           Case: 14-12811   Date Filed: 01/08/2015   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12811
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 0:14-cv-60889-JAL



YOUNES KABBAJ,

                                                           Plaintiff-Appellant,

                                  versus

JOHN DOES 1-10,
BRIAN ALBRO,
MARK S. SIMPSON,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (January 8, 2015)

Before MARCUS, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Younes Kabbaj, proceeding pro se, appeals the district court’s sua sponte

dismissal of his complaint below (the Complaint). The Complaint alleged ten

state-law claims against Defendants-Appellees Mark S. Simpson, Brian K. Albro,

and John Does 1 through 10 (Appellees). The district court dismissed the

Complaint on the grounds that an April 2012 consent order entered by the United

States District Court for the District of Delaware 1 (the April 2012 Order) required

Kabbaj to obtain that court’s permission prior to filing a civil action against certain

named defendants. On appeal, Kabbaj disagrees with the district court’s

interpretation of the April 2012 Order and asks this Court to vacate the dismissal.

      Upon a thorough review of the record and after consideration of the parties’

briefs, we affirm.

                                                 I.

      Kabbaj, Simpson, and Albro were colleagues at the American School of

Tangier (AST), a school located in Morocco and incorporated in Delaware.

Following a somewhat personal dispute among the three colleagues, which

included litigation in the District of Delaware, Kabbaj, Simpson, and Albro entered

into a settlement agreement. In accordance with the settlement agreement, the

District of Delaware entered the April 2012 Order.




      1
          Referred to by the parties and herein as “the District of Delaware.”
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      Pursuant to the April 2012 Order, Kabbaj was prohibited from bringing suit

in any court in the United States against—among other named defendants—

Simpson, his agents, or his family members regarding any matter not released by

the settlement agreement (including claims for breach thereof) “without the prior

written permission of a judge of [the District of Delaware].” Shortly thereafter, in

May 2012, Kabbaj filed suit against Simpson in the United States District Court for

the Southern District of New York for breach of the settlement agreement. The

case was transferred to the District of Delaware, at which point Kabbaj requested

permission from the District of Delaware to sue Simpson.

      The District of Delaware gave Kabbaj permission to sue Simpson in an order

entered in November 2012 (the November 2012 Order). The November 2012

Order noted that Kabbaj had not requested permission to sue any party other than

Simpson and that the other defendants to the prior litigation did not object to

Kabbaj’s request. The November 2012 Order also required Kabbaj to determine

the proper jurisdictional forum for his suit. To wit, if Kabbaj decided that the

District of Delaware had personal jurisdiction over Simpson, he was to bring his

action against Simpson there; if, however, Kabbaj reasoned that another federal

court was the proper forum, he was instructed to file a motion for leave to transfer

on or before November 27, 2012.




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       Kabbaj chose to bring his action in the District of Delaware, and it was

subsequently dismissed for lack of personal jurisdiction.

       Thereafter, in April 2014, Kabbaj initiated the instant proceedings against

Simpson, Albro, and John Does 1 through 10 in the United States District Court for

the Southern District of Florida. 2 The district court issued a paperless order, of its

own accord, dismissing Kabbaj’s case without prejudice. It dismissed Kabbaj’s

claims against Simpson and Albro because Kabbaj failed to obtain permission from

the District of Delaware as required by the April 2012 Order. It also dismissed

Kabbaj’s claims against the John Does, finding them inextricably intertwined with

and/or agents of Simpson and so subject to the April 2012 Order. 3

       This appeal followed.

                                                II.

       While the district court did not specify the authority upon which it relied to

sua sponte dismiss Kabbaj’s action, it may have found the necessary authority in

Federal Rule of Civil Procedure 41(b) or in its inherent power to manage its own
       2
          The two federal lawsuits discussed herein are by no means an exhaustive list of the suits
initiated by Kabbaj against Simpson, Albro, and other defendants not relevant to the instant
proceedings. Rather, in the interest of brevity, we have focused on the two suits most relevant to
our disposition of this matter.
       3
          On June 23, 2014, the district court dismissed John Does 1 and 2 because they were
inextricably intertwined with Simpson for purposes of the April 2012 Order and John Does 3
through 10 because Kabbaj failed to provide any identifiable information as to those parties. In
an amended order, entered on June 27, 2014, the district court, in addition to the grounds in its
initial order, dismissed Kabbaj’s claims as to John Does 1 through 10 for failure to obtain
permission pursuant to the April 2012 Order on the grounds that all John Does were agents of
Simpson.
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docket. See Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir.

2005). Rule 41(b) gives the district court authority to dismiss an action before it,

“[i]f the plaintiff fails . . . to comply with . . . a court order.” Fed. R. Civ. Proc.

41(b); see Betty K Agencies, Ltd., 432 F.3d at 1337 (suggesting a district court may

dismiss an action under Rule 41(b) on its own motion). A district court’s dismissal

for failure to comply with a court order is reviewed for abuse of discretion. See

Gratton v. Great Am. Commc’ns, 178 F.3d 1373, 1374 (11th Cir. 1999) (per

curiam). Thus, absent a clear error of judgment or misapplication of the law, we

will leave a district court’s ruling undisturbed. See Guideone Elite Ins. Co. v. Old

Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1325 (11th Cir. 2005).

       On appeal, Kabbaj puts forth a variety of claims, including that (1) the

November 2012 Order superseded the April 2012 Order and gave him permission

to sue Simpson wherever personal jurisdiction could be established; (2) the district

court should not have dismissed Albro or the John Does because they were not

named in the settlement agreement, and he did not need permission to sue them;

(3) Albro was not protected by the settlement agreement because he was not

Simpson’s family member; and (4) the district court wrongly ruled that Albro and

the John Does were Simpson’s agents. The Appellees argue, simply, that the April

2012 Order requires Kabbaj to obtain permission prior to filing any suit against

Simpson, his agents, or his family members. Because Kabbaj did not obtain


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permission to bring the instant litigation, the district court’s dismissal below was

proper. We agree with the Appellees.

      The district court appropriately adhered to the requirements set forth in the

April 2012 Order in dismissing the proceedings below when Kabbaj could not

show that he had sought and obtained permission from a judge of the District of

Delaware prior to filing suit. Simpson, his agents, and his family members are

expressly covered by the April 2012 Order, which clearly and explicitly requires

that Kabbaj obtain permission from the District of Delaware to bring suit against

those individuals. Far from supplanting the April 2012 Order, the November 2012

Order was simply an instance in which Kabbaj did obtain permission to file a

lawsuit. It was not, however, a grant of perpetual permission; rather, the

permission provided by the November 2012 Order was limited to the lawsuit for

which permission was sought. It did not state nor did it imply that it was entered in

place of the prior April 2012 Order.

      Moreover, the district court did not reach its determination in a vacuum.

The district court’s determination as to the breadth of the April 2012 Order was

informed by orders entered by the District of Delaware on similar issues. See Fed.

R. Evid. 201(b)(2). For example, the district court referred to an April 7, 2014

order in which the District of Delaware found that the April 2012 Order applied to

Albro, who Kabbaj had referred to as the “possible husband” of Simpson. See


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Kabbaj v. Google, Inc., Civ. No. 13-1522-RGA, 2014 WL 1369864, at *6 & n.4

(D. Del. Apr. 7, 2014). Thus, the district court determined that Kabbaj must first

obtain permission from the District of Delaware in order to sue Albro.

      Finally, the district court did not abuse its discretion in dismissing John

Does 1 through 10. For one thing, “fictitious-party pleading” is generally not

permitted in federal court. See Richardson v. Johnson, 598 F.3d 734, 738 (11th

Cir. 2010) (per curiam). There exists a narrow exception “when the plaintiff’s

description of the defendant is so specific as to be at the very worst, surplusage.”

Id. (internal quotation marks omitted). Kabbaj provided no identifiable

information as to John Does 3 through 10, and the district court properly dismissed

Kabbaj’s claims against those defendants. See id. (affirming dismissal of claim

where plaintiff’s complaint was insufficient to identify Doe defendants).

      As to John Does 1 and 2, Kabbaj distinguished John Does 1 and 2 by their

internet protocol (IP) addresses. However, Kabbaj also alleged that Simpson “was

the primary orchestrator of the activities of . . . the John Does, and that [Simpson]

was directing, inciting [and] provoking them to . . . tortuously [sic] interfere with

the 2012 Settlement Agreement.” According to Kabbaj’s own assertions, all of the

John Does acted on behalf of Simpson in interfering with the settlement agreement.




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In other words, John Does 1 through 10 were agents to Simpson’s principal. 4

Pursuant to the April 2012 Order, Kabbaj was required to obtain permission from

the District of Delaware prior to filing suit against John Does 1 through 10, and the

district court did not abuse its discretion in finding that Kabbaj’s failure to obtain

such permission warranted dismissal of the claims against John Does 1 through 10.

       In sum, the district court did not abuse its discretion when it dismissed

Kabbaj’s complaint on the grounds that he failed to seek and obtain permission

from the District of Delaware to sue Appellees in the proceedings below.

       AFFIRMED.




       4
           The Complaint sets forth a potpourri of state law claims, including, but not limited to,
declaratory and injunctive relief; breach of contract; defamation; and negligence. “[A] federal
court adjudicating state law claims applies the substantive law of the state.” Ungaro-Benages v.
Dresdner Bank AG, 379 F.3d 1227, 1232 (11th Cir. 2004). Under Florida law, “[a] key element
in establishing an agency relationship is that of control.” Chase Manhattan Mortg. Corp. v.
Scott, Royce, Harris, Bryan, Barra & Jorgensen, P.A., 694 So. 2d 827, 832 (Fla. Dist. Ct. App.
1997); see also Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003)
(“[I]t is the right to control, rather than actual control, that may be determinative.”). Kabbaj’s
Complaint alleged the very control necessary to establish an agency relationship here. Thus, we
see no error in the district court’s finding that John Does 1 through 10 were agents of Simpson
for purposes of applying the April 2012 Order.
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