JUDGE DONALD L. GRAHAM :
FAVORED BY THE ELEVENTH CIRCUIT, US COURT OF APPEAL OR PERVERTED
AFFIRMATIVE ACTION
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PART ONE:
A TALE OF THREE APPEALS
COLLINS V. LAKE HELEN
WORLD THRUST FILMS, INC.
DeJa Vu: Judge T.K. Hurley, S.D. Fla., was reversed on appeal while his colleague Judge Graham was affirmed for the exact same facts.
PART TWO:
DOCUMENTED ACTS OF JUDICIAL MISCONDUCT BY JUDGE GRAHAM
BACKGROUND
BANNED OUT OF COMMUNICATIONS
FUTILE ATTEMPTS AT APPELLATE REVIEW
THE ELEVENTH CIRCUIT'S "PUBLISHED" STANDARD FOR RULE 41(b) dismissal:
In this case, Collins v. Lake Helen, 249 Fed. Appx. 116; 2007 U.S. App. LEXIS 22606 (11th Cir. 2004), U.S. District John Antoon II and Magistrate David A. Baker, United States District Court for the Middle 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.
Similarly in another case, World Thrust Films, Inc. v. International Family Entertainment, Inc., 41 F.3d 1454 (C.A.11 (Fla.), 1995), U.S. District Judge 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.
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 07-10004
Non-Argument Calendar
________________________
D. C. Docket No. 04-01134-CV-ORL-28DAB
249 Fed. Appx. 116; 2007 U.S. App. LEXIS 22606
WILLIAM P. COLLINS, JR.,
Plaintiff-
Counter Defendant-
Appellant,
versus
LAKE HELEN, L.P.,
a.k.a. Lake Helen, Limited Partnership,
a.k.a. Lake Helen, Ltd.,
Defendant-
Counter Claimant-
Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
U.S. Dist. Judge John Antoon II
Magistrate David A. Baker
(September 20, 2007)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
William P. Collins leased property in Volusia County, Florida from Lake Helen, L.P., for almost nine years. But shortly after Lake Helen’s general partner sold his interest in the partnership in 2004, Collins received notice to vacate the premises. Collins responded by suing Lake Helen in Florida state court, asserting that improvements he had made on the property entitled him to an equitable lien in the amount of those improvements. After Lake Helen removed the case to federal court, the magistrate judge dismissed Collins’ complaint for want of prosecution. On appeal, Collins raises two issues: (1) whether the district court abused its discretion in dismissing his complaint; and (2) whether the district court abused its discretion by failing to sanction Lake Helen for discovery abuses. For the reasons set forth below, we vacate the dismissal of Collins’ complaint but affirm the decision not to award discovery sanctions.
I.
The underlying dispute in this case arose from a real estate venture in Volusia County, Florida. Between 1995 and 2003, Collins entered into a number of lease agreements with Lake Helen, almost all of which included an option for Collins to purchase the land. During those years Collins allegedly made
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improvements to the property, including repairs, land clearing, debris removal, and excavation. In February 2003, Collins and Lake Helen entered into a verification agreement that granted Collins a non-exclusive right to sell the property. Under that agreement, if Collins orchestrated a successful sale of the property, he would pay the first $4 million to Lake Helen’s general partner, Fredrick Steudler, and pocket the balance. Collins characterizes the agreement as a joint venture.
Collins did not sell the property. Instead, in June 2004 Steudler apparently sold his interest as general partner in Lake Helen to Steven Gatton and gave Collins a 15-day notice to vacate. Instead of vacating the property, Collins sued Lake Helen in state court on June 30, 2004, seeking an equitable lien on the property for the value of the improvements he allegedly made during his tenancy. Lake Helen removed the case to federal court on July 26 and filed a counterclaim for an alleged breach of the lease between Lake Helen and Collins. Lake Helen also filed an eviction action in state court to remove Collins from the premises, an action that proved successful and resulted in Collins’ eviction in October 2004.
The ensuing litigation on Collins’ equitable lien claim has generated numerous motions for deadline extensions from both sides. Among the stated reasons for the extensions were: (1) hurricanes; (2) illnesses; (3) vacations; (4)failure of witnesses to show up for depositions; (5) unavailability of out of state
3
witnesses; and (6) failure to submit discovery documents. The court granted almost all of the parties’ motions for extended deadlines.
Eventually the court grew weary of granting more time extensions. And after the parties failed to prepare a final joint trial statement, the magistrate judge’s patience was gone. The responsibility for preparing the joint statement originated in a scheduling order dated February 2, 2005, which required the parties to meet in person to prepare the statement no later than July 5, 2006. Once prepared, the statement was to be filed by July 18, 2006.
Apparently, Collins placed little value on getting the statement filed. When the July 18th filing deadline arrived, he filed a motion to extend the filing deadline by one month to August 18th. Lake Helen objected to the extension, but after hearing arguments from both parties, the magistrate judge extended the filing deadline to September 15, 2006. Lake Helen attempted to get the statement completed. In fact, Lake Helen went so far as to file a motion to compel Collins to participate in the preparation of the joint statement. Nevertheless, the parties did not meet the September 15th deadline.
On September 25, 2006, the magistrate judge heard arguments on Lake Helen’s motion to compel. At that hearing, the magistrate judge entered an order requiring the joint statement to be filed no later than October 13, 2006. The
4
magistrate judge then told the parties what would happen if the new deadline was not met: “And I say, this may have been implicit, but let me make it explicit: If this deadline isn’t met, I am going to do a report and recommendation to the District Judge that the case be dismissed for a lack of prosecution.”
Despite the magistrate judge’s explicit warning, the parties could not agree on a joint statement before the October 13th deadline. Unfazed, Collins filed yet another motion for an extension of time on October 17th, along with a motion for sanctions against Lake Collins for discovery violations. On October 19, the magistrate judge denied both of those motions.
In addition to denying Collins’ motions, the magistrate judge followed through on his earlier threat to issue a report and recommendation to the district court that the entire case—both Collins’ complaint and Lake Helen’s counterclaim—be dismissed for want of prosecution. In recommending dismissal, the magistrate judge noted that both parties had received adequate time to complete discovery and to prepare the case for trial. He further noted that despite numerous deadline extensions and the court’s “clear directive” to file a final pretrial statement by October 13th, the parties had failed to file that statement. The judge also pointed out that Collins did not even file his motion for an extension of the October 13th deadline until four days after the deadline had
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passed. And when he did file it, Collins blamed everyone from the district court clerk to Lake Helen for the failure to meet the deadline.
On November 29, 2006, the district court adopted the magistrate judge’s report, dismissing Collins’ complaint and Lake Helen’s counterclaim. Collins is appealing both the dismissal of his complaint and the denial of his motion for discovery sanctions.
II.
A.
We review the district court’s dismissal of a case for want of prosecution for an abuse of discretion. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005). “Discretion means the district court has a ‘range of choice, and that its decision will not be disturbed as long as it stays within that range and is not influenced by any mistake of law.’” Id. (quoting Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1324 (11th Cir. 2005)).
On appeal Collins contends that the district court’s dismissal of his complaint constituted an abuse of discretion. To support his contention, Collins points to Betty K. Agencies Ltd., 432 F.3d at 1339, where we stated that:
[A] dismissal with prejudice, whether on motion or sua sponte, is an extreme sanction that may be properly imposed only when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious
6
conduct); and (2) the district court specifically finds that lesser sanctions would not suffice. . . . Moreover, the harsh sanction of dismissal with prejudice is thought to be more appropriate in a case where a party, as distinct from counsel, is culpable.
Id. (quotation marks and citations omitted). Based on the two-pronged test recited in Betty K. Agencies, Collins argues that the district court abused its discretion because: (1) he has not engaged in a pattern of contumacious conduct; (2) any delays in filing the final joint trial statement resulted from his attorney’s misconduct, those delays were not wilful, and they did not amount to a pattern of delay; and (3) neither the district court nor the magistrate judge made a specific finding that lesser sanctions would not suffice to prevent future delays.
1In response Lake Helen argues that the district court did not abuse its discretion because: (1) Collins frustrated all efforts to work together to prepare the joint statement; (2) the magistrate judge extended the filing deadline twice, to no avail; and (3) both parties were clearly and directly informed of the consequences that would accompany a third failure to meet the deadline.
2
1
We also note the statement in the conclusion of Collins’ initial brief that “nothing short of ‘clairvoyance’ would have enabled Collins or his counsel to have anticipated that the court, or any court, would approve dismissal for want of prosecution under the facts of this case.” That assertion is absurd. The transcript of the September 25th hearing indicates that Collins was specifically informed by the magistrate judge that his complaint would be dismissed for want of prosecution if the joint statement was not filed by October 13, 2006.2
Although Lake Helen’s counterclaim was also dismissed, it is not appealing the dismissal order.
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B.
The district court possesses the inherent power to police its docket. Link v. Wabash Railroad Co., 370 U.S. 626, 629–30, 82 S. Ct. 1386, 1388 (1962). “The sanctions imposed can range from a simple reprimand to an order dismissing the action with or without prejudice.” Mingo v. Sugar Cane Growers Co-op. of Fla., 864 F.2d 101, 102 (11th Cir. 1989). Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a party’s complaint “[f]or failure . . . to prosecute or to comply with . . . any order of the court.”
But dismissal under Fed. R. Civ. P. 41(b) is appropriate only if “(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.” Betty K. Agencies Ltd., 432 F.3d at 1339; Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (reciting two-pronged test for dismissal); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983) (same); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980) (same).Although it must find that lesser sanctions would not suffice to remedy the inappropriate conduct, the district court’s finding can be explicit or implicit. See Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006); Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999); Goforth, 766 F.2d at 1535. But
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we have never held that the district court need not make that finding at all. Hildebrand, 622 F.2d at 181.
As to the first prong of our two-pronged test, the district court did not abuse its discretion in finding that Collins engaged in a clear pattern of delay. Collins did not submit a joint statement before any of the three deadlines set by the court. After missing the third deadline, Collins delayed four days before bothering to file another motion to extend the filing deadline. And when he finally did file that motion, he failed to accept responsibility for the missed deadline—instead blaming the district court’s clerk and Lake Helen.
Whether the district court or the magistrate judge satisfied the second prong, which requires an explicit or implicit finding that lesser sanctions would not suffice, is less clear. Betty K. Agencies Ltd., 432 F.3d at 1339.
Neither the magistrate judge’s report and recommendation nor the district court’s order contains any indication that lesser sanctions were considered. The district court’s order contains only the usual language adopting the magistrate judge’s report. And the magistrate judge’s report states only that the parties had received “fair warning” of what would happen if they did not meet the October 13th deadline for filing the joint pretrial statement. Given the lack of any indication that other sanctions were considered, the pivotal issue in this case is whether the magistrate9
judge’s warning to the parties that it would dismiss the case for want of prosecution if they did not meet the October 13th deadline amounts to an implicit finding that “lesser sanctions would not suffice.” Goforth, 766 F.2d at 1535.
Although the magistrate judge undoubtedly considered dismissal, there is no indication that he considered other sanctions. And the facts of this case are distinguishable from other cases where we have found the district court’s consideration of lesser sanctions to be implicit. For example, in Zocoras, the defendant himself committed the misconduct that warranted dismissal by intentionally misidentifying himself before the court. See Zocaras, 465 F.3d at 484. Unlike Zocaras, the misconduct here appears to have been perpetuated primarily by Collins’ counsel.
Likewise, in Gratton, the plaintiff had not only failed to meet filing deadlines, he also had facilitated the spoliation of evidence and had already received two lesser sanctions. Gratton, 178 F.3d at 1374–75. Here, the magistrate judge pointed out that Collins had previously moved to extend six filing or discovery deadlines, but four of those six motions were either unopposed or were made jointly with Lake Helen. Additionally, Collins has not previously been sanctioned in this case.
Furthermore, Collins’ misconduct does not rise to the same level of
10
egregiousness as the misconduct in cases where we affirmed the district court’s dismissal. See Goforth, 766 F.2d at 1535. In Goforth, the plaintiffs’ attorney had failed to meet numerous filing deadlines and did not show up for court on the first day of trial. The defendants, who were physicians, were harmed by the attorney’s misconduct because they had either cancelled or postponed three-days worth of work to attend the trial. Id. Consequently, the district court dismissed the plaintiff’s case for want of prosecution, and we affirmed. Id. Here, there is no allegation that Collins’ attorney failed to appear at any hearings, and the trial had not yet started.
Instead, the facts of this case are similar Mingo, 864 F.2d at 102, where we noted that:
The district court did mention that earlier in the litigation the cause had come close to dismissal; in fact, the court had warned plaintiff on at least two prior occasions that further delay might yield dismissal. In its order finally disposing of the action, the court concluded that dismissal was warranted because “it would be unfair to defendant to allow this unhappy litigation to drag on longer than it already has,” and further, that “the circumstances of this case cry out for such a ‘just, speedy, and inexpensive determination.’”
Id. Yet, despite the warnings from the district court, we held in Mingo that:
“Because the sanction of dismissal with prejudice is so unsparing, however, we hesitate to infer from this language that the trial court reflected upon the wide
11
range of sanctions at its disposal and concluded that none save dismissal would spur this litigation to its just completion.” Id.
Similarly, counsel for Collins was warned that her client’s complaint was one missed deadline away from dismissal for want of prosecution. The magistrate judge was understandably frustrated by Collins’ repeated failure to complete the final joint pretrial statement.
However, despite the inexcusable behavior by counsel for Collins, there is nothing in the magistrate judge’s report indicating that he considered other sanctions and found them inadequate to address the problem at hand. Therefore, the second prong of our two-pronged test for dismissing a case for want of prosecution has not been satisfied. That does not mean that after explicit consideration of other sanctions on remand a dismissal would be an abuse of discretion. We do not have that issue before us and intimate no view on it.We do note, for whatever the district court may find it worth, that the vacation “of the dismissal with prejudice does not deprive the district court of the authority to impose lesser sanctions against the plaintiff, or disciplinary action against the attorney, if the Court decides such would be appropriate under the established law and the facts of this case.” Ford v. Fogarty Van Lines, Inc., 780 F.2d 1582, 1583 (11th Cir. 1986).
III.
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Collins’ second contention is that the magistrate judge abused his discretion by denying his motion for discovery sanctions. The basis of that motion was that Lake Helen had withheld discoverable business records. In denying the motion for sanctions, the magistrate judge credited Lake Helen’s response that it had “produced everything in [its] possession” and denied the motion as “inexcusably untimely and otherwise without merit.”
Collins now argues (1) that Lake Helen did not produce all of its records and (2) that by withholding those returns, Lake Helen frustrated his efforts to identify the general and limited partners of Lake Helen at the time the property in Volusia County was sold. Lake Helen responds that (1) it produced all of the documents that the magistrate judged ordered it to produce; and (2) the magistrate judge’s report and recommendation supports its position.
We review the magistrate judge’s determinations on discovery sanctions for an abuse of discretion. See Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997). Here, Collins has pointed to no evidence rendering unreasonable the magistrate judge’s decision to accept Lake Helen’s statement that it had submitted all discoverable documents. Therefore, we cannot say that the magistrate judge abused his discretion by denying Collins’ motion for sanctions.
IV.
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Insofar as the judgment of the district court dismisses the complaint, it is
VACATED and the case is REMANDED for further proceedings consistent with this opinion. Insofar as the order denying the motion for sanctions is concerned, it is AFFIRMED.14
John Antoon II, presiding
David A. Baker, referral
Date filed: 07/26/2004
Date terminated: 11/30/2006
Date of last filing: 03/14/2008
Case Summary
| Office: Orlando | Filed: 07/26/2004 | |
| Jury Demand: None | Demand: | |
| Nature of Suit: 220 | Cause: 28:1332 Diversity-(Citizenship) | |
| Jurisdiction: Diversity | Disposition: Dismissed - Other | |
| County: Dade | Terminated: 11/30/2006 | |
| Origin: 2 | Reopened: | |
| Lead Case: | None | |
| Related Case: | None | Other Court Case: None |
| Def Custody Status: | ||
| Plaintiff: William P. Collins, Jr. | represented by | Astrid De Parry |
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| Defendant: Lake Helen L.P. | represented by | John J. Shahady |
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| Counter Claimant: Lake Helen L.P. | represented by | John J. Shahady |
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| Counter Defendant: Lake Helen L.P. | represented by | John J. Shahady |
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| Counter Defendant: William P. Collins, Jr. | represented by | Astrid De Parry |
|
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| Mediator: David U. Strawn |
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.
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.
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.
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.
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.
The core allegations are fully documented below and include, but are not limited to:
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Lying and intentionally misrepresenting the law.
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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.
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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.
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Allowing scores of motions to languish without deciding them, including discovery and summary judgment motions.
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Abusing the contempt process by initiating an invalid sua sponte issue pre-filing injunction. See mmason.freeshell.org/SuaSponte.htm . Judge Graham jailed a man for 41 days and five years of probation on a clearly void sua sponte issued pre-filing injunction.
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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
BACKGROUND
“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.
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)
In Test Masters
Educational Services, Inc. v. Singh, 428 F.3d
559, 578 (Fed. 5th Cir., 2005), the district court “enjoined Singh from
communicating directly with, threatening, or harassing Test Masters
Educational Services, Inc., its employees, its staff, or TES's counsel,
counsel's employees, or counsel's staff.”
The Fifth Circuit, (citing Alexander v. United States, 509 U.S.
544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), defined “prior
restraints” thusly:
Prior restraints are "administrative
and judicial orders forbidding certain communications when issued in
advance of the time that such communications are to occur."
To quote selectively from the district court, the court found that the
parties had demonstrated an "immaturity" and "mean-spirited[ness]," and
that Singh was pursuing "vexatious litigation." However, despite the
perhaps need of these parties to never speak again, the court did not
detail, and the record does not reflect, any "exceptional circumstances"
to justify permanently enjoining Singh from generally communicating with
TES, TES's counsel and their staff and employees. The district court's
order enjoining Singh from communicating with TES employees, TES's
counsel, and its counsel's employees was a prior restraint limiting
Singh's first amendment rights, and because the injunction order is not
supported by exceptional circumstances, it is an unconstitutional
restraint on Singh's free speech rights. *** The cantankerous
relationship between these parties is clearly evident from the record in
this case. There is enough evidence presented in the record to justify
an injunction order prohibiting Singh from threatening or harassing TES,
its employees, its staff, TES's counsel, counsel's employees, or
counsel's staff. However, the injunction here went beyond enjoining
harassing and threatening conduct. The district court's order swept too
broadly when it prohibited all communication between Singh and TES
employees, staff or TES's counsel, counsel's employees or counsel's
staff.
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).
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