Case: 19-2412   Document: 46     Page: 1   Filed: 04/08/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                   YOLDAS ASKAN,
                   Plaintiff-Appellant

                            v.

            FARO TECHNOLOGIES, INC.,
                 Defendant-Appellee

                   JOHN DOES 1-10,
                       Defendant
                 ______________________

                       2019-2412
                 ______________________

    Appeal from the United States District Court for the
 Middle District of Florida in No. 6:18-cv-01122-PGB-DCI,
 Judge Paul G. Byron.
                  ______________________

                  Decided: April 8, 2020
                 ______________________

    YOLDAS ASKAN, Birmingham, United Kingdom, pro se.

     BEVERLY A. POHL, Nelson Mullins Riley & Scarborough
 LLP, Fort Lauderdale, FL, for defendant-appellee. Also
 represented by NICOLETTE VILMOS, Orlando, FL; LLOYD
 GARRETT FARR, Atlanta, GA.
                 ______________________
Case: 19-2412    Document: 46       Page: 2   Filed: 04/08/2020




 2                          ASKAN   v. FARO TECHNOLOGIES, INC.




     Before DYK, SCHALL, and O’MALLEY, Circuit Judges.
 PER CURIAM.
                          DECISION
     Yoldas Askan appeals the dismissal of his complaint
 for patent infringement against FARO Technologies, Inc.
 (“FARO”). He also appeals related orders denying his mo-
 tions for reconsideration and clarification. The United
 States District Court for the Middle District of Florida, Or-
 lando Division, dismissed Mr. Askan’s complaint as a sanc-
 tion under Federal Rule of Civil Procedure 37 for his
 refusal to comply with discovery procedures. Askan v.
 FARO Techs., Inc., No. 6:18-cv-1122-Orl-40DCI, 2019 WL
 2206918 (M.D. Fla. Mar. 11, 2019), App. 1–3 (the “March
 11th Order”). The court issued a subsequent order denying
 Mr. Askan’s motion for reconsideration. Order, Askan v.
 FARO Techs., Inc., No. 6:18-cv-1122-Orl-40DCI, (M.D. Fla.
 April 11, 2019), ECF No. 117, App. 13. The court also is-
 sued a text order (i.e., a text-only entry on the court’s
 docket that does not include a written analysis) denying
 Mr. Askan’s motion for clarification. App. 25–26. We af-
 firm the court’s decisions.
                         DISCUSSION
                              I.
     Mr. Askan, through counsel, filed suit for patent in-
 fringement against FARO in the Middle District of Florida,
 Tampa Division. 1 The case was transferred to the Orlando


     1    Mr. Askan’s original complaint included two counts
 of infringement by “John Does 1–10.” Complaint, No. 6:18-
 cv-1122-Orl-40DCI, (M.D. Fla. June 21, 2018), ECF No. 1
 at 13–15. The original complaint identifies John Does 1–
 10 as “unidentified affiliates or customers of FARO . . . who
 use one or more of FARO’s infringing products.” Id. at 2.
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 ASKAN   v. FARO TECHNOLOGIES, INC.                           3



 Division after Mr. Askan did not respond to an order to
 show cause not to do so. App. 38–39. Mr. Askan’s amended
 complaint alleged infringement of two U.S. patents that
 name him as the inventor. Id. at 63, 66–71. 2
     In the Orlando Division, Mr. Askan failed to timely file
 a case management report despite FARO’s counsel repeat-
 edly contacting Mr. Askan’s counsel, Mr. Wayne Harper.
 Id. at 5. The court set a hearing to be held on October 10,
 2018, to address case management issues. Id. at 50. Mr.
 Askan and Mr. Harper failed to appear for the hearing,
 however, and the court assessed FARO’s costs as a



 Mr. Askan’s amended complaint, entered November 14,
 2018, does not list “John Does 1–10” as defendants in the
 case caption and asserts infringement only by FARO. See
 generally App. 62–73. In a March 6, 2019 text order, the
 district court required Mr. Askan to show cause within
 fourteen days why the complaint against John Does 1–10
 should not be dismissed for failure to comply with Federal
 Rule of Civil Procedure 4(m), which requires service upon
 a defendant within ninety days of the filing of a complaint.
 Id. at 24. Prior to the end of the fourteen-day period, the
 court issued the March 11th Order and directed that the
 case be closed. Id. at 1–3. This action necessarily rendered
 the court’s order to show cause regarding John Does 1–10
 moot.
     2    Mr. Askan’s original complaint included counts for
 infringement of three patents: U.S. Patent No. 8,705,110
 (“the ’110 patent”), U.S. Patent No. 9,300,841, and an “Is-
 suing Patent” identified as corresponding to Application
 No. 15/043,492. Complaint, No. 6:18-cv-1122-Orl-40DCI,
 ECF No. 1 at 4, 13–15. Mr. Askan’s amended complaint
 does not include a count for infringement of the ’110 patent
 and was updated to provide the patent number for the “Is-
 suing Patent”: U.S. Patent No. 10,032,255 (issued July 24,
 2018). App. 63, 66–71.
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 4                         ASKAN   v. FARO TECHNOLOGIES, INC.



 sanction. Id. at 50–51, 274. 3 On October 26, 2018, Mr.
 Harper withdrew as counsel for Mr. Askan. Id. at 58–61.
     On November 7, 2018, new counsel, Mr. Alexander Co-
 hen and Mr. Joel Rothman, entered an appearance for Mr.
 Askan. Id. at 20. Approximately a month later, on Decem-
 ber 5, 2018, the district court granted a motion by Mr. Co-
 hen and Mr. Rothman to withdraw, citing “irreconcilable
 differences.” Id. at 5. The court advised Mr. Askan that as
 a pro se litigant he was still obligated to comply with the
 deadlines in the case and the laws, rules, and orders of the
 Court, including the Federal Rules of Civil Procedure. Id.
 at 126. Failure to do so, advised the court, “may result in
 sanctions including but not limited to a dismissal of this
 case for a failure to prosecute.” Id. at 127.
      While proceeding pro se, Mr. Askan repeatedly en-
 gaged in inappropriate and unprofessional behavior. See,
 e.g., FARO’s Req. for Status Conference, Askan v. FARO
 Techs., Inc., No. 6:18-cv-1122-Orl-40DCI, (M.D. Fla. Dec.
 21, 2018), ECF No. 75, App. 161–65 (quoting Mr. Askan’s
 e-mails to FARO’s counsel).
     The court held a hearing on January 23, 2019 to ad-
 dress, inter alia, a motion by FARO to compel discovery.



     3    The day before the October 10, 2018 hearing, the
 court denied a motion filed by Mr. Askan’s counsel to ap-
 pear telephonically. App. 19. The motion was denied for
 failure to follow a local rule that requires that a moving
 party “confer with counsel for the opposing party in a good
 faith effort to resolve the issues raised by the motion” and
 provide a corresponding certification. M.D. Fla. R. 3.01(g);
 App. 19. In its text order denying the motion, the court
 directed Mr. Askan that, should he wish to re-file the mo-
 tion, he should provide the court with three potential dates
 for rescheduling the hearing. Id. Mr. Askan never filed a
 renewed motion to reschedule. Id. at 50.
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 ASKAN   v. FARO TECHNOLOGIES, INC.                           5



 App. 282–301. The court ordered Mr. Askan, again repre-
 sented by his original counsel Mr. Harper, to fully respond
 by January 30, 2019 to a request for production served on
 Mr. Askan by FARO. In addition, the court awarded FARO
 its fees incurred in making the motion to compel. Id. at
 214–16; 293–95. 4
    Mr. Askan failed to respond to FARO’s request for pro-
 duction by the court-ordered deadline. In due course,
 FARO moved for sanctions under Federal Rule of Civil Pro-
 cedure 37, seeking dismissal of the case. Id. at 217–21.
     Magistrate Judge Daniel C. Irick considered FARO’s
 motion for Rule 37 sanctions and issued a Report and Rec-
 ommendation that the case be dismissed and that FARO
 be awarded its attorneys’ fees and expenses. Askan v.
 FARO Techs., Inc., No. 6:18-cv-1122-Orl-40DCI, 2019 WL
 2210690 (M.D. Fla. Feb. 22, 2019), App. 4–11. The Report
 and Recommendation outlined Mr. Askan’s behavior, and
 noted that the case was “plagued with issues arising from
 Plaintiff’s failure to adequately prosecute this case.” App.
 4–5. Indeed, the Report and Recommendation indicated,
 Mr. Askan had failed to oppose FARO’s motion for sanc-
 tions. Id. at 9. Mr. Askan did not object to the Report and
 Recommendation. FARO objected only to the extent the
 Report and Recommendation did not specifically state that
 the case should be dismissed “with prejudice.” Id. at 222–
 25.
    In the March 11th Order, the district court adopted the
 Magistrate Judge’s Report and Recommendation. Alt-
 hough noting that “[d]ismissal of a complaint with



    4    The district court later quantified the sanctions
 owed to FARO, assessing $4,402.60 against Mr. Harper
 and $4,890.00 against Mr. Askan. App. 26. FARO states
 that these sanctions have not been paid. Appellee’s Br. 12
 n.3.
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 6                         ASKAN   v. FARO TECHNOLOGIES, INC.



 prejudice is such a drastic remedy that a district court
 should . . . apply it only in extreme circumstances,” the
 court indicated that this sanction “may be appropriate
 where a plaintiff’s failure to comply involves ‘either re-
 peated refusals or an indication of full understanding of
 discovery obligations coupled with a bad faith refusal to
 comply.’” March 11th Order, 2019 WL 2206918 at *1 (quot-
 ing Griffin v. Aluminum Co. of Am., 564 F.2d 1171, 1172
 (5th Cir. 1977)). The court concluded that dismissal with
 prejudice was appropriate, reasoning:
     As noted in the Report, Plaintiff has “willfully, in
     bad faith, and in disregard of his responsibilities
     failed to comply with the Court’s Order.” Further-
     more, since the case was filed eight months ago,
     “Plaintiff has been sanctioned twice and has failed
     to: respond to an order to show cause; timely file a
     case management report; appear for a hearing;
     comply with the Court’s Order compelling discov-
     ery; and, most recently, respond to three separate
     motions by Defendant.”
 Id. (quoting Report and Recommendation, 2019 WL
 2210690 at *3) (citations omitted). The court continued:
     These repeated violations establish a “clear record
     of delay or willful contempt,” far beyond mere neg-
     ligence or confusion. Given these “extreme circum-
     stances,” the Court finds that dismissal with
     prejudice is warranted.
 Id. (first quoting Goforth v. Owens, 766 F.2d 1533, 1535
 (11th Cir. 2010) (addressing “failure to prosecute” under
 Fed. R. Civ. P. 41(b)), then quoting Griffin, 564 F.2d at
 1172 (dismissal under Fed. R. Civ. P. 37)).
      The court issued a subsequent order denying a motion
 for reconsideration filed by Mr. Askan. App. 13. Mr. Askan
 filed a subsequent “Motion for Clarification,” which the
 court also denied. App. 25–26.
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 ASKAN   v. FARO TECHNOLOGIES, INC.                           7



                               II.
      We apply regional circuit law when we review a district
 court’s decision to sanction a litigant pursuant to Federal
 Rule of Civil Procedure 37. ClearValue, Inc. v. Pearl River
 Polymers, Inc., 560 F.3d 1291, 1304 (Fed. Cir. 2009). The
 Eleventh Circuit’s review of a district court’s decision to im-
 pose sanctions under Rule 37 is “sharply limited to a search
 for an abuse of discretion and a determination that the
 findings of the trial court are fully supported by the record.”
 OFS Fitel, LLC. v. Epstein, Becker and Green, P.C., 549
 F.3d 1344, 1360 (11th Cir. 2008) (citations omitted). In ad-
 dition, the Eleventh Circuit “will generally not review a
 magistrate judge’s findings or recommendations if a party
 failed to object to those recommendations below.” Evans v.
 Georgia Reg’l Hosp., 850 F.3d 1248, 1257 (11th Cir. 2017)
 (citing 11th Cir. R. 3-1). “Consequently, [the Eleventh Cir-
 cuit] will only review a waived objection, for plain error, if
 necessary in the interests of justice. Id. (citing 11th Cir. R.
 3-1) Review for plain error in civil appeals in the Eleventh
 Circuit is rare and requires a greater showing of error than
 in criminal appeals. Id. (first citing Ledford v. Peeples, 657
 F.3d 1222, 1258 (11th Cir. 2011), then citing United States
 v. Levy, 391 F.3d 1327, 1343 n.12 (11th Cir. 2004)).
     Under plain error review, the Eleventh Circuit “cor-
 rect[s] an error only when (1) an error has occurred, (2) the
 error was plain, (3) the error affected substantial rights,
 and (4) the error seriously affects the fairness, integrity or
 public reputation of judicial proceedings.” Dupree v. War-
 den, 715 F.3d 1295, 1301 (11th Cir. 2013) (citations omit-
 ted)).
     The Eleventh Circuit reviews the denial of a motion for
 reconsideration for abuse of discretion. Auto. Alignment &
 Body Serv., Inc. v. State Farm Auto. Ins. Co., 2020 WL
 1074420 at *3 (11th Cir. Mar. 6, 2020). “An abuse of dis-
 cretion can occur where the district court applies the wrong
 law, follows the wrong procedure, bases its decision on
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 8                          ASKAN   v. FARO TECHNOLOGIES, INC.



 clearly erroneous facts, or commits a clear error in judg-
 ment.” United States v. Brown, 415 F.3d 1257, 1266 (11th
 Cir. 2005).
     Mr. Askan contends that the district court’s dismissal
 with prejudice is “excessively unfair” since “the case was
 not decided on its merits.” Appellant’s Br. 67. Mr. Askan
 argues that the district court failed to “take into account
 FARO’s unlawful and inequitable conduct” and “ongoing”
 patent infringement. Id. at 68–69. In fact, the vast major-
 ity of the arguments Mr. Askan makes in his brief are di-
 rected to the merits of the underlying patent dispute, which
 is not relevant to whether the district court erred in grant-
 ing FARO’s motion under Rule 37. See Malautea v. Suzuki
 Motor Co., 987 F.2d 1536, 1544 (11th Cir. 1993) (“Finally,
 the probable merit of a litigant’s case does not preclude the
 imposition of a default judgment sanction against that liti-
 gant. ‘Discovery orders must be obeyed even by those fore-
 seeing ultimate success in the district court.’” (quoting
 United States v. $239,500 in U.S. Currency, 764 F.2d 771,
 773 (11th Cir.1985))).
     We have reviewed the parties’ briefs and the record.
 We see no “plain error” in the district court’s decision to
 adopt the Report and Recommendation. Further, even if
 the “plain error” standard were not to apply, Mr. Askan has
 not established that the district court applied the wrong
 law, followed the wrong procedure, based its decision on
 clearly erroneous facts, or committed a clear error in judg-
 ment in either its decision to adopt the Report and Recom-
 mendation or in its subsequent decisions on Mr. Askan’s
 motions for reconsideration and clarification.
                        CONCLUSION
     For the foregoing reasons, we affirm the decisions of
 the district court.
                        AFFIRMED
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 ASKAN   v. FARO TECHNOLOGIES, INC.                           9



                            COSTS
    Costs to FARO.
