USCA11 Case: 21-10716 Date Filed: 11/07/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10716
____________________
GLOBAL DIGITAL SOLUTIONS, INC.,
Plaintiff-Appellee,
versus
GRUPO RONTAN ELECTRO METALURGICA, S.A.,
JOAO ALBERTO BOLZAN,
JOSE CARLOS BOLZAN,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cv-80106-DMM
____________________
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2 Opinion of the Court 21-10716
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge:
Global Digital Solutions, Inc. contracted to acquire Grupo
Rontan. The acquisition fell apart when Rontan failed to satisfy cer-
tain closing conditions, and Global subsequently filed suit to force
the sale. Rontan almost entirely failed to participate in the district
court proceedings, and the court granted Global a default judg-
ment. Rontan re-engaged in the litigation after the entry of the de-
fault judgment but in time to participate in an evidentiary hearing
on the issue of damages. Even then, though, Rontan failed to raise
certain arguments until it submitted its proposed findings of fact
and conclusions of law, after the briefing and evidentiary hearing
had concluded. Rontan now seeks on appeal to make the argu-
ments that it should have timely made to the district court. Because
Rontan forfeited its liability arguments below, and because the ev-
idence showed to a reasonable certainty both that Global suffered
damages and the amount of those damages, we affirm.
I
We begin by addressing Rontan’s argument that by seeking
specific performance of the acquisition agreement despite Rontan’s
failure to satisfy certain closing conditions, Global waived those
conditions. While this might have been a winning argument had
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21-10716 Opinion of the Court 3
Rontan presented it to the district court in a timely fashion,1 it
failed to do so.
“[I]f a party hopes to preserve a[n] . . . argument, . . . [it] must
first clearly present it to the district court . . . in such a way as to
afford the district court an opportunity to recognize and rule on it.”
CSX Transp., Inc. v. General Mills, Inc.,
846 F.3d 1333, 1336–37
(11th Cir. 2017) (alterations in original). It follows that a party for-
feits an argument by failing to present it to the district court in a
timely fashion. See United States v. Gonzalez,
834 F.3d 1206, 1217
(11th Cir. 2016) (explaining that “forfeiture is the failure to make the
timely assertion of a right” (quoting United States v. Olano,
507 U.S.
725, 733 (1933))).
Rontan forfeited its contention that Global waived the clos-
ing conditions by failing to timely present it to the district court.
Rontan first raised the issue in its proposed findings of fact and con-
clusions of law, after responsive briefing and the evidentiary hear-
ing on damages. The district court expressly declined to consider
the issue on the ground that Rontan was “afforded ample oppor-
tunity to raise this argument . . . [and] failed to do so.”
Forfeiture itself isn’t the death knell for Rontan’s claim—we
may forgive a forfeiture on consideration of five factors, see Access
Now, Inc. v. Southwest Airlines Co.,
385 F.3d 1324, 1332 (11th Cir.
1 We do not opine one way or the other on this issue.
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4 Opinion of the Court 21-10716
2004)—but Rontan hasn’t argued any of the forfeiture exceptions.
We decline to defend Rontan’s forfeiture sua sponte.
Because Rontan failed to raise the closing-conditions-waiver
issue until after the damages hearing, when it submitted its pro-
posed findings of fact and conclusions of law, it forfeited the issue.
We accordingly affirm the district court’s ruling for Global on lia-
bility.
II
What remains is Rontan’s challenge to the district court’s
damages award. We review findings of fact for clear error. Trav-
elers Prop. Cas. Co. of Am. v. Moore,
763 F.3d 1265, 1268 (11th Cir.
2014). “Proof [of damages] must show with reasonable certainty
that the plaintiff suffered damages and that the damages flowed as
the natural and proximate result of defendant’s wrongful conduct.”
Aldon Indus., Inc. v. Don Myers & Assocs., Inc.,
517 F.2d 188, 191
(5th Cir. 1975).
The evidence on which the district court relied shows just
that. The district court used Global’s damages expert’s estimate of
Rontan’s outstanding tax liabilities—which relied on KPMG’s dili-
gence report, the deposition of KPMG’s due diligence manager, and
publicly available information on Rontan’s tax liabilities—and the
court confirmed the expert’s estimate against estimates provided by
Rontan’s CFO and a Brazilian tax attorney. The district court cal-
culated the value of real estate encumbrances on Rontan’s proper-
ties based on a public-records search and identified outstanding debt
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21-10716 Opinion of the Court 5
based on a 2018 audit. In none of these calculations did the district
court clearly err.
The district court did not abuse its discretion by excluding
Rontan’s damages expert and other evidence that it sought to intro-
duce at the damages hearing. Where, as here, a party fails to pro-
vide an expert report as required by Federal Rule of Civil Procedure
26(a)(2), “the party is not allowed to use that . . . witness to supply
evidence . . . at a hearing[.]” Fed. R. Civ. P. 37(c)(1). Rontan did
not timely provide Global with its expert report, and therefore the
district court did not abuse its discretion in excluding the expert.
Similarly, Federal Rule of Civil Procedure 37(b)(2)(A)(ii) authorizes
a district court to prohibit a party “from introducing . . . matters
into evidence[]” that were the subject of its adversary’s discovery
requests to which it failed to respond despite court orders. See OFS
Fitel, LLC v. Epstein, Becker & Green, P.C.,
549 F.3d 1344, 1363
(11th Cir. 2008). Global’s discovery requests included information
on delinquent tax obligations and the value of Rontan’s shares. The
requests related to—and Rontan’s failure to respond ultimately
prejudiced—Global’s damages calculations. Rontan failed to turn
over these documents even though the magistrate judge had com-
pelled their production, and thus the district court did not abuse its
discretion by excluding them at the hearing.
Because the district court relied on sufficient and reasonably
certain evidence in calculating damages, we affirm the court’s
award.
* * *
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6 Opinion of the Court 21-10716
For the foregoing reasons, we hold that Rontan forfeited the
closing-conditions-waiver issue and that the district court’s dam-
ages calculations were reasonably certain. Accordingly, the district
court’s judgment is affirmed.
AFFIRMED.
