  3. The amount in controversy therefore exceeds $75,000, exclusive of interest and costs.
  4. Accordingly, this case is properly removable because it is between citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs.

ADOPTION AND RESERVATION OF DEFENSES

  1. Nothing in this notice of removal shall be interpreted as a waiver or relinquishment of any of Truist’s rights to assert any defense or affirmative matter, including, but not limited to, the defenses of: (1) lack of jurisdiction over the person; (2) improper venue; (3) insufficiency of process; (4) insufficiency of service of process; (5) improper joinder of claims and/or parties; (6) failure to state a claim; (7) the mandatory arbitrability of some or all of the claims; (8) failure to join indispensable parties; or (9) any other pertinent defense available under Fed. R. Civ. P. 12, any state or federal statute, or otherwise.

PROCEDURAL REQUIREMENTS

  1. This case is a civil action within the meaning of 28 S.C. § 1441(a).
  2. True and correct copies of “all process, pleadings, and orders” filed to date are attached hereto as Exhibit “A”, in conformity with 28 S.C. § 1446(a). There has been no other process, pleading, or order served upon Truist to date in this case.
  3. This Notice of Removal is being filed, pursuant to 28 U.S.C. § 1446, within thirty days from September 22, 2021, the date Truist was served with a copy of the See 28 U.S.C. § 1446(b).
  4. The United States District Court for the Southern District of Florida, Miami Division, is the court and division embracing the place where this action is pending in state court.
  5. Pursuant to 28 U.S.C. § 1446(d), contemporaneously with the filing of this notice of removal, Truist filed a copy of same with the clerk of the Clerk of Court in Miami-Dade County, Florida, as well as a notice of filing notice of removal. Written notice of the filing of this notice of removal has also been served upon the Plaintiff.
  6. Truist reserves the right to supplement this Notice of Removal by adding any jurisdictional defenses which may independently support a basis for removal.
  7. To the extent remand is sought by Plaintiff or otherwise visited by this Court, Truist requests the opportunity to brief the issues and submit additional arguments and evidence, and to be heard at oral argument.
  8. All defendants consent to the removal of this cause of action.

WHEREFORE, PREMISES CONSIDERED, Truist prays that this Court take jurisdiction of this action and issue all necessary orders and process to remove this action from the Circuit Court of Miami-Dade County, Florida, to the United States District Court for the Southern District of Florida.

DATED: December 22, 2021.

Respectfully submitted,

/s/ Nicholas S. Agnello                                               

Nicholas S. Agnello, Esq. (FL Bar No. 90844)
BURR & FORMAN LLP
350 East Las Olas Boulevard, Suite 1440
Ft. Lauderdale, FL 33301

Telephone: (954) 414-6200
Facsimile: (954) 414-6201

Primary Email: FLService@burr.com
Secondary Email: nagnello@burr.com
Secondary Email: rzamora@burr.com

 

David Elliott, Esq. (FL Bar No. 94237)
BURR & FORMAN LLP
420 North 20th Street, Suite 3400
Birmingham, AL 35203
Telephone: (205) 244-5631
Facsimile: (205) 244-5631

Primary Email: delliott@burr.com
Secondary Email: cwingate@burr.com
Secondary Email: sfoshee@burr.com

Counsels for Defendant Truist Bank, formerly known as SunTrust Bank, Inc.

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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.



U.S. District Court
Southern District of Florida (Miami)
CIVIL DOCKET FOR CASE #: 1:21-cv-24412-JAL

DE LA RIVA et al v. SUNTRUST BANK
Assigned to: Judge Joan A. Lenard

Case in other court:  11th Judicial Circuit in and For Miami-Dade Co, Fl, 2021- 025111-CA-04 (24)

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 12/21/2021
Jury Demand: None
Nature of Suit: 190 Contract: Other
Jurisdiction: Diversity
Plaintiff
SHEDIMAR DE LA RIVA represented by Victor K. Rones
Rones & Navarro
16105 NE 18th Avenue
North Miami Beach, FL 33162
305-945-6522
Email: vrones@victorkronespa.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
Claudia Gil represented by Victor K. Rones
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
ADRIANA GIL C. represented by Victor K. Rones
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
EDUARDO LA RIVA C. represented by Victor K. Rones
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
SUNTRUST BANK represented by David Alan Elliott
Burr & Forman LLP
420 North 20th Street
Suite 3400
Birmingham, AL 35203
(205) 251-3000
Fax: (205) 458-5100
Email: delliott@burr.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDNicholas Steven Agnello
Burr & Forman LLP
350 E. Las Olas Boulevard
Suite 1420
Ft Lauderdale, FL 33301
954 414-6202
Fax: 954-414-6201
Email: nagnello@burr.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
12/21/2021 1 NOTICE OF REMOVAL (STATE COURT COMPLAINT – Complaint) Filing fee $ 402.00 receipt number AFLSDC-15266134, filed by SUNTRUST BANK. (No Answer filed/No Motion to Dismiss filed) (Attachments: # 1 Civil Cover Sheet, # 2 Docket Sheet, # 3 Exhibit State Court File)(Agnello, Nicholas) Text Modified on 12/21/2021 (scn). (Entered: 12/21/2021)
12/21/2021 2 Clerks Notice of Judge Assignment to Judge Joan A. Lenard.Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Lauren F. Louis is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent.

Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (scn) (Entered: 12/21/2021)

12/22/2021 3 AMENDED NOTICE OF REMOVAL by SUNTRUST BANK re 1 Notice of Removal (State Court Complaint), Amended (Attachments: # 1 Exhibit) (Agnello, Nicholas) Modified on 12/22/2021 (dj). (Entered: 12/22/2021)
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Debt Collector

The Falcons Land in Front of a New Federal Judge After Altman Decamps

This is a newly removed foreclosure proceeding which is now before Judge Darrin Gayles, SDFL.

Published

on

FALCON v. Bank Of America, N.A.

(1:21-cv-24250)

District Court, S.D. Florida

DEC 3, 2021 | REPUBLISHED BY LIT: DEC 18, 2021

LIF is trackin’ this removed foreclosure case. Bookmark for updates.

Judge Roy Altman Florida Self Recuses in this case.

Roy Kalman Altman (b. 1982) is a judge on the United States District Court for the Southern District of Florida. On May 7, 2018, President Donald Trump (R) nominated Altman to a seat on this court. The United States Senate confirmed Altman on April 4, 2019, by a vote of 66-33.

YOUR DONATION(S) WILL HELP US:

• 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.



U.S. District Court
Southern District of Florida (Miami)
CIVIL DOCKET FOR CASE #: 1:21-cv-24250-DPG

FALCON et al v. Bank Of America, N.A.
Assigned to: Judge Darrin P. Gayles

Case in other court:  11th Judicial Circuit Court Miami-Dade, 21-024076-CA-01

Cause: 28:1332 Diversity-Notice of Removal

Date Filed: 12/03/2021
Jury Demand: Plaintiff
Nature of Suit: 190 Contract: Other
Jurisdiction: Diversity
Plaintiff
ZENAIDA JOSEFINA FALCON represented by Martin George Prego
PREGO Law Group PLLC
2125 BISCAYNE BLVD, STE 350
Miami, FL 33137
3054986114
Email: mprego@pregolawgroup.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
IRAMA JOSEFINA FALCON represented by Martin George Prego
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
RHAYZA JOSEFINA FALCON represented by Martin George Prego
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Bank Of America, N.A. represented by Marc Thomas Parrino
Liebler Gonzalez & Portuondo, P.A.
Courthouse Tower- 25th Floor
44 West Flagler Street
Miami, FL 33130
305/379-0400
Fax: 305/379-9626
Email: mtp@lgplaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDShannon Dobel
Liebler, Gonzalez, and Portuondo P.A.
44 W. Flagler Street
Suite 2500
Miami, FL 33130
305-379-0400
Fax: 305-379-9626
Email: scd@lgplaw.com
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
12/15/2021 6 Certificate of Other Affiliates/Corporate Disclosure Statement by Bank Of America, N.A. identifying Other Affiliate BAC North America Holding Company, Other Affiliate Bank of America Corporation, Other Affiliate NB Holdings Corporation for Bank Of America, N.A. (Dobel, Shannon) (Entered: 12/15/2021)
12/13/2021 5 PAPERLESS ORDER REQUIRING JOINT SCHEDULING REPORT AND PROPOSED SCHEDULING ORDER. Pursuant to S.D. Fla. Local Rule 16.1, on or before December 27, 2021, the parties shall prepare and file a Joint Scheduling Report, as well as Certificates of Interested Parties and Corporate Disclosure Statements.The parties shall also file a Proposed Scheduling Order, adhering to the format and guidance of the attached form. If the parties deviate in any way from that format and guidance, they shall contemporaneously submit a written explanation, which provides their purported justification for each and every deviation. If the parties fail to submit such written explanation, the Court may enter a Scheduling Order that does not take into account the parties’ proposed dates.

Failure to comply with this Order shall be grounds for dismissal without prejudice and without further notice. Signed by Judge Darrin P. Gayles on 12/13/2021. (jsi) (Entered: 12/13/2021)

12/10/2021 4 MOTION to Dismiss the State Court Complaint contained within the Notice of Removal 1 Notice of Removal (State Court Complaint), by Bank Of America, N.A.. Responses due by 12/27/2021 (Dobel, Shannon) (Entered: 12/10/2021)
12/08/2021 3 ORDER OF RECUSAL. Judge Roy K. Altman recused. Case reassigned to Judge Darrin P. Gayles for all further proceedings. Signed by Judge Roy K. Altman on 12/7/2021. See attached document for full details. (yar) (Entered: 12/08/2021)
12/03/2021 2 Clerks Notice of Judge Assignment to Judge Roy K. Altman and Magistrate Judge Lisette M. Reid.Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Lisette M. Reid is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent.

Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (jbs) (Entered: 12/06/2021)

12/03/2021 1 NOTICE OF REMOVAL (STATE COURT COMPLAINT – COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL) Filing fee $ 402.00 receipt number AFLSDC-15219474, filed by Bank Of America, N.A..(Dobel, Shannon)(No Answer/Motion to Dismiss Filed) Modified text on 12/6/2021 (jbs). (Entered: 12/03/2021)
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