Commercial Litigation and Arbitration

Passing Reference to Issue in Appellate Brief Waives It for Failure of Argument — Liberal Construction of Pro Se Pleadings — Disregard of Court Order Justifies Rule 41(b) Dismissal

Levinson v. WEDU-TV, 2013 U.S. App. LEXIS 2242 (11th Cir. Feb. 1, 2013):

We review dismissals for failure to comply with a court order, pursuant to Fed. R. Civ. P. 41(b), for abuse of discretion. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). If a plaintiff fails to comply with a court order, this Circuit has held that a district court may sua sponte dismiss the case with or without prejudice under Rule 41(b) or its inherent powers where there is both a clear record of willful conduct and a finding that lesser sanctions are inadequate. See Brutus v. IRS, 393 F. App'x. 682, 683 (11th Cir. 2010) (citing Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)); Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006). Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will be liberally construed. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). ***

On appeal, Levinson generally reiterates arguments made below relating to the merits of his claims for access to television broadcasts as a presidential candidate under 47 U.S.C. § 312(a)(7) and § 315(a). He does not challenge the dismissal for violating Rule 8(a) and for failure to comply with a court order under Rule 41(b), except to state that his 500-page "petition" and 300-page "Addendum" established violations of the First Amendment. The closest he comes to challenging the district court's finding that he did not comply with a court order is to say that "Appellant did not violate the Federal Rules of Procedure in his original Brief," without additional explanation or citing any authority to prove his contention. Without more Levinson has abandoned any argument that the district court erred. See Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) ("A passing reference to an issue in a brief is not enough, and the failure to make arguments and cite authorities in support of an issue waives it.").

Even if we construe Levinson's brief liberally in light of his pro se status, we cannot say the district court erred in dismissing his complaint without prejudice, where, in response to the court's order to submit a short and plain statement of his claim, Levinson filed a 263-page amended complaint. Rather, the district court's findings that Levinson violated Rule 8, and that no sanction short of dismissal would work, are supported by the record.

Also, even assuming the district court was wrong to sanction Levinson by dismissing his case, his complaint had no merit because the First Amendment does not compel the broadcast stations named in the complaint to grant two hours of broadcast time to Levinson. See Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 675, 118 S. Ct. 1633, 1640 (1998); Belluso v. Turner Commc'ns Corp., 633 F.2d 393, 400-01 (5th Cir. 1980). To the degree that Mr. Levinson's claim is that private broadcasters did not offer him equal access--as opposed to merely access--his remedy is to file a complaint with the FCC under 47 U.S.C. § 315(a). But § 315(a) provides no private cause of action and the district court had no jurisdiction to consider such claims. Belluso, 633 F.2d at 397. Finally, Levinson failed to allege facts which support a plausible claim for relief against the FCC on any ground other than (possibly) an October 1980 letter sent in response to his complaints at the time. In re Complaint of Michael Stephen Levinson Against Television Station Licensees, 87 F.C.C.2d 433 (1980). To the extent Levinson's claims arose from this letter, they are time-barred. See 28 U.S.C. § 2401(a) (six-year statute of limitations for civil actions against the United States). Levinson's complaint does not state a viable cause of action, so it was properly dismissed.

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