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LIT COMMENTARY

We’re reviewing the attorneys who are listed on the CFPB v. Ocwen case in Florida, who are representing Ocwen. This article focuses on the background of liar lawyer Sabrina Rose-Smith (or Sabrina Rose Smith) and her unethical practices as a partner for this big law firm in Washington, D.C.

Sabrina is a member of the Virginia State Bar and you can see the lawyer professional guidelines here and all the disciplinary cases against lawyers here.  She is also a member of the DC Bar, where the Burkes have filed their complaint.

Lawyer Complaint (D.C. Bar) : Sabrina Rose-Smith

This complaint is against an attorney registered with the District of Columbia (D.C.) State Bar. The lawyers’ name is Sabrina Rose-Smith and she works for Goodwin Procter, LLP. Her law firm  represents Ocwen in the cited case below and she is one of the named counsel of record. The Burkes claim that Ms. Rose-Smith violated (at a minimum) Rule 4.1, Truthfulness in Statements To Others; In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of fact or law[.] See In re Mitchell, 822 A.2d 1106 (D.C. 2003)  and; Rule 3.3, Candor Toward the Tribunal; In re Uchendu, 812 A.2d 933 (D.C. 2002), Rule 4.4, Respect For Rights Of Third Persons; See In re Pelkey, 962 A.2d 268 (D.C. 2008); Rule 5.1 Responsibilities Of Partners And Supervisory Lawyers; See In re Cohen, 847 A.2d 1162 (D.C. 2004);  Rule 8.4, Misconduct; See In re Mitchell, 822 A.2d 1106 (D.C. 2003). Then there’s the Cobb County cases described herein, of which Ms. Rose-Smith is counsel. Then there is the violation of  Rules 1.7, Conflict of Interest; 1.9 and 1.16 and 1.10 with respect to Ms. Rose-Smith. See Lavender v. Protective Life Corp., Civil Action No. 2:15-cv-02275-AKK, at *25-26 (N.D. Ala. Jan. 31, 2017).

Other cases specific to Goodwin are discussed below. The Burkes also draw the Bar’s attention to;  Cruickshank v. Dixon (In re Blast Fitness Grp., LLC), No. 16-10236-MSH (Bankr. D. Mass. Jan. 8, 2019)

And there’s also former Goodwin lawyer, now law professor, Associate Professor Luke M. Scheuer who previously held adjunct positions at Boston College Law School, the University of Massachusetts School of Law, and Boston University School of Law and his paper; “Duty to Disclose Lawyer Misconduct” (2010), Available at: https://works.bepress.com/luke_scheuer/2/, wherein he discusses cases like In Re Himmel.

The Burkes Motion to Intervene in Consumer Fin. Prot. Bureau v. Ocwen Fin. Corp., No. 9:17-CV-80495-MARRA-MATTHEWMAN  (S.D. Fla. 2017-2020)

Background: The CFPB initiated the civil case on April 20, 2017, alleging that Ocwen, in servicing borrowers’ loans, engaged in various acts and practices in violation of federal consumer financial laws. On January 4, 2019, Joanna and John Burke sought leave to intervene under Federal Rule of Civil Procedure 24. (Doc. 220). The CFPB and Ocwen jointly opposed the motion to intervene (Doc. 224) and the Burkes filed a reply brief (Doc. 237). On May 30, 2019, the district court denied the Burkes’ motion to intervene (Doc. 375). The Burkes moved for reconsideration (Doc. 408). The Court denied that motion on July 3, 2019, (Doc. 411), and the Burkes noticed an appeal on August 2, 2019 to the Eleventh Cir., Case No. 19-13015. The Burkes have argued that Ocwen’s counsel, Ms. Sabrina Rose-Smith knowingly committed perjury and withheld evidence of the Greens case from the Burkes.

Denial of Intervention ‘As of Right’: Judge Marra denied the Burkes intervention as of right (Doc. 375, p. 4).

Denial of Intervention ‘Permissively’: Judge Marra also concluded the Burkes should be denied permissive intervention.

Analysis of Judge Marra’s Order [Reconsideration]; The Burkes then asked Judge Marra to reconsider. The courts fleeting order follows (Doc. 411, p. 3);

“In addition to the grounds stated in the Court’s Order Denying Intervention (ECF No. 375), the Court notes that intervention is not permitted to allow a party to seek or obtain evidence for other litigation as asserted by the proposed Intervenors. (See ECF No. 408 at 4).”

Judge   Marra’s  Implausible  Statement:  The Burkes address the proclamation that the ‘intervention is not permitted for the purposes of seeking or obtaining evidence for other litigation’ and which refers to p. 4 of the Burkes motion for reconsideration (wherein the Burkes detail reasons for their request to intervene, included obtaining documentation to assist with their ongoing and active litigation in Texas against Ocwen).

Obtaining “Evidence” as a Non-Party Without a Motion to Intervene: Recently, and most certainly after Doc. 411 was published by Judge Marra, the pro se Burkes were researching cases and citations which would help prove their arguments for their current appeal at the Eleventh Cir. (Case No. 19-13015). The results now raise a serious question as to the truth of the uncorroborated statement in law by United States District Judge Kenneth A. Marra (Doc. 411, p.3).

Disclosure; While it is a thorny issue, the Burkes have been left no alternative but to [separately] file a judicial complaint against Judge Marra. This CFPB v Ocwen case indirectly involves important matters pertaining to the Burkes litigation and homestead. When they located this titanic case, which could provide a vehicle for the Burkes to obtain either documentation and information that would assist in the Texas case(s) or could provide relief directly, they did so in a quick and legally correct basis. This is why the Burkes intervened in the S.D. Fl. Action.  The Burkes allege there had to be joint collusion between counsel for Ocwen, CFPB and Judge Marra to unlawfully deny rightful intervenors Burkes from joining the lawsuit, which is proven by the filings on the docket itself.

In the Texas case of Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13) (S.D. Tex. Aug. 26, 2019), which will be referenced as “Greens” for short, is one of a series of actual cases by the Greens, who are Texas homeowners, at the S.D. Tex. court against Ocwen. The order In Re Green was published on August 26th, 2019, e.g. After Judge Marra had disposed of the Burkes motion to intervene and reconsideration and after the Burkes Notice of Appeal (Doc. 414, Aug. 2, 2019).

A summary of the Greens own foreclosure case(s) is provided by U.S. District Judge Nancy Atlas’s order affirming Bankruptcy Judge Marvin Isgur’s order, and allowing the Greens to retain access to ‘discovery’ documents as evidence for their own case against Ocwen.

The documents which the Greens actually obtained and Ocwen attempted to quash, would be from the lower court case in Florida. That is correct, these are documents (currently under seal at S.D. Tex.), from the CFPB v. Ocwen case before Judge Marra. See Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13), at *2-4 (S.D. Tex. Aug. 26, 2019).

The Burkes hold Ms. Rose-Smith’s filings and statements to be false and untruthful. Ms. Rose-Smith’s responses went further than zealously defending her client, she viciously maligned these pro se elderly citizens from Texas and all the while knowingly committing perjury in signed statements and filings in the lower court.

“Ocwen and the CFPB jointly opposed the Burkes’ motion, which the district court denied. On appeal, the Burkes repeat many of the same conspiracy theories and unsupported attacks on Ocwen and the CFPB that they alleged below, while failing to articulate any comprehensible, legally-supported rationale for why their intervention in this case is warranted. The Court should ignore the Burkes’ baseless and irrelevant attacks on the parties and affirm the district court’s well- reasoned decision.”

Then, without a flicker of foreboding that as an attorney she had an ethical duty to tell the truth, she repeated these lies again, months later, at the appeal court level. This was prejudicial to the Burkes by premeditated cheating and trickery e.g. lying and knowingly hiding the Greens case from the Burkes. Below is the introduction from Burkes’ reply brief on appeal at Eleventh Circuit (No. 19-13015):-

PREAMBLE AND DISCLAIMER

“First, a rather lengthy reply brief, including a recap of the case is necessary due to the bad faith conduct of the parties, the appellees in this appeal. While the Burkes wished to keep the reply short and concise, this has proven impractical due to the [mis]conduct as detailed here. The Burkes summary argument truly attempts to focus on the evidence, the facts, the pleadings and the law, but it ends up being sabotaged by a litany of ethical violations which include, but are not by any means exhaustive;

(i)    Collusion and Conspiracy.

(ii)   Bad Faith Conduct.

(iii)  Dishonesty towards the Tribunal.

(iv)  New evidence showing the Court and the parties must have known about the Greens case in S.D. Tex.

Second, the pro se Burkes have been left searching for the truth, rather than focusing on the appeal, due to apparent known concealment and dishonesty by the lower court.

The Cobb County Federal Court Cases in Illinois and Georgia

Ms. Rose-Smith is counsel in the two actions the Burkes wish to reference in this matter. These are; Cobb County v. Bank of America Corporation (1:14-CV-02280), District Court, N.D. Illinois and Cobb County v. Bank of America Corporation (1:15-cv-04081-LMM), District Court, N.D. Georgia where the Burkes recently uncovered more unethical practices. Cobb Cnty. v. Bank of Am. Corp., 183 F. Supp. 3d 1332, 1333 (N.D. Ga. 2016)).

Here, Goodwin Procter approached the County’s named eleven witnesses, former loan officers who signed affidavits which explained the illegal loans the banks were issuing for financial avarice and not in the interests of consumers. Once Goodwin contacted them, these ex-employees of the Bank recanted in the majority, their claims from their first affidavit. Both the Illinois and Georgia judges stated that they were very troubled by the actions of Goodwin. In the Illinois case, there is a transcript of the hearing.  Ms. Rose-Smith and her law firm represented the Bank in the Illinois case and her fellow partner, Matthew Sheldon was grilled by Judge Bucklo. (See transcript from Dec. 5, 2019 hearing, which was submitted to Judge May in Georgia; Doc. 53.14, Cobb County v. Bank of America Corporation (1:15-cv-04081-LMM) District Court, N.D. Georgia). Here’s a snippet; “I really don’t understand how you can represent them.” – “I do find it DISTURBING.”- Judge Bucklo.

After that hearing Goodwin promptly discarded the new witnesses (Doc. 83, March 25th, 2020) to fend for themself and after signing agreements to represent them.

The courts found that this meant the witness statements were moot [at this time]. While the Burkes dispute that opinion in law, the purpose of this complaint is the Rules of Professional Conduct. The Burkes now highlight the fact that ethically, the lawyer(s) actions are certainly not ‘moot’. Actually, in the Georgia action, Judge May has kept the ‘sanctions’ against Goodwin Procter, LLP, firmly on the table (Doc. 86, April 10th, 2020). As of Monday, June 8th, 2020, the Cobb County lawyers have officially filed for sanctions. See Doc’s 493/494.

Furthermore, it was clear that the judges and all counsel recognized that these witnesses could be charged with perjury upon independent review. Goodwin dropped them faster than a hot potato but the ‘hot potato rule’ does not support that decision; Under the “hot potato” rule, a “‘law firm that knowingly undertakes adverse concurrent representation cannot avoid disqualification by withdrawing from the representation of the less favored client.’”  The “hot potato” rule reflects that the “duty of loyalty to an existing client is so important, so sacred, so inviolate that “not even by withdrawing from the relationship can an attorney evade it. See also; https://definitions.uslegal.com/h/hot-potato-rule/  and State Comp. Ins. Fund v. Drobot, 192 F. Supp. 3d 1080 (C.D. Cal. 2016)

Certainly, from afar, the Burkes performed a quick audit and now question witness Jim Morelli’s employment history. Mr. Morelli is also a licensed notary public. So from a truth-seeking viewpoint, the fact that his Linkedin profile shows he worked from 1999-2007 – 8 years+ at First Franklin. But his affidavit states;

“I worked as an account executive at First Franklin from 2002 to 2006.” (Doc. 53.11, signed 30th Sept., 2019 by Mr. Morelli) – That’s 4 years.  It begs the question – which is the truth?

As another example, when you look at Arnold “Arnie” Fishman’s before (Doc. 53.19, signed 22nd June, 2015) and after affidavit (Doc. 53.3, signed 26th July, 2019), it is extremely troubling. Mr. Fishman is a licensed mortgage broker and very active in the mortgage industry, currently employed by BMO Harris Bank for the last 8+ years as a mortgage loan originator, according to his Linkedin profile.  From the outside looking in, it appears Mr. Fishman now does not wish to jeopardize the mortgage and banking industry, where he’s spent the best part of his career as a mortgage loan originator. It is indicative that if Mr. Fishman was interviewed, his statements could form the basis  of perjury as a result of intimidation. See “Courts have noted that “a unilateral communications scheme . . . is rife with potential for coercion.”  Kleiner v. The First Nat’l Bank of Atlanta, 751 F.2d 1193, 1202  (11th Cir. 1985)”. This is also affirmed by the expert report and declaration of Professor Roy D. Simon, Jr., an expert in the field of legal ethics and professional responsibility.

“Prima facie evidence exists that Goodwin Procter suborned perjury from the confidential witnesses by obtaining false declarations under penalty of perjury and, by analogy to the “sham affidavit doctrine…”

Please review Law professor Roy Simon’s credentials, including his declaration and opinion that these lawyers violated Georgia’s professional codes of conduct.

In connection with this motion, the Counties retained Professor Roy D. Simon, Jr., a leading expert in the field of legal ethics. He is the Distinguished Professor of Legal Ethics Emeritus at Hofstra University School of Law, serves as a legal ethics advisor to law firms, and is the author of the twenty editions of Simon’s New York Rules of Professional Conduct Annotated, as well as other books in the field of professional responsibility. (See Declaration of Roy D. Simon (“Simon Decl.”), ¶¶ 1, 4, Ex. A.) and his profile; https://www.hofstra.edu/faculty/fac_profiles.cfm?id=1410

Ms. Rose-Smith’s Actions are Below the Bar

Ms. Rose-Smith’s resume identifies her seniority in the law firm (Partner, resume attached), her experience in litigation in consumer related cases and her many years of attorney experience. In the CFPB v. Ocwen case, she is listed as counsel. As a partner, she is also overseeing a team of lawyers at Goodwin Procter, assigned to this case. Ms. Rose-Smith violated the terms of Rule 5.1(b).

Ms. Rose-Smith’s attempts to defend this unethical approach to witnesses, merely reaffirms the cold and calculated deceitfulness she is and was prepared to take e.g. risking her reputation and law license to win the case. Aggregating the CFPB case and the Cobb cases, the evidence is sufficient to show by clear and convincing proof that Ms. Rose-Smith’s dishonesties and deception are on the record and cannot be contested and she personally elected to commit this fraudulence in court filings.

Elder Abuse Demands Revocation of License

The Burkes point to the conduct of the lawyer in the filing of this complaint, and rely upon the local Supreme Court in Texas when citing; for example the 1994 case before the Texas Supreme Court where they concisely summarized the difference, rejecting the Texas Bar’s argument;

“Our inquiry relates to the classification of the crime, not the tribunal’s subjective judgment of character of the particular lawyer convicted. In short, we classify the crime, not the lawyer.” Thacker, Matter of, 881 S.W.2d 307, 309 (Tex. 1994).

Due to the seriousness of her harmful acts against the Burkes who are in their 80’s, in poor health and litigating to keep their home, this is elder abuse fraud when the Burkes’ legal and civil rights have been completely violated. Ms. Rose-Smith has violated the Rules of Professional Conduct, has abused her senior position which was used to act unlawfully and substantively injured the Burkes in their ongoing case(s).

In conclusion, the Burkes contend Ms. Rose-Smith’s actions are so egregious against the elder Burkes, her license should be revoked, sending a strong message to lawyers that this type of behavior will not be tolerated and is ‘Below the Bar’.

Submitted this day, Monday, June 15, 2020

About

Sabrina represents financial services clients in high-stakes individual and class action litigation. She also advises clients on compliance issues and litigation risks in the development of new products and programs. In addition to her consumer class action litigation work, Sabrina has represented clients in matters involving the DOJ, CFPB, HUD, FTC, SEC, federal and state banking authorities, and state attorneys general.

Sabrina is recognized for being a savvy litigator and trusted advisor who combines industry knowledge and top notch advocacy with a commitment to client service to effectively manage complex litigation and to achieve business and reputational goals for banks and financial services companies. She is known for straight talk, sound advice, and for creating cohesive client/counsel teams to meet the challenges of her clients’ ever-changing business and regulatory environments.

Experience

Goodwin Procter LLP
Company Name Goodwin Procter LLP
Total Duration 12 yrs 3 mos
Title Partner
Dates Employed Oct 2010 – Present
Employment Duration 9 yrs 8 mos

Member of Goodwin’s Consumer Finance Litigation practice group, focusing on consumer lending and class action defense. Practice includes both regulatory compliance counseling and auditing for banks, credit card issuers, mortgage lenders and specialty finance companies, and defending financial institutions against consumer class actions and government enforcement actions.
Title Senior Associate
Full-time
Dates Employed Mar 2008 – Oct 2010
Employment Duration 2 yrs 8 mos

Member of Goodwin’s Consumer Finance Litigation practice group, focusing on consumer lending and class action defense. Practice includes both regulatory compliance counseling and auditing for banks, credit card issuers, mortgage lenders and specialty finance companies, and defending financial institutions against consumer class actions and government enforcement actions.

Manatt, Phelps & Phillips, LLP
Associate

Company Name

Manatt, Phelps & Phillips, LLP Full-time
Dates Employed Jun 2006 – Feb 2008
Employment Duration 1 yr 9 mos

Member of Manatt’s Banking and Specialty Finance practice group, focusing on consumer lending and class action defense.

Paul Hastings
Associate

Company Name

Paul Hastings Full-time
Dates Employed Sep 2003 – May 2006
Employment Duration 2 yrs 9 mos

Specialized in complex litigation, focusing practice on antitrust and consumer class action litigation. Antitrust experience ranged from counseling clients on proposed transactions to defending clients in treble damages class action litigation, MDL proceedings and state indirect purchaser and monopolization claims. Defended consumer finance lawsuits and counsels clients on litigation strategy and practical methods to prevent class actions through the implementation of consumer arbitration agreements.

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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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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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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