Commercial Litigation and Arbitration

Rule 16(f) Sanctions — Pro Se Litigants Not Entitled to Disobey Two Orders before a Default or Dismissal Can Be Declared — Extrajudicial Rudeness Separately Sanctioned and Forms Part of Basis for Default Dismissal

Maus v. Ennis, 2013 U.S. App. LEXIS 5468 (11th Cir. Mar. 20, 2013):

John Ennis, proceeding pro se, appeals the district court's grant, in part, of a default judgment in favor of David Maus and Mark Ornstein (collectively, the "plaintiffs") as a sanction against Ennis, the defendant, in their action filed pursuant to the Anticybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d) and Cyberpiracy Protection for Individuals ("CPI"), 15 U.S.C. § 8131(2). On appeal, Ennis argues that the district court (1) erroneously sanctioned him with a default judgment without providing him with at least two opportunities to comply with a discovery order; (2) showed biased against him by refusing to use his religious names; and (3) erroneously entered the default judgment despite evidence that he did not violate the ACPA. For the reasons set forth below, we affirm the district court's partial grant of a default judgment against Ennis.***On December 21, 2010, Maus initiated a civil action against Ennis, and Ornstein later joined as a plaintiff. Subsequently, Ennis, proceeding pro se, filed a motion, requesting that the court require all parties to address him by his religious names. The district court denied the motion.

Ennis then filed a motion for the recusal of District Court Judge Gregory A. Presnell pursuant to 28 U.S.C. § 455(a) and (b), alleging that Judge Presnell had shown "prejudice and bigotry" against him and all of the members of the "Temple of 'Hayah" ("TOH") by refusing to recognize Ennis's religious names. The district court denied Ennis's motion for recusal, finding that no reasonable person could conclude that the court's references to his legal name were evidence of bias, prejudice, or a lack of impartiality. Further, the court noted that "Ennis ha[d] adopted a posture of rudeness and disrespect toward the other parties," and it warned that, if Ennis's disrespectful behavior continued, the court could impose sanctions. Ennis filed two additional recusal motions, both of which were denied.

Subsequently, the plaintiffs filed a motion for sanctions, alleging that Ennis had sent them harassing e-mails, published a defamatory internet article, and refused to communicate with their counsel. Additionally, on June 13, 2011, Maus and Ornstein filed a second amended complaint, alleging that, in November 2010, Ennis "came under the false impression that he or his company had been defamed on the David Maus VW North Google Maps website." As a result, Ennis became angry and sent several threatening e-mails to Maus's counsel. The complaint alleged that, in the e-mails, Ennis claimed that Adoni International Services, Inc. ("AIS") had acquired multiple domain names that included the names Maus and Ornstein. Further, Ennis has several aliases such as "God" and "Rabbi Sollog Adoni," and he purchased the domain names either anonymously or through an alias or fictitious business entity. Further, to the extent that the domain names were registered by a business entity, it was merely Ennis's "shell or alter-ego."

The complaint further alleged that some of the domain names included the names of car dealerships in which Maus has a legal interest. Further, Maus's name is "distinctive and famous" due to his ownership interest in numerous car dealerships throughout Florida, where he regularly appears in television advertisements for his dealerships. Thus, his name and likeness are representative of, and associated with, those dealerships. Finally, Ennis does not intend to use the domain names for any legitimate purpose, and he demanded a financial settlement from Maus in exchange for the domains.


After the plaintiffs submitted their amended complaint, the magistrate judge issued a report and recommendation that their motion for sanctions be granted, in part. Specifically, to the extent that the motion sought an order requiring Ennis to litigate in good faith, the request was unnecessary. As to the part of the motion to be granted, the magistrate found that Ennis had posted an internet article, alleging that Ornstein was a "racist and a bigot who should be disbarred." Further, Ennis's conduct was "reprehensible," and he had "acted intentionally, in bad faith, and for oppressive reasons." Because the court had previously warned Ennis against "rudeness and disrespect" toward the court and other parties, sanctions were warranted. Thus, the magistrate recommended that the court admonish Ennis and advise him that "any future rudeness or disrespect to counsel or the [c]ourt" would result in more severe sanctions, which could include "monetary sanctions, the striking of his pleadings[,] and the entry of a default judgment against him." The district court adopted the magistrate's report and recommendation.

On October 3, 2011, after the plaintiffs filed a motion to compel Ennis to submit discovery responses, the district court ordered Ennis to produce all the requested documents and sworn answers to the interrogatories within ten days. The court warned that Ennis's "failure to timely and fully comply with the terms of this [o]rder may result in the imposition of sanctions, which may include the imposition of monetary sanctions, the striking of pleadings or defenses or other sanctions, as appropriate."

On October 17, 2011, the plaintiffs filed a motion for sanctions, including the entry of a default judgment and dismissal of Ennis's counterclaim, alleging that he had submitted incomplete discovery responses. In response, Ennis alleged that much of the requested information was "privileged" due to his religious activity and his involvement with national and international security matters.

In December 2011, the magistrate judge issued a report and recommendation that the district court grant the plaintiffs' motion for sanctions. The magistrate found that Ennis failed to comply with the court's discovery order. Further, by failing to file timely objections to the discovery requests, Ennis had waived any objections based on privilege. Moreover, Ennis failed to establish any recognizable privilege, and he made no showing that the requested information related to any national or international security matters. Ennis appeared to believe that he was not required to comply with federal rules or court orders, as his responses to the discovery requests were "evasive and willfully incomplete," and as such, sanctions were "clearly warranted." As to the severity of the sanction, the magistrate noted that, if Ennis's failure to comply with the discovery order had been his first or only misconduct, lesser sanctions may have been appropriate. However, based on Ennis's behavior, the court was convinced that no lesser sanction would be sufficient to compel Ennis's cooperation. Specifically, Ennis had "persistently acted with rudeness and disrespect. . . and ha[d] been admonished for it, repeatedly."

Over Ennis's objections, on December 16, 2011, the district court adopted the magistrate's report and recommendation, and granted the plaintiffs' motion for sanctions. The court ordered that Ennis's answer to the second amended complaint and his counterclaim be stricken, and it entered a default judgment against him. Further, the court instructed the plaintiffs that they must file a motion for entry of a default judgment. On January 6, 2012, the plaintiffs filed such a motion, requesting, among other things, reasonable attorney's fees and statutory damages.***

We review the district court's imposition of sanctions for abuse of discretion. Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998). "A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous. Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1336 (11th Cir. 2002). A district court may impose sanctions for litigation misconduct under its inherent power. Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir. 2009). Further, Fed.R.Civ.P. 16(f) provides for sanctions as follows:

(1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney:

(A) fails to appear at a scheduling or other pretrial conference;

(B) is substantially unprepared to participate--or does not participate in good faith--in the conference; or

(C) fails to obey a scheduling or other pretrial order.

(2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.

Fed.R.Civ.P. 16(f). Sanctions under Rule 16(f) are "designed to punish lawyers and parties for conduct which unreasonably delays or otherwise interferes with the expeditious management of trial preparation." Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). Under Rule 37, the district court may, among other sanctions, render a default judgment against the disobedient party. Fed.R.Civ.P. 37(b)(2)(A)(vi). However, in order to impose the severe sanction of a default judgment, the district court must make a finding of willfulness or bad faith failure to comply with a discovery order. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993). Violations of a court order "caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment." See id. Moreover, a default judgment is appropriate only as a "last resort, when less drastic sanctions would not ensure compliance with the court's orders." Id.

Finally, while the pleadings of pro se litigants are held to a less stringent standard than pleadings drafted by attorneys, Tannenbaum, 148 F.3d at 1263, pro se litigants still must comply with procedural rules, Moton v. Cowart, 631 F.3d 1337, 1340 n.2 (11th Cir. 2011). Specifically, we have held that pro se litigants are subject to the Federal Rules of Civil Procedure, including sanctions for misconduct and for failure to comply with court orders. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.1989).***

The district court did not abuse its discretion when it imposed a default judgment against Ennis as a sanction for his disrespectful conduct and his refusal to participate in discovery. On appeal, Ennis fails to address the district court's finding that he had exhibited rude and disrespectful behavior throughout the litigation. Thus, it appears that Ennis has abandoned any challenge to the district court's factual finding that his behavior was rude and disrespectful. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (holding that issues not briefed on appeal by a pro se litigant are deemed abandoned). Regardless, the district court's finding regarding Ennis's misbehavior was supported by the record. Specifically, Ennis accused the district court of "ignorance" and "incompetency," and he sent numerous harassing e-mails to the plaintiffs, accusing Ornstein of being a "bigot" and a "racist." As such, the district court did not abuse its discretion for entering a default judgment, in part, as a sanction for Ennis's disrespectful behavior. See Eagle Hosp. Physicians, LLC, 561 F.3d at 1306.

Further, as to Ennis's failure to comply with the court's discovery order, he repeatedly asserts that a pro se litigant must fail to comply with at least two discovery orders to justify a default judgment. However, he does not provide, and research does not reveal, any binding legal authority in support of his contention. To the contrary, pro se litigants are required to comply with the district court's procedural rules and may be subjected to sanctions for failing to do so. See Moton, 631 F.3d at 1340 n.2; Moon, 863 F.2d at 837. Here, before imposing the default judgment, the district court complied with its obligation to make findings that Ennis had acted willfully and with bad faith and that a less severe sanction would have been insufficient. Malautea, 987 F.2d at 1542. Specifically, the court noted that, if Ennis's failure to comply with the discovery order had been his only misconduct, lesser sanctions may have been appropriate. The court found, however, that Ennis had exhibited a pattern of conduct that showed disrespect for the court's rules and a lesser sanction would have been insufficient to ensure his cooperation. Nothing in the record suggests that a lesser sanction would have been adequate, as Ennis had already been admonished for his misconduct, and the court repeatedly warned him that further misconduct could result in sanctions, including a default judgment.

Additionally, the court found that Ennis's discovery responses were "evasive and willfully incomplete," and on appeal, he does not allege that his incomplete answers were the result of negligence or a misunderstanding. Id. Instead, he suggests that he was not required to comply with the court's discovery order because the requested information and documents were "privileged." However, he fails to address the district court's finding that he did not file any timely objections to the discovery requests based on a recognized privilege. In sum, Ennis has failed to establish that the district court abused its discretion in determining that a default judgment was appropriate based on his disrespectful behavior and his refusal to participate in discovery.

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