JUDGE DONALD L. GRAHAM AFFIRMED ON APPEAL FOR THE SAME REASON HIS COLLEAGUE JUDGE URSULA UNGARO-BENAGES WAS REVERSED FOR

 

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Justice Turned On Its Head

 

Judge Donald L. Graham is Above the Law!!!

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See Background Below
 
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ELEVENTH CIRCUIT "PUBLISHED" STANDARD FOR RULE 41(b) dismissal:
This circuit has clearly stated that because dismissal is considered a drastic sanction, a district court may only implement it, as a last resort, when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice.
See Fed.R.Civ.P. 41(b) dismissal standard or requirements below , below.  The Eleventh Circuit consistently that both requirements must be met.  See mmason.freeshell.org/rule41b.htm .
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Two Judges, Same Facts, Different Outcomes
 
In this case, U.S. District Ursula Ungaro-Benages, United States District Court for the Southern District of Florida, was reversed on appeal because "the district court failed to make the necessary finding that lesser sanctions would not suffice in this instance, as required in the second prong of the inquiry "  See Fed.R.Civ.P. 41(b) dismissal standard or requirements below, below.
 
 
 
In another case involving U.S. District Judge Donald L. Graham, United States District Court for the Southern District of Florida, Dist. Ct. Case No. 99-14027-CV-Graham, Eleventh Cir. Case No. 01-13664-A, failed to make the necessary finding that lesser sanctions would not suffice in this instance, as required in the second prong of the inquiry,  but was affirmed on appeal.  See mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#Implicit .  As a matter of fact, the Eleventh Circuit wanted to affirm Judge Graham so bad that it used a clearly invalid sua sponte issued pre-filing in junction rendered on September 20, 2001 to justify a dismissal of case closed on June 20, 2001.   See mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm   Equally egregious, the Eleventh Circuit stated that the sua sponte issued pre-filing in junction was "beyond the scope of appeal" and struck the Appellant's brief because he argued against the sua sponte issued pre-filing in junction
 
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DeJa Vu
 
Similarly, Judge T.K. Hurley, S.D. Fla., was reversed on appeal, for denying an in forma pauperis application without a reason, but Judge Graham, S.D. Fla, was affirmed for doing the exact same thing.  See mmason.freeshell.org/martinez.htm .
 
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DOCUMENTED ACTS OF JUDICIAL MISCONDUCT 
 

The core allegations are fully documented below and include, but are not limited to:

  • Lying and intentionally misrepresenting the law. 

  • Usurping legal authority by allowing his magistrate to issue an injunction that prohibited Mason, a non-lawyer from communicating directly with the government, Highlands County, and prohibiting Mason from requesting Florida Law public records directly from Highlands County.

  • Refusing to rule on a motion for a preliminary injunction submitted by Mason on November 24, 1999.  The case was closed on June 20, 2001 and Judge Graham never ruled on this motion or stated why he would not.  Also on April 26, 2001, the Eleventh Circuit said that it was frivolous to file a petition in the way of mandamus, because Mason has no right to have his motion for a preliminary injunction decided.  See Opinion.  

  • Allowing scores of motions to languish without deciding them, including discovery and summary judgment motions.

  • Abusing the contempt process by initiating an invalid sua sponte issue pre-filing injunction.  See mmason.freeshell.org/SuaSponte.htm .

  • Awarding $200,00 in legal fees against Mason based upon this same sua sponte issue pre-filing injunction.  See mmason.freeshell.org/DE-882/de882.htm 

Incidentally, these allegations were presented to the Chief Judge of the Eleventh Circuit in the form of multiple Judicial Misconduct Complaints, however, Judge Edmondson summarily dismiss them without denying the veracity of the allegations.  See mmason.freeshell.org/372c/index.html

 

 
 
 
 
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United States Court of Appeals,

Eleventh Circuit.

No. 93-5154.

WORLD THRUST FILMS, INC., Plaintiff-Appellant,

v.

INTERNATIONAL FAMILY ENTERTAINMENT, INC., d/b/a The Family Channel, Timothy B. Robertson, Defendants-Appellees.

Jan. 6, 1995.

Appeal from the United States District Court for the Southern District of Florida. (No. 93-681-CIV), Ursula Ungaro-Benages, Judge.

Before KRAVITCH and HATCHETT, Circuit Judges, and CLARK, Senior Circuit Judge.

PER CURIAM:

The district court dismissed appellant's, World Thrust Films, Inc. (World Thrust), complaint for failure to comply with local rules and for failure to serve process. We reverse the district court's dismissal of the case.

FACTUAL AND PROCEDURAL BACKGROUND

On April 12, 1993, World Thrust filed a complaint against appellees, International Family Entertainment, Inc. (International Family) and Timothy B. Robertson, in the United States District Court for the Southern District of Florida. The complaint alleged breach of contract, copyright infringement, and contributory infringement. Two lawyers signed the complaint.

The day after the lawyers filed the complaint, the district court entered an order, pursuant to Rule 16 of the Federal Rules of Civil Procedure and Local Rule 16.1 of the Southern District of Florida, requiring the parties to discuss case management and directing World Thrust to file a joint scheduling report within sixty days. Approximately two weeks later, the district court entered an identical order thereby extending the deadline to the end of June. Both of the orders contained the following warning: "Failure to comply with the requirements of Local Rule 16.1 and Federal Rule of Civil Procedure 16 will subject the party or counsel to appropriate penalties, including but not limited to dismissal of the cause, or striking of defense and entry of judgment."

On August 4, 1993, over a month after the deadline, the district court entered an order requiring World Thrust to show cause within eleven days why the joint scheduling report had not been filed. The order provided that if such papers were not filed within the time specified, the court would dismiss the action pursuant to Local Rule 16.1. On the same date, the district court also ordered World Thrust to effect service of process, and file proof thereof, within eleven days. [1]  

World Thrust did not respond to the orders, and on August 27 the district court dismissed the complaint pursuant to Local Rule 16.1(M) (for not filing the scheduling report) and Federal Rule of Civil Procedure 4(j) (for lack of service of process). [2]  

On September 7, 1993, World Thrust filed motions to: (1) reconsider and vacate the dismissal order; and (2) extend the time to respond to the order to show cause and to file the scheduling report.

On September 30, 1993, the district court denied World Thrust's motions. This appeal followed.

CONTENTIONS

World Thrust contends that the district court abused its discretion in dismissing the complaint because the record did not clearly indicate that it willfully disregarded Local Rule 16.1 and the district court's orders to comply with the rule. World Thrust also argues that the district court never considered lesser sanctions.

Appellees respond that World Thrust engaged in a clear pattern of willful delay and that implicit in the district court's dismissal was a finding that lesser sanctions would not suffice. They also contend that we should not entertain World Thrust's argument that the district court did not consider lesser sanctions because World Thrust did not raise this issue in the district court.

ISSUE

The only issue which we discuss is whether the district court abused its discretion in dismissing World Thrust's complaint for failure to comply with Local Rule 16.1 of the Southern District of Florida. [3] raising any service of process objections. See Pardazi v. Cullman Medical Center, 896 F.2d 1313, 1316-18 (11th Cir.1990). Recognizing that appellees do not even attempt to support this aspect of the district court's dismissal order in their brief, the only issue that we discuss is whether the district court abused its discretion in dismissing World Thrust's complaint for failure to comply with Local Rule 16.1.

DISCUSSION

"A district court has authority under Federal Rules of Civil Procedure 41(b) to dismiss actions for failure to comply with local rules. We review such orders for abuse of discretion." Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir.1993). This circuit has clearly stated that because dismissal is considered a drastic sanction, a district court may only implement it, as a last resort, when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice. See, e.g., Kilgo, 983 F.2d at 192 (citing a line of Eleventh Circuit cases which have consistently articulated this standard).

When considering the first prong of this inquiry, World Thrust argues that it did not engage in contumacious conduct. Rather, World Thrust contends that it did not respond to the district court's order to show cause because one of its lawyers was attending to a family emergency out of state and the other was only "local counsel." Appellees respond that World Thrust's failure to reply to the district court's order to show cause was not the first and only instance of willful disobedience. To the contrary, World Thrust was over a month late in filing a scheduling report with the district court. Furthermore, even if one of World Thrust's lawyers was justified, due to a family emergency, in not responding to the district court's order, certainly co-counsel should have responded. Thus, appellees argue that World Thrust engaged in a consistent pattern of contumacious conduct.

We need not decide, however, whether the conduct of World Thrust's lawyers was contumacious because the district court failed to make the necessary finding that lesser sanctions would not suffice in this instance, as required in the second prong of the inquiry. [4] "Although we occasionally have found implicit in an order the conclusion that "lesser sanctions would not suffice', we have never suggested that the district court need not make that finding, which is essential before a party can be penalized for his attorney's misconduct." Mingo v. Sugar Cane Growers Co-op of Florida, 864 F.2d 101, 102 (11th Cir.1989) (citations omitted). This court has only inferred such a finding "where lesser sanctions would have "greatly prejudiced' defendants." Kilgo, 983 F.2d at 193 (quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985)). Because we cannot envision how the appellees would have been greatly prejudiced through the imposition of lesser sanctions, we refuse to infer a finding that lesser sanctions would not have sufficed in this case. Therefore, we conclude that the district court failed to follow the second prong of the Eleventh Circuit standard and abused its discretion in dismissing the complaint.

On remand, the district court must reinstate World Thrust's lawsuit unless it finds that dismissal is warranted under the Eleventh Circuit standard. When evaluating possible lesser sanctions, the district court may consider awarding costs and expenses of this appeal to appellees.

CONCLUSION

For the reasons stated, we reverse the district court's dismissal of World Thrust's complaint.

REVERSED and REMANDED.


FOOTNOTES

[1]  

World Thrust filed a summons for International Family on May 18, but never filed a summons for Robertson. Nonetheless, on June 9, both appellees filed a motion to extend their time to answer the complaint. The district court granted this motion. On July 6, both appellees filed a second motion to extend their time to answer the complaint. The district court also granted this motion. Both appellees then filed an answer on August 6.

[2] Rule 4(j) has since been relettered 4(m).

[3] As noted in the Background section, the district court also dismissed World Thrust's complaint pursuant to Rule 4 of the Federal Rules of Civil Procedure for failure to serve process. Dismissal pursuant to Rule 4, however, was improper because both International Family and Robertson answered the complaint without

[4] We disagree with appellees' contention that World Thrust did not present this issue below.

 
 
 
 
 
BACKGROUND
Marcellus M. Mason, Jr. of Sebring, Fl. filed an employment discrimination lawsuit against Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999.  This case was ultimately assigned Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court communications between Highlands County and Mason.  "R&R" (D.E. 766), Order adopting R&R (D.E 791)
 
In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue  asked the Magistrate to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants.  These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL . 
 
These orders were granted on June 19, 2000 and July 25, 2000.  Both are attached to this email 
 

Plaintiff shall be prohibited from contacting any of the Defendants,  including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.”  (DE #201).  This order is dated June 19, 2000,

 

Plaintiff shall correspond only with Defendants' counsel including any requests for public records.” (DE #246). “Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.”  (DE #246).  This order is dated July 25, 2000. 

 
Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law.  Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like.  Mason asserted that these orders violated the First Amendment, Tenth Amendment, 28 U.S.C. 636 (b)(1)(a), Fla.Stat., Chap 119, and the Florida Const. and they fail to meet the requirement for an injunction.   Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.   As set out below, the Eleventh Circuit has refused to discuss the validity of these orders either on direct appeal, interlocutory appeal, or mandamus.  It would appear that staff attorneys at the Eleventh Circuit and are making a mockery of the legal system.   
 
 
See FUTILE ATTEMPTS AT APPELLATE REVIEW.
 

 

 

 

 

 

BANNED OUT OF COUFT DIRECT GOVERNMENT COMMUNICATIONS

 

 

During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel.

 

(D.E. 511, 6, PG.3)

 

On February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation.

D.E. 511, 7, PG.3)

 

On February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Canno’s office and not through Defendant Highlands County ’s counsel.

D.E. 511, 8, PG.4)

 

After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001

D.E. 511, 9, PG.4)

 

Mr. Mason returned to Mr. Carino’s office a second time on February 14, 2001 and knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. He demanded to view Defendant Highlands County ’s Insurance Document of Coverage, a document that had previously been produced to him. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel. Notwithstanding, the document was produced to him.

D.E. 511, 10, PG.4)

 

During this visit, Plaintiff became loud, aggressive, disruptive, and questioned the need for Mr. Carino’s presence during his review of the document.

D.E. 511, 11, PG.4)

 

Plaintiffs conduct in violation of this Court’s Orders of June 19, 2000 and July 25, 2000 require a dismissal with prejudice of all of plaintiff’s claims in the above-referenced matter.

D.E. 511, 15, PG.5)

 

Since April 3, 2001 - subsequent to the Court’s March 27th Order - Plaintiff has repeatedly personally contacted supervisory employees and/or the individual Defendants about matters related to this case. Specifically, Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff, Plaintiffs tortious interference claim, as well as Allen, Norton & Blue’s “track record” of litigating appeals (including Eleventh Circuit appeals). (Exhibit 1).

 

(D.E. 646, 10, PG.3)

 

Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation.

(D.E. 646, 11, PG.4)

 

In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation.

(D.E. 646, 12, PG.4)

 

 

All of Plaintiff’s claims arise from the same set of facts and are all related, and he should simply not be allowed to continuously disregard Orders of this Court and blatantly challenge the Court’s authority.

(D.E. 646, 13, PG.4)

 

Plaintiff has demonstrated a blatant disregard and disdain for this Court’s authority, as evidenced by Plaintiff’s statement that “ANYBODY, who supports your position. . . is a racist and is part of the problem. I fear no man!!! This includes white men wearing robes” and “I aint afraid of a white men wearing robes of any color.” (Exhibit 1, e-mails dated 4/03/01 at 10:57 a.m. and 4/06/01 at 8:33 a.m. respectively)

(D.E. 646, 14, PG.4)

 

 

 

 

 

 

 

 

FUTILE ATTEMPTS AT APPELLATE REVIEW

 

1.       The following orders, [D.C. Case No. 99-14027-CV- Graham, ( Doc. 201), ( Doc. 246)] rendered by a Magistrate, are not valid and are violative of the First Amendment, Tenth Amendment, 28 U.S.C. 636 (b)(1)(A), and fails to meet the legal requirements for a preliminary injunction :

 

“Plaintiff shall be prohibited from contacting any of the Defendants,  including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.”  (DE #201).  This order is dated

 

“Plaintiff shall correspond only with Defendants' counsel including any requests for public records.” (DE #246). “Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.”  (DE #246).  This order is dated July 25, 2000. 

 

The Eleventh Circuit, US Court of Appeal has had a multiplicity of opportunities to review these orders, but has declined to do so.  These orders were reviewable under collateral order doctrine and could have been appealed prior to entry of final judgment because these orders resolved issues independent and easily separable from other claims in the prior pending lawsuit.  Ortho Pharmaceutical Corp. v. Sona Distributors, 847 F.2d 1512, 1515 (11th Cir. 1988).   Following is a list[1] of opportunities The Eleventh Circuit has to review these orders:

a.       Case No. 01-13664.  The Eleventh Circuit rendered a prolix 14 page opinion on October 16, 2002 that does not discuss the validity of these orders.  It is quite remarkable in that The Eleventh Circuit is single-mindedly focused on alleged out of court communications with his government by Mason as alleged violations of the orders above while steadfastly refusing to review the validity of these orders. .  On appeal, Mason argues that the magistrate's discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.”  See Pg. 10.  Even though The Eleventh Circuit admitted the orders in question were being tested for validity on appeal, The Eleventh Circuit refused to review these orders for validity. 

b.       Case No. 01-15754.  Among other things, The Eleventh Circuit again refuses to address this issue.  In fact, the entirety of the opinion is:  “The "petition for writ of mandamus and petition for writ of prohibition" is DENIED.”

c.       Case No. 02-13418.  This lawsuit was filed against Judge Graham and his Magistrate, Judge Frank Lynch, Jr., for issuing these orders.  In an opinion rendered on Dec. 6, 2002, The Eleventh Circuit again declined to discuss the validity of these orders while asserting in a mere conclusory fashion that the Judges have absolute immunity.  In reading the opinion, one can not determine what the judges are immune from. 

d.       Case No. 01-13664.  Mason filed a Appellant’s Renewed Motion For Summary Reversal on or about September 25, 2002.  Yet again The Eleventh Circuit refuses to discuss the validity of these orders.

e.       Case No. 01-11305.  On April 26, 2001, The Eleventh Circuit yet again refused to review the validity of theses orders.  With regard to his requests for relief from the order granting the defendants’ motions for preliminary injunction, which the court construed as preliminary discovery motion, Mason has alternative remedy.  He may either comply with the district’s courts discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt”.   See Mandamus Petition.  Was Mason supposed to wait until the end of trial to get his First Amendment rights back?  The Eleventh Circuit has answered this question with a resounding no.  “[I]t is well established that "[t]he loss of  First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”  KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1271-1272 (11th. Cir. 2006); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983).  The Eleventh Circuit declined to review these orders via interlocutory appeal because they were characterized as “discovery orders” by the district court”.  However, it is well established that an appellate court is not bound by a district court’s characterization of its own orders with respect to appellate jurisdiction.  United States v. Hylton, 710 F.2d 1106 (5th Cir. 1983); United States v. Jorn, 400 U.S. 470 (1971). 



[1] This list is not collectively exhaustive.   

 

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