David Maus v. John Patrick Ennis , 513 F. App'x 872 ( 2013 )

Case: 12-12597 Date Filed: 03/20/2013 Page: 1 of 18
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12597
Non-Argument Calendar
________________________
D.C. Docket No. 6:10-cv-01904-GAP-DAB
DAVID MAUS,
MARK ORNSTEIN,
Plaintiffs-Counter-
Defendants-Appellees,
versus
JOHN PATRICK ENNIS,
Defendant-Counter Claimant-
Third Party Plaintiff - Appellant,
TOM BUCK, et al.,
Third Party Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 20, 2013)
Case: 12-12597 Date Filed: 03/20/2013 Page: 2 of 18
Before HULL, JORDAN and FAY, Circuit Judges.
PER CURIAM:
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.
I.
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
2
Case: 12-12597 Date Filed: 03/20/2013 Page: 3 of 18
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
3
Case: 12-12597 Date Filed: 03/20/2013 Page: 4 of 18
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.
Based on these factual allegations, the plaintiffs alleged: (1) violations of the
ACPA, 15 U.S.C. § 1125(d) (“Count One”); (2) invasion of privacy (“Count
Three”); and (3) violations of the CPI, 15 U.S.C. § 8131 (“Count Four”). In Count
Two, the plaintiffs requested injunctive relief to prohibit Ennis’s continued use of
the domain names. In response, Ennis filed an answer and counterclaim.
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
4
Case: 12-12597 Date Filed: 03/20/2013 Page: 5 of 18
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
5
Case: 12-12597 Date Filed: 03/20/2013 Page: 6 of 18
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
6
Case: 12-12597 Date Filed: 03/20/2013 Page: 7 of 18
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.
Ennis raised numerous objections to the plaintiffs’ motion for a default
judgment, including that he did not register the domains, and that they were “cyber
grip[e] sites,” which qualify as “fair use” and are protected as free speech.
After an evidentiary hearing, the magistrate issued a report and
recommendation that the district court grant, in part, and deny, in part, the
plaintiffs’ motion for entry of default judgment. By operation of the default, the
magistrate took the well pleaded allegations contained in the second amended
complaint as true. As to Count One, which alleged violations of the ACPA, there
was “more than sufficient evidence of bad faith.” However, while the complaint
established that the name “David Maus” was entitled to trademark protection, there
was no showing that the name “Mark Ornstein” was entitled to such protection.
Additionally, the magistrate found that, as to Maus’s ACPA claim, the
record showed that Ennis, with a bad faith intent to profit, registered and used
domain names that incorporated Maus’s trademark without any reasonable grounds
to believe that the use was “fair use or lawful.” Further, the complaint alleged, and
7
Case: 12-12597 Date Filed: 03/20/2013 Page: 8 of 18
the record reflects, that Ennis controls AIS, the entity that he claims registered the
domain names. The complaint also alleged that Ennis had no legitimate purpose
for registering the domain names and that he threatened and demanded money
from Maus. The magistrate noted that Ennis’s assertion that he was not involved
in the registration of the domain names was foreclosed by the default. Regardless,
substantial evidence at the evidentiary hearing also indicated that Ennis used a
fictitious name to register the domains.
The magistrate found, however, that the complaint was insufficient to entitle
the plaintiffs to a default judgment regarding their request for injunctive relief
(Count Two) and their invasion-of-privacy claim (Count Three). As to Count
Four, the complaint sufficiently pled a CPI violation as to both plaintiffs because it
alleged that Ennis registered the domain names with an intent to profit financially.
For these reasons, the magistrate recommended that the district court grant the
plaintiffs’ motion for entry of a default judgment as to Maus’s ACPA claim and
the CPI claim, and deny it as to the remaining claims.
Over Ennis’s objections, the district court adopted the magistrate’s report
and recommendation. The court rejected Ennis’s argument that he should be
allowed another opportunity to comply with court orders before facing sanctions.
Specifically, Ennis received “numerous warnings” to cease his misbehavior and of
the consequences of failing to do so, and he ignored those warnings. Thus, the
8
Case: 12-12597 Date Filed: 03/20/2013 Page: 9 of 18
court granted, in part, and denied, in part, the plaintiffs’ motion for a default
judgment, consistent with the magistrate’s recommendation. Accordingly, the
court entered a default judgment against Ennis as to Count One (Maus only) and
Count Four (both plaintiffs), dismissed without prejudice Count One (Ornstein
only) and Count Three, and dismissed Count Two.
II.
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.
9
Case: 12-12597 Date Filed: 03/20/2013 Page: 10 of 18
(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
10Case: 12-12597 Date Filed: 03/20/2013 Page: 11 of 18
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).
As a preliminary matter, contrary to the plaintiffs’ argument, Ennis’s appeal
is not untimely as to the district court’s initial December 2011 order imposing
sanctions. See Barfield v. Brierton, 883 F.2d 923, 930-31 (11th Cir. 1989)
(holding that, when reviewing a final judgment, we generally also have jurisdiction
to review “all prior non-final orders and rulings which produced the judgment”).
Here, the district court’s December 2011 order was a non-final order because it
instructed the plaintiffs to file a motion for entry of a default judgment, which the
court later granted, in part, in its final order on April 13, 2012. On May 9, 2012,
Ennis filed a timely appeal of the court’s final order, and as such, we also have
jurisdiction over the prior order. Fed.R.App.P. 4(a)(1)(A).
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.
11
Case: 12-12597 Date Filed: 03/20/2013 Page: 12 of 18
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,
12
Case: 12-12597 Date Filed: 03/20/2013 Page: 13 of 18
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.
III.
We review the district court’s denial of a recusal motion for abuse of
discretion. Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001).
Under § 455(a), a federal judge is required to recuse himself whenever his
13
Case: 12-12597 Date Filed: 03/20/2013 Page: 14 of 18
“impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Recusal is
only appropriate where “an objective, disinterested, lay observer fully informed of
the facts underlying the grounds on which recusal was sought would entertain a
significant doubt about the judge’s impartiality.” United States v. Amedeo, 487
F.3d 823, 828 (11th Cir. 2007). Under § 455(b), a judge should also disqualify
himself where he has a “personal bias or prejudice concerning a party, or a
personal knowledge of disputed evidentiary facts.” 28 U.S.C. § 455(b)(1).
However, judicial rulings unaccompanied by allegations of bias based on an extra-
judicial source “almost never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127
L.Ed.2d 474 (1994).
The district court did not abuse its discretion in denying Ennis’s recusal
motions. On appeal, Ennis identifies no evidence to suggest that the Judge
Presnell’s impartiality could reasonably be questioned by an objective observer or
that he had a personal bias against Ennis. See 28 U.S.C. § 455(a) and (b). Instead,
Ennis’s sole complaint is that the court used his “birth name” or legal name, rather
than his preferred religious names. However, the court’s use of Ennis’s legal name
does not suggest that Judge Presnell lacked impartiality or that Judge Presnell had
a personal bias against Ennis based on an extrajudicial source. Amedeo, 487 F.3d
14Case: 12-12597 Date Filed: 03/20/2013 Page: 15 of 18
at 828; Liteky, 510 U.S. at 555, 114 S.Ct. at 1157. Thus, the district court properly
exercised its discretion in denying Ennis’s recusal motions.
IV.
After a default is entered against a defendant, he is deemed to have admitted
the plaintiffs’ well-pleaded factual allegations, and on appeal, he is barred from
contesting those facts. Eagle Hosp. Physicians, 561 F.3d at 1307. Thus, “[a]
default judgment is unassailable on the merits, but only so far as it is supported by
well-pleaded allegations.” Id. A defendant, on appeal, may challenge the
sufficiency of the complaint, but not the sufficiency of the proof. Id. We review
the sufficiency of a complaint de novo. Id. at 1303.
We have explained that,
Cybersquatting is a form of trademark misuse. This activity is defined
to be the conduct of one who reserves with a network information
center a domain name consisting of the mark or name of a company
for the purpose of relinquishing the right to the domain name back to
the legitimate owner for a price.
Id. at 1307. Under the ACPA, a person commits cybersquatting, if, without regard
to the goods or services of the parties, that person
(i) has a bad faith intent to profit from that mark, including a personal
name which is protected as a mark under this section; and
(ii) registers, traffics in, or uses a domain name that—
15
Case: 12-12597 Date Filed: 03/20/2013 Page: 16 of 18
(I) in the case of a mark that is distinctive at the time of registration of
the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of
registration of the domain name, is identical or confusingly similar to
or dilutive of that mark; or
(III) is a [protected] trademark, word, or name. . .
15 U.S.C. § 1125(d). Similarly, under the CPI statute, a person is liable who
registers a domain name that consists of another person’s name, without the
person’s consent, with the specific intent to profit by selling the domain name to
that person or a third party. 15 U.S.C. § 8131.
As an initial matter, to the extent that the parties dispute the evidence that
was presented at the evidentiary hearing, we cannot review those arguments
because Ennis has not provided a transcript of the hearing on appeal. See
Pensacola Motor Sales Inc. v. Eastern Shore Toyota, LLC, 684 F.3d 1211, 1224
(11th Cir. 2012) (explaining that, under the “absence equals affirmance” rule, “the
burden is on the appellant to ensure the record on appeal is complete, and where a
failure to discharge that burden prevents us from reviewing the district court’s
decision we ordinarily will affirm the judgment”). Thus, to the extent that the
outcome of this appeal depends on a review of the testimony and evidence that was
presented at the evidentiary hearing, we would affirm because the record on appeal
is incomplete. See id.16
Case: 12-12597 Date Filed: 03/20/2013 Page: 17 of 18
Regardless, because the district court entered a default judgment against
Ennis, our review is limited to whether the judgment is supported by the well-
pleaded facts in the complaint. See Eagle Hosp. Physicians, 561 F.3d at 1307. On
appeal, Ennis asserts that his primary argument is that “evidence” showed that AIS
was the legal entity that registered the domain names, and as such, he cannot
personally be held liable. However, Ennis is precluded from challenging the
sufficiency of the proof on appeal, and instead, he is limited to challenging the
sufficiency of the complaint. See id. Here, the complaint sufficiently alleged that
Ennis registered the domain names, either anonymously or through an alias or a
fictitious business entity. Further, the complaint acknowledged Ennis’s allegation
that AIS had registered the domain names, but it alleged that AIS acted merely as
his “shell” or “alter-ego.” The magistrate correctly found that the complaint
alleged that Ennis controlled AIS, and as such, his argument that he was not
involved in registering the domain names was foreclosed by the default. See id.Further, on appeal, Ennis asserts a single, conclusory allegation that Maus does not
own a trademark in the names of his businesses. However, this allegation does not
appear to challenge the sufficiency of the complaint, and as discussed above, Ennis
is precluded from challenging the sufficiency of the proof. See id.Finally, because the well-pleaded allegations in the complaint are taken as
true, Ennis is also precluded from asserting that any use of the domain names was
17
Case: 12-12597 Date Filed: 03/20/2013 Page: 18 of 18
constitutionally protected as fair use or free speech. See id. Here, the complaint
sufficiently alleged that Ennis had no legitimate purpose for registering the domain
names, and that he demanded money from Maus in exchange for them.
For the foregoing reasons, we affirm the default judgment against Ennis.
AFFIRMED.
18