Tim Sundy v. Friendship Pavilion Acquisition Company, LLC ( 2020 )

Case: 19-11391 Date Filed: 03/13/2020 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11391
Non-Argument Calendar
________________________
D.C. Docket No. 2:18-cv-00112-SCJ
TIM SUNDY,
Plaintiff-Appellant,
versus
FRIENDSHIP PAVILION ACQUISITION
COMPANY, LLC,
GARY PICONE,
THOMAS LING,
MICHAEL WEINSTEIN,
ARSENAL REAL ESTATE FUND II-IDF,
L.P.,
GEORGIA DEPARTMENT OF
TRANSPORTATION,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 13, 2020)
Case: 19-11391 Date Filed: 03/13/2020 Page: 2 of 12
Before NEWSOM, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
Tim Sundy, proceeding pro se, appeals the dismissal of his complaint
brought under 42 U.S.C. §§ 1983 and 1985 for alleged violations of his
constitutional rights. His suit arises out of a lease and road-construction dispute in
state court in 2015, and Sundy’s subsequent state-court action against various
parties and state-court judges involved in the litigation (some of which were
removed to federal court). While the state-court action was pending, Sundy filed
the present suit in federal court naming various individuals and entities as
defendants, including (as relevant here): (1) employees in the Hall County clerk’s
office (collectively, the clerk defendants); (2) Christopher Carr, Georgia’s Attorney
General (Carr); and (3) Friendship Pavilion Acquisition Company, LLC, the
Arsenal Real Estate Fund II-IDF, L.P., Gary Picone, Thomas Ling, and Michael
Weinstein (collectively, the Friendship defendants). 1
Liberally construing his briefs, Sundy first asserts on appeal (a) that the
district court erred in dismissing his claims against Carr and the clerk defendants
1
Sundy also named various other parties as defendants, but he abandoned his claims against
them by failing to challenge in his initial brief all or part of the bases for dismissal cited by the
district court. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008); see also Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014) (explaining that if an appellant
does not appropriately challenge in an initial brief one of the grounds on which the district court
based its judgment, he is deemed to have abandoned any challenge to that ground, and the
district court’s judgment should be affirmed).
2
Case: 19-11391 Date Filed: 03/13/2020 Page: 3 of 12
based on the abstention doctrine set out in Younger v. Harris, 401 U.S. 37 (1971),
because, he says, his due process and equal protection claims were not presented to
the state court and are “independent” of the state-court proceedings, 2 and (b) that
the district court erred in not allowing him to amend his complaint. Second, he
argues that the district court erred (a) by dismissing the claim against Friendship as
nonjusticiable because his requested declaratory relief would not redress his
alleged injuries, and (b) by granting Friendship’s motion to set aside entry of
default even though it did not “present[] a meritorious defense.” Finally, he argues
that the removal of documents from the district court’s docket, a delay in fixing
clerical mistakes, and a “secret” ex parte hearing by the court to find the missing
documents violated his right to due process to be fully heard upon a complete
record, “depriv[ed] [him] of his right to avoid cross-examine,” and “nullif[ied] the
confrontation clause of the 6th Amendment.” 3 We will address each contention in
turn.
2
Sundy’s claims are difficult to discern. At times, he seems to contend that various state-court
employees engaged in a conspiracy against him—including by removing papers from the docket
and conducting hearings without him. At other times, he simply (and even more vaguely) asserts
that his due process, equal protection, and access-to-courts rights were violated.
3
Sundy also argues that the district court erred in denying his motion to proceed in forma
pauperis (IFP) as frivolous; however, this is not a final, appealable order. See 28 U.S.C. § 1291.
We note that the proper procedure for challenging the district court’s decision was through a
motion to proceed IFP in this Court, which we denied because his appeal was frivolous.
Moreover, because he paid the requisite filing fee, any issue in this respect is moot. Therefore,
we dismiss his appeal with respect to this issue.
3
Case: 19-11391 Date Filed: 03/13/2020 Page: 4 of 12
I
Sundy first argues (a) that the district court erred in dismissing his claims
against Carr and the clerk defendants based on the Younger abstention doctrine and
(b) that the district court erred in not allowing him to amend his complaint.4
A
In Younger, the Supreme Court held that a federal district court may not
enjoin a pending criminal state-court proceeding except under extraordinary
circumstances. Green v. Jefferson Cty. Comm’n, 563 F.3d 1243, 1250 (11th Cir.
2009); see also Younger, 401 U.S. 37. The Supreme Court has since expanded the
Younger doctrine to include, as relevant here, civil proceedings that “implicate
state courts important interests in administering certain aspects of
their judicial systems.” Green, 563 F.3d at 1250–51 (quotation omitted).
Especially as applied to civil cases, the Younger abstention doctrine is “an
extraordinary and narrow exception to the duty of a district court to adjudicate a
controversy properly before it.” Id. at 1251 (quotation omitted). As such, the
doctrine “only applies where the state proceeding at issue involves orders that are
4
“We review de novo the district court’s grant of a motion to dismiss,” Timson, 518 F.3d at 872,
but review a district court’s decision to abstain on Younger grounds for an abuse of discretion,
Wexler v. Lepore, 385 F.3d 1336, 1338 (11th Cir. 2004). “[W]e review de novo the underlying
legal conclusion of whether a particular amendment to the complaint would be futile. Chang v.
JPMorgan Chase Bank, N.A., 845 F.3d 1087, 1093–1094 (11th Cir. 2017) (quotation omitted).
4
Case: 19-11391 Date Filed: 03/13/2020 Page: 5 of 12
uniquely in furtherance of the state courts’ ability to perform
their judicial functions.” Id. (quotation omitted).
For Younger abstention to apply, certain factors must be met—(1) the state
judicial proceedings must be ongoing, (2) the proceedings must “implicate
important state interests,” and (3) the federal plaintiff must have had “an adequate
opportunity” to raise constitutional challenges in the state proceedings. See 31
Foster Children v. Bush, 329 F.3d 1255, 1274–75 (11th Cir. 2003) (quotation
omitted); see also Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457
U.S. 423, 432 (1982). The first factor is met when a state proceeding is ongoing
and the relief that plaintiff seeks would interfere with it. 31 Foster Children, 329
F.3d at 1276. As for the second factor, the Supreme Court has repeatedly
recognized that states “have important interests in administering certain aspects of
their judicial systems.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12–13 (1987).
With respect to the third factor, “plaintiffs have the burden of establishing that the
state proceedings do not provide an adequate remedy for their federal claims.” 31
Foster Children, 329 F.3d at 1279. “A federal court should assume that state
procedures will afford an adequate remedy, in the absence of unambiguous
authority to the contrary.” Id. (quotation omitted). “The relevant question is not
whether the state courts can do all that Plaintiffs wish they could, but whether the
available remedies are . . . adequate. Id. (alteration omitted) (quotation omitted).
5
Case: 19-11391 Date Filed: 03/13/2020 Page: 6 of 12
Younger abstention applies to claims for injunctive relief as well as claims
for declaratory relief “that would effectively enjoin state proceedings.” Old
Republic Union Ins. Co. v. Tillis Trucking Co., 124 F.3d 1258, 1261, 1263–64
(11th Cir. 1997). Additionally, Younger abstention may apply to § 1983 claims
raising constitutional challenges relating to an ongoing state proceeding. See Doby
v. Strength, 758 F.2d 1405, 1405–06 (11th Cir. 1985).
To the extent that Sundy sought a declaratory judgment stating, among other
things, that the manner in which the state court accepted his pleadings was
unconstitutional, those orders were “uniquely in furtherance of the state court[’s]
ability to perform [its] judicial function[].” See Green, 563 F.3d at 1251
(quotation omitted). Furthermore, each of the Younger abstention factors has been
satisfied here—the state-court proceedings were ongoing and implicated an
important state interest, and Sundy failed to offer any evidence to overcome the
presumption that the state processes can provide an adequate remedy, especially
where he has filed appeals and writs of mandamus in the Georgia Court of Appeals
and Georgia Supreme Court. Accordingly, the district court did not abuse its
discretion by dismissing Sundy’s claims against Carr and the clerk defendants
based on the Younger abstention doctrine.
6
Case: 19-11391 Date Filed: 03/13/2020 Page: 7 of 12
B
Under Federal Rule of Civil Procedure 15(a), “a district court ‘should freely
give leave’ to amend a complaint ‘when justice so requires.’” Chang, 845 F.3d at
1094 (quoting Fed. R. Civ. P. 15(a)(2)). But importantly, “a district court may
properly deny leave to amend the complaint under Rule 15(a) when such
amendment would be futile, such as when the complaint as amended is still subject
to dismissal because, for example, it fails to state a claim for relief.” Id. (quotation
omitted).
Here, an amended complaint would have been futile because further
allegations of similar activity—i.e., assertions that his constitutional rights were
violated, whether in conjunction with a conspiracy to remove papers and hold
secret hearings or otherwise—would have been equally subject to dismissal under
the Younger doctrine. Therefore, the district court did not err in refusing to allow
Sundy leave to amend his complaint.
II
Second, Sundy asserts that the district court erred (a) by dismissing his claim
against Friendship as nonjusticiable, and (b) by granting Friendship’s motion to set
aside entry of default. 5
5
We review questions of subject-matter jurisdiction de novo. Pintando v. Miami-Dade Hous.
Agency, 501 F.3d 1241, 1242 (11th Cir. 2007). We review a district court’s ruling on a motion
7
Case: 19-11391 Date Filed: 03/13/2020 Page: 8 of 12
A
“Any time doubt arises as to the existence of federal jurisdiction, we are
obliged to address the issue before proceeding further.” Atlanta Gas Light Co. v.
Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995). In all cases asserting
claims under the Declaratory Judgment Act—such as this one—“the threshold
question is whether a justiciable controversy exists.” Id. “Congress limited federal
jurisdiction under the Declaratory Judgment Act to actual controversies, in
statutory recognition of the fact that federal judicial power under Article III,
Section 2 of the United States Constitution extends only to concrete ‘cases or
controversies.’” Id.
“The party who invokes a federal court’s authority must show, at an
‘irreducible minimum,’ that at the time the complaint was filed, he has suffered
some actual or threatened injury resulting from the defendant’s conduct, that the
injury fairly can be traced to the challenged action, and that the injury is likely to
be redressed by favorable court disposition.” Id. (quotation omitted). The
Supreme Court has explained that “[t]he requirement of [an] actual injury
redressable by the court, serves several of the implicit policies embodied in Article
III.” Valley Forge Christian Coll. v. Ams. United for Separation of Church &
to set aside an entry of default for abuse of discretion. See Compania Interamericana Export-
Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 950 (11th Cir. 1996).
8
Case: 19-11391 Date Filed: 03/13/2020 Page: 9 of 12
State, 454 U.S. 464, 472 (1982) (citation and quotations omitted). “It tends to
assure that the legal questions presented to the court will be resolved . . . in a
concrete factual context conducive to a realistic appreciation of the consequences
of judicial action.” Id.
Here, even if the district court gave Sundy precisely what he asked for—a
declaratory judgment stating that Friendship submitted a false affidavit with the
Georgia Department of Transportation—that relief, alone, could not actually
redress his alleged harm (deprivation of property) or completely resolve this case.
Instead, it would only resolve a collateral issue; he would still have to return to
state court, where he might (or might not) be able to use the declaratory judgment
in support of a new suit seeking monetary damages. Cf. Calderon v. Ashmus, 523
U.S. 740, 746–47 (1998) (holding that a litigant’s request under the Declaratory
Judgment Act for what is in effect “an advance ruling” on a collateral issue—rather
than a “conclusive determination” of the underlying controversy—does not
constitute an Article III “case or controversy”). Therefore, Sundry’s alleged injury
was not likely to be redressed by a favorable court disposition, and the district
court did not err in dismissing the claims against the Friendship defendants as
nonjusticiable.
9
Case: 19-11391 Date Filed: 03/13/2020 Page: 10 of 12
B
“[W]e have a strong preference for deciding cases on the merits—not based
on a single missed deadline—whenever reasonably possible.” Perez v. Wells
Fargo N.A., 774 F.3d 1329, 1332 (11th Cir. 2014). We have explained that
Federal Rule of Civil Procedure 55(a) “mandates the entry of default so that the
adversary process [will not be] halted because of an essentially unresponsive
party.” Id. at 1337 (alteration in original) (quotation omitted). “[A] motion for
relief under Rule 55(c) . . . is appropriate . . . even when there has not been a
formal entry of default . . . .” Id. (alteration adopted) (quotation omitted). “The
court may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c);
Perez, 774 F.3d at 1337–38. “Good cause” is a flexible, “mutable standard.”
Compania Interamericana Export-Import, S.A. v. Compania Dominicana de
Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (quotation omitted). To determine
what constitutes good cause, courts have considered, but are not limited to, factors
such as the willfulness of the default, “whether setting it aside would prejudice the
adversary, and whether the defaulting party presents a meritorious defense.” Id.
(addressing the denial of a Rule 55(c) motion). “Whatever factors are employed,
the imperative is that they be regarded simply as a means of identifying
10
Case: 19-11391 Date Filed: 03/13/2020 Page: 11 of 12
circumstances which warrant the finding of ‘good cause’ to set aside a default.”
Id. (quotation omitted).
Here, Friendship had a meritorious defense—i.e., that the case was
nonjusticiable. Given that fact, and the other attendant circumstances, the district
court did not abuse its discretion by setting aside the entry of default.
III
Finally, Sundy contends that the removal of documents from the district
court’s docket, a delay in fixing clerical mistakes, and a “secret” ex parte hearing
by the court to find the missing documents violated his constitutional rights.6
“A district court must be able to exercise its managerial power to maintain
control over its docket.” Young v. City of Palm Bay, 358 F.3d 859, 864 (11th Cir.
2004). “This power is necessary for the court to administer effective justice and
prevent congestion.” Id. The former Fifth Circuit explained that “court resources
and capacities are finite,” and so, “within proper limits, judges must be permitted
to bring management power to bear upon massive and complex litigation to
prevent it from monopolizing the services of the court to the exclusion of other
6
“We review a district court’s decision made in the course of managing its docket for an abuse
of discretion.” Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1320 (11th Cir. 2013). “The
district court has a range of options; and so long as the district court does not commit a clear
error in judgment, we will affirm the district court’s decision.” Young v. City of Palm Bay, 358
F.3d 859, 863 (11th Cir. 2004).
11
Case: 19-11391 Date Filed: 03/13/2020 Page: 12 of 12
litigants.” In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1012
(5th Cir. 1977).
Here, the district court did not abuse its discretion when it corrected the
docketing errors to which Sundy objected. Likewise, given the complexity of the
litigation, involving numerous parties and filings, the court did not take an
unreasonably long time to rule on the motions to dismiss, which fully disposed of
the case and made discovery unnecessary. Finally, the district court did not hold a
secret, ex parte meeting by speaking with the court clerks about allegedly missing
documents without Sundy present, and Sundy’s decision not to appear at the
motions hearing, despite clearly being aware of it, did not make it an unlawful ex
parte hearing. Accordingly, Sundy failed to show any actual harm or abuse of
discretion by the district court in this respect.
AFFIRMED IN PART AND DISMISSED IN PART.
12