              Case: 12-14498     Date Filed: 07/10/2013   Page: 1 of 9


                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-14498
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 5:09-cv-00514-MMH-TBS



EVERETTE WEAVER,

                                                                   Plaintiff-Appellant,

                                       versus

MATEER AND HARBERT, P.A.,
a Florida Law Firm,
RENEE THOMPSON,
individually and in her professional capacity as an attorney,
LEWIS DINKINS,
individually and in his professional capacity as an attorney,

                                                                Defendants-Appellees.

                           ________________________

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

                                  (July 10, 2013)

Before HULL, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Everette Weaver, proceeding pro se, appeals following the district court’s

grant of the appellees’ motions for summary judgment as to all claims in his civil

diversity action. Weaver, a New York resident, filed the instant pro se action in

November 2009 against a Florida law firm, three attorneys, a state court judge, and

a court reporting service. The defendants were all connected to a state lawsuit he

previously initiated. He alleged, in essence, that these defendants colluded

together to violate his contractual or state law rights, or applicable rules of ethics.

All defendants but the appellees—Mateer and Harbert, P.A. (“Mateer Harbert”),

Renee Thompson, and Lewis Dinkins—were voluntarily dismissed before the

district court. Liberally construing his brief on appeal, Weaver challenges certain

non-final orders issued by the magistrate judge or district court relating, in part, to

amendment of the complaint, discovery, appointment of counsel, and assessment

of sanctions, as well as the final summary judgment order itself. After careful

review, we affirm. 1

                                             I.

       First, Weaver questions the propriety of several non-final orders issued by

the magistrate judge, specifically, those orders denying his motions: (1) for leave

to amend the pleadings; (2) to extend and compel discovery; and (3) for the


1
        Appellees’ motion to impose Rule 38 sanctions is DENIED in light of Weaver’s pro se
status. Appellees’ motion to strike with sanctions is DENIED AS MOOT. Weaver is cautioned,
however, that any continuation of litigation over these matters may well warrant sanctions.
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appointment of counsel. We lack jurisdiction to reach the merits of these

challenges, however, because in each instance Weaver failed to appeal the

contested magistrate orders to the district court.

       According to Federal Rule of Civil Procedure Rule 72(a), “[a] party may

serve and file objections to [a magistrate judge’s] order within 14 days after being

served with a copy,” but “[a] party may not assign as error a defect in the order not

timely objected to.” We have read Rule 72 to mean that, “where a party fails to

timely challenge a magistrate’s nondispositive order before the district court, the

party waived his right to appeal those orders [on appeal].” Smith v. Sch. Bd. of

Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007). Put simply, “appellate courts

are without jurisdiction to hear appeals directly from federal magistrates.” United

States v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980). 2

       Weaver does not suggest, and the district court docket does not show, that he

appealed the contested, non-final magistrate orders to the district court. For that

reason, in accordance with Rule 72(a), we lack jurisdiction to hear Weaver’s

challenges to those orders. 3

                                               II.


2
       In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
3
        Even if we did have jurisdiction to review Weaver’s challenges to the magistrate’s non-
final orders, we conclude that each of those challenges nevertheless fails on the merits.
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      Next, Weaver challenges several non-final orders issued by the district court,

namely those denying his motions: (1) for leave to amend the pleadings by adding

new claims; (2) for Rule 11 sanctions; and (3) to refer appellees’ conduct to the

United States Attorney. Mateer Harbert and Thompson contend that these orders

are nonreviewable because they did not “merge” with the final judgment. See Foy

v. Schantz, Schatzman & Aaronson, P.A., 108 F.3d 1347, 1350 (11th Cir. 1997).

However, because the district court’s non-final orders concerned matters that

could, arguably, have influenced the course of the proceedings below, we conclude

that they are reviewable.

      The contested, non-final district court orders will be addressed in turn, but

each is reviewed for abuse of discretion. See Green Leaf Nursery v. E.I. DuPont

De Nemours and Co., 341 F.3d 1292, 1300 (11th Cir. 2003) (denial of a motion to

amend complaint); Worldwide Primates, Inc. v. McGreal, 26 F.3d 1089, 1091

(11th Cir. 1994) (denial of a motion for Rule 11 sanctions). The district court

construed Weaver’s motion for referral to the United States Attorney as a petition

for a writ of mandamus. Denial of a petition for a writ of mandamus is likewise

reviewed for abuse of discretion. See Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal.,

426 U.S. 394, 403, 96 S. Ct. 2119, 2124 (1976). A court abuses its discretion if it

makes a clear error of judgment or applies an incorrect legal standard. Bradley v.

King, 556 F.3d 1225, 1229 (11th Cir. 2009).


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      Weaver first questions the district court’s denial of leave to amend his

pleadings, either through his motion to add claims in his Third Amended

Complaint or his motion for “Clarification of Order.” A party seeking to amend its

complaint after having previously done so, or after a responsive pleading has been

filed, may amend the complaint “by leave of court or by written consent of the

adverse party; and leave shall be freely given when justice so requires.” Fed. R.

Civ. P. 15(a). However, where a party’s motion to amend is filed after the deadline

for such motions, as set out in the court’s scheduling order, the party must show

good cause why leave to amend the complaint should be granted. See Fed. R. Civ.

P. 16(b).

      The district court did not abuse its discretion in denying Weaver’s requests

to amend his pleadings. Because Weaver was not diligent in pursuing the addition

of new claims and because he failed to otherwise show good cause, the district

court did not abuse its discretion in denying his motion to add claims in his Third

Amended Complaint. See id. Weaver’s motion for “Clarification of Order”

merely sought clarification and modification of the district court order just

referenced, so it too was properly rejected for the same reasons.

      Next, Weaver challenges the district court’s denial of his motion for Rule 11

sanctions. Rule 11 provides for sanctions if a party presents a pleading, written

motion, or other paper for an improper purpose, or if the filing contains:


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(1) claims, defenses, or other legal contentions which are frivolous or not

warranted by existing law; (2) factual contentions without, or unlikely to have,

factual support; or (3) denials of factual contentions neither warranted by the

evidence nor reasonably based on belief. Fed. R. Civ. P. 11(b)-(c). By its own

terms, however, Rule 11 “does not apply to disclosures and discovery requests,

responses, objections, and motions.” Fed. R. Civ. P. 11(d). Rather, sanctions for

discovery abuses are separately provided for under Rule 37. Fed. R. Civ. P. 37.

      The district court did not abuse its discretion in denying Weaver’s motion

for Rule 11 sanctions. Rule 11 exclusively provides for sanctions related to filing

abuses, yet Weaver’s request for sanctions is premised largely upon either alleged

discovery abuses, sanctionable under Rule 37, or alleged misconduct that bleeds

into and overlaps with the merits of the instant action, that is, Mateer Harbert and

Thompson’s representation. These matters are simply not sanctionable under Rule

11. See Fed. R. Civ. P. 11. Weaver does allege that Mateer Harbert and

Thompson made false statements to the court in connection with certain discovery

matters, but he has offered no proof of his averment. Accordingly, no Rule 11

sanctions were appropriate.

      Lastly, Weaver questions the district court’s denial of his motion to refer the

appellees’ conduct to the United States Attorney. As previously noted, the court

construed this motion “in the nature of mandamus.” A writ of mandamus is only


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appropriate when: (1) the plaintiff has a clear right to the relief requested; (2) the

defendant has a clear duty to act; and (3) no other adequate remedy is available.

Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003). We have clearly held that

“a private citizen has no judicially cognizable interest in the prosecution or non-

prosecution of another.” Otero v. U.S. Att’y Gen., 832 F.2d 141, 141 (11th Cir.

1987).

      The district court did not abuse its discretion in denying Weaver’s “Motion

for Referral to the United States Attorney” because we have explicitly rejected a

private citizen’s interest in the prosecution of others. See id.

      In sum, Weaver has not shown any abuse of discretion in the district court’s

non-final orders, and we therefore affirm those orders.

                                          III.

      Finally, Weaver contends that the district court erred in granting the

appellees’ motions for summary judgment on all of his claims. We review a trial

court’s grant of a motion for summary judgment de novo, viewing the record and

drawing all reasonable inferences in the light most favorable to the non-moving

party. Sims v. MVM, Inc., 704 F.3d 1327, 1330 (11th Cir. 2013). Summary

judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show




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that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. See Fed. R. Civ. P. 56.

      Here, the district court correctly granted summary judgment as to all of

Weaver’s claims. First, as to Mateer Harbert and Thompson, each of the breach of

contract, professional negligence, and breach of fiduciary duty claims asserted

against them were premised on the same factual allegations, and each required

Weaver to present evidence that they violated legal duties owed to him. He failed

to do so. The parties entered into an express contract, but review of their

engagement agreement shows that many of Weaver’s allegations regarding

incompetent legal services fell outside of its scope. Moreover, Weaver presented

no evidence that those legal services falling within the scope of the agreement were

incompetently rendered. Lastly, because there was no dispute that the parties

entered into an express written contract, Weaver’s claim against Mateer Harbert

for unjust enrichment was unavailing as a matter of law. See Moynet v. Courtois, 8

So. 3d 377, 379 (Fla. Dist. Ct. App. 2009) (“[W]here there is an express contract

between the parties, claims arising out of that contractual relationship will not

support a claim for unjust enrichment.”).

      Second, as to Dinkins, because he did not owe a legal duty to Weaver as

opposing counsel, Weaver’s claim for professional negligence was meritless. See

Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So. 2d 1378, 1379


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(Fla. 1993) (“An attorney’s liability for negligence in the performance of his or her

professional duties is limited to clients with whom the attorney shares privity of

contract.”). Next, Weaver’s claim for abuse of process likewise failed because

Dinkins’s conduct occurred in relation to the state proceeding, and Florida’s

litigation privilege shielded him from liability. See Levin, Middlebrooks, Mabie,

Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla.

1994).

                                         IV.

      For these reasons, we affirm the district court’s grant of the appellees’

motions for summary judgment.

      AFFIRMED.




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