     Case: 10-20080     Document: 00511717420         Page: 1     Date Filed: 01/06/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          January 6, 2012

                                       No. 10-20080                        Lyle W. Cayce
                                                                                Clerk

BLANCO RIVER, L.L.C.,

                                                  Plaintiff–Appellee,
v.

CHRISTOPHER GREEN,

                                                  Defendant–Appellant,

DAYLEN GALLMAN,

                                                  Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-2822


Before KING, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
        Blanco River L.L.C. (Blanco River), obtained a summary judgment against
Christopher Green that awarded damages of approximately $400,000 and
attorney’s fees. In post-judgment proceedings, the district court issued three
written rulings that Green challenges on appeal and two of which his counsel,


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-20080

Daylen Gallman, also challenges. The district court entered “Supplemental
Findings and Declaration,” issued an order imposing sanctions against Green
and Gallman, jointly and severally, and entered an injunction against Green and
Gallman enjoining them from interfering with the collection of the judgment
against Green. We affirm in part but vacate the injunction and remand for
further proceedings consistent with this opinion.
                                       I
      Blanco River, L.L.C., a real estate investment vehicle, is a limited liability
Arizona corporation that sought to purchase and develop land bordering the
Blanco River in Texas. Green was the manager of this venture, which failed.
Blanco River sued Green, alleging breach of fiduciary duty, conversion, and
breach of contract. Green removed the suit to federal district court. Among
other allegations, Blanco River asserted that Green had expended the venture’s
capital funds for his personal pursuits, including expenditures at “high-end strip
clubs,” for limousine services, at designer retail stores, for hotel rooms, and for
multiple hotel rooms on a single day. Improper cash withdrawals were also
alleged. Green denied the allegations and as an affirmative defense, contended
that John Aird, a significant shareholder in Blanco River who animated the suit
against Green, was not authorized to bring suit on behalf of Blanco River.
      Two months after the case was removed to federal district court, counsel
for Green moved for leave to withdraw. These attorneys had their offices in
Illinois, and the district court had denied them permission to continue to appear
telephonically. In the motion to withdraw, counsel also stated that Green “has
been unable to pay the legal fees incurred to date and has not indicated an
ability to do so going forward.”     The district court granted the motion to
withdraw on December 8, 2008, and gave Green until December 29 to obtain new
counsel. Grasso, one of the withdrawing counsel, provided the court with
Green’s contact information, including Green’s email address. Green’s email

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                                  No. 10-20080

address was entered into the court’s electronic filing database and electronic
notification system.
      On December 16, after Green’s counsel withdrew and before new counsel
entered an appearance, Blanco River moved for summary judgment on its breach
of fiduciary duty claim. On December 29 Green faxed and emailed a request for
an extension of time until January 9 to obtain new counsel. He used the email
address provided by former counsel. The court granted the extension. On
January 9, 2009, Green emailed the court that he had retained The Beckham
Group as counsel. The next business day, Monday January 12, the district
court’s case manager emailed Green at 9:10 a.m. that his attorneys had until
3:00 p.m. that day to enter an appearance. Green replied that day, after the 3:00
deadline, saying that he had been traveling and would contact his attorneys in
the morning.
      The next day, January 13, the district court granted summary judgment
in favor of Blanco River and against Green, providing: “On its motion for
summary judgment, Blanco River, LLC, recovers $396,575.00 in damages and
$7,250.00 in attorney’s fees from Christopher Green.”
      Green filed an appeal from this summary judgment, but he subsequently
dismissed that appeal pursuant to FED. R. APP. P. 42(b). Blanco River initiated
post-judgment discovery, to which Green responded through his new attorney
Gallman. Green’s response to each interrogatory was a variant of the assertion
that Aird lacked any authority to take legal action on behalf of Blanco River.
      Green, represented by Gallman, also filed an action in state court in Hays
County, Texas seeking a declaratory judgment that Aird did not have the
authority to seek to collect the judgment against Green on behalf of Blanco
River. Green also alleged in his state court suit that Aird had improperly been
reimbursed $150,000 of his investment in Blanco River, and Green sought a
return of that amount to the limited liability corporation.

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      Blanco River then took further action in federal district court, filing a
motion to compel post-judgment discovery and for sanctions. Blanco River
attached to its motion a November 2009 letter from Gallman to an investor in
Blanco River asking for a capital call, in which Gallman stated that Blanco River
had secured its judgment against Green in federal district court without
allowing Green to respond and that “Aird did not ‘prove' any cause of action
against Mr. Green” in that suit. The letter also attached Green’s responses to
the post-judgment interrogatories, which contained Green’s assertions that Aird
had no authority to act for Blanco River.
      At a hearing on these matters, the district court suggested that Blanco
River file a motion to enjoin Green’s Hays County action as well as a purported
attack on the judgment against Green in an Illinois state court proceeding to
register that judgment. Blanco River then filed such a motion. Two days prior
to the hearing on the injunction and other pending matters, the Hays County
suit was “non-suited with prejudice” by Green through Gallman as his counsel.
      In the post-judgment proceedings, the federal district court ordered
Gallman to appear personally, despite his protestations that he had not formally
appeared in the case. Gallman appeared at the hearings.
      The district court ultimately entered three rulings, from which appeal is
now taken. The court issued “Supplemental Findings and Declaration,” that
included a finding that Green had no “valid authority for Blanco River as
manager or otherwise” after July 2006. The court entered a separate order
sanctioning Green and Gallman $4,000, jointly and severally, to cover Blanco
River’s attorneys’ fees in seeking to enforce the judgment obtained against
Green. The district court’s written order stated that Green and Gallman had
“filed a collateral attack” in state court on the district court’s judgment and that
the state court suit had “no basis in fact or law” and it “had no legitimate
purpose.”   Green and Gallman were also enjoined in another order from

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                                       No. 10-20080

“interfering in the collection of this court’s judgment,” citing the Hays County
suit, the proceedings in Illinois, and Gallman’s failure to investigate Green’s
“fals[e]” accusations that the district court had denied due process in granting
summary judgment against Green that, even if true, would “not support a
collateral attack” on the judgment.
      Green appeals all three rulings of or actions by the district court, and
Gallman appeals the sanctions order and injunction.
                                             II
      Green argues on appeal that the original summary judgment is void,
contending that he was deprived of due process in that proceeding. He contends
that because the summary judgment was void, the district court had no
authority to “modify” the final summary judgment by entering supplemental
findings almost a year after the summary judgment issued. We consider
whether the underlying judgment is void without deference to the lower court’s
determination,1 but for the limited purpose of determining whether the
supplemental findings challenged in the present appeal are referable to a valid
judgment.
      We conclude that there was no deprivation of due process, and the
summary judgment against Green was not void. The Supreme Court recently
readdressed the interplay of due process and notice. It restated that “[d]ue
process requires notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections. Due process does not require actual
notice.”2 Here, Green received an electronic notification from the district court
of the filing of the motion for summary judgment. Green argues that under the

      1
          New York Life Ins. Co. v. Brown, 84 F.3d 137, 142 (5th Cir. 1996).
      2
          United Student Aid Funds, Inc. v. Espinosa, —U.S.—, 130 S. Ct. 1367, 1378 (2010)
(internal quotation marks and citations omitted).

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                                       No. 10-20080

local rules of the district court, pro se litigants are not permitted to use or access
electronic filing. Nevertheless, Green’s withdrawing attorney provided the court
with Green’s contact information, including his email address, and that address
was in the electronic filing system. Notice of electronic filing is automatically
generated.3 Subsequent to the filing of Blanco River’s motion for summary
judgment, but prior to the deadline for filing a response to the motion for
summary judgment, Green used the email address listed in the electronic
notification system to contact the court. Green also used the court’s electronic
filing system to file his notice of appeal. In light of the foregoing, the notification
actions were reasonably calculated to reach Green and provided him with actual
notice of the motion for summary judgment. In fact, Green’s own lawyer,
Gallman, acknowledged that Green should have known of the deadline to file a
response to the motion for summary judgment. Moreover, Green has no safe
harbor as a result of his pro se status: pro se litigants do not receive special
notice treatment with respect to summary judgment motions.4 Even after
counsel for Green was to appear, Green did not seek to have the district court
reconsider the motion for summary judgment or offer any basis on which he
could argue that the summary judgment was without merit.
      Green was not denied due process by the entry of the summary judgment,
and therefore, the underlying order is not a nullity or void.
                                             III
      Green assails the district court’s supplemental findings and declaration
on another ground. He contends that the summary judgment was a final order
and that the district court could not modify that judgment or make additional
findings after it no longer had jurisdiction over that judgment. In examining


      3
          S.D. Tex. LR 5.1.
      4
          Martin v. Harrison Cnty. Jail, 975 F.2d 192, 193 (5th Cir. 1992).

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                                         No. 10-20080

this contention, we first confirm that the summary judgment was indeed a final
judgment, as Green contends.
       Green’s briefing in our court points out that even though the suit involved
more than one claim for relief, the motion for summary judgment was directed
primarily at one cause of action.             The order granting summary judgment
disposed of all claims, as Green accurately asserts, and it was titled “Final
Judgment.” Although it may have been error for the judgment to adjudicate all
causes of action if the motion for summary judgment was addressed to less than
all causes of action, Green states that he treated the judgment as final by
appealing it, Blanco River has treated it as final by seeking to collect the
amounts awarded, and the district court has treated the judgment as final. We
review questions of subject matter jurisdiction de novo.5
       “In determining finality, we have advocated a practical interpretation that
look[s] to the intention of the district court and held that if the judgment reflects
an intent to dispose of all issues before the district court, we will characterize
that judgment as final.”6 We noted as relevant to this practical inquiry “that no
one associated with this case believed there to be a live remaining claim when
judgment was entered.”7 In the instant case, this practical inquiry indicates that
the district court entered a final order with respect to all of the claims brought
by Blanco River when it entered the summary judgment. The order entered by
the district court was stylized “Final Judgment”—a title that while not
dispositive, is nonetheless suggestive. Green filed an appeal of the judgment
without seeking a certificate of appealability under FED. R. CIV. P. 54(b).



       5
           Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 186 (5th Cir. 2008).
       6
        DIRECTV, Inc. v. Budden, 420 F.3d 521, 525 (5th Cir. 2005) (internal quotation marks
and citations omitted).
       7
           Id. (internal quotation marks, brackets, and citations omitted).

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Further, both parties have argued to this court that the “Final Judgment”
entered by the district court was what it purports to be: a final judgment on the
merits in this case. In light of the totality of the factual posture of this case, we
agree.
      It does not follow, however, that because there was a final judgment in the
case, the district court was without jurisdiction to enter the supplemental
findings and declaration. The findings and declaration are referable to the post-
judgment discovery and collection issues that were pending before the district
court. Green responded to post-judgment collection efforts by asserting that
John Aird had no authority to cause Blanco River to collect the judgment
because, among other contentions, Green had never been removed properly as
the manager of Blanco River. The supplemental findings and declaration that
“[b]y July 15, 2006, at the latest, Green had abandoned and forfeited his
authority for Blanco River, L.L.C.” were made in aid of the court’s authority to
enforce its judgment. They were fully consistent with the facts subsumed in
issuing the judgment against Green many months earlier. The basis for Blanco
River’s motion for summary judgment was that Green had breached his
fiduciary duty to Blanco River by spending its funds for his own personal use
and his other defalcations. The supplemental findings and declaration did not
alter or amend that judgment but were in response to assertions Green made in
his efforts to thwart collection of the judgment.
                                                IV
      Jurisdiction to review a final decision on sanctions including specific
damages is granted by 28 U.S.C. § 1291.8 We review a district court’s imposition




      8
          See S. Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 129 (5th Cir. 1993).


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                                        No. 10-20080

of sanctions for abuse of discretion.9 Jurisdiction to sanction does not require
subject matter jurisdiction over the case but rather requires a showing of
authority to sanction.10
      The sanctions order does not state the authority under which it is issued.
The record of the hearing indicates that Rule 11 of the Federal Rules of Civil
Procedure was not the basis, and as noted by Green and Gallman, the procedural
requirements for imposing Rule 11 sanctions were not met. The sanctions order
also discusses the filing of the Hays County suit. We have indicated that one
cannot use FED. R. CIV. P. 11 “to regulate state court activities.”11
      Alternatively, Blanco River contends that by unreasonably and vexatiously
multiplying the proceedings in this case, the filing of the Hays County suit could
be sanctioned pursuant to 28 U.S.C. § 1927. Yet the court sanctioned both Green
and Gallman, and § 1927 only reaches attorneys.12
      It appears that the sanctions against Green and Gallman were imposed
pursuant to the court’s inherent authority. This authority includes that to
punish “defiant, bad-faith conduct” in state court that hinders an order of a
federal court.13 The Supreme Court has held that the inherent power “reaches
both conduct before the court and that beyond the court’s confines” such that
courts may achieve “submission to their lawful mandates.”14




      9
           United States v. City of Jackson, Miss., 359 F.3d 727, 731 (5th Cir. 2004); Am.
Airlines, Inc. v. Allied Pilots Ass’n, 968 F.2d 523, 533 (5th Cir. 1992).
      10
           See Willy v. Coastal Corp., 915 F.2d 965, 967 (5th Cir. 1990).
      11
           Id. at 968 n.8 (emphasis in original).
      12
           Chambers v. NASCO, Inc., 501 U.S. 32, 41 (1991).
      13
           CJC Holdings, Inc. v. Wright & Lato, Inc., 989 F.2d 791, 794 (5th Cir. 1993).
      14
           Chambers, 501 U.S. at 43-44.

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       Sanctions under the court’s inherent authority require a finding of bad
faith.15 Green asserts that there was no finding of bad faith by the district court.
We have said that “[w]hen bad faith is patent from the record and specific
findings are unnecessary to understand the misconduct giving rise to the
sanction, the necessary finding of ‘bad faith’ may be inferred.”16 In reviewing
sanctions, we have inferred that “it would be empty formalism to find an abuse
of discretion for failure to invoke the magic words bad faith.”17 But reversal of
sanctions is warranted where “the district court merely made general complaints
about the sanctioned party.”18
       The record supports the conclusion that the district court found bad faith.
Post-judgment interrogatories asked Green to provide his full name, current
address, current business affiliations, and financial information, among other
requests for information. The answers filed by Gallman on behalf of Green to
each and every post-judgment interrogatory asserted the same objection, which
included an assertion that John Aird had never been authorized to bring any
legal action on behalf of Blanco River and that Aird was not authorized by
Blanco River to collect the judgment that Blanco River had obtained against
Green.19 Gallman had also asserted in correspondence regarding the judgment


       15
            Goldin v. Bartholow, 166 F.3d 710, 722 (5th Cir. 1999).
       16
            In re Sealed Appellant, 194 F.3d 666, 671 (5th Cir. 1999).
       17
            Id. at n.16 (internal quotation marks and citations omitted).
       18
            Goldin, 166 F.3d at 722 (citing Elliott v. Tilton, 64 F.3d 213, 217 (5th Cir. 1995)).
       19
          Green’s response to each of the post-judgment interrogatories was similar or identical
to the following objection:

              GREEN objects to this and all other Interrogatories on the basis that
       John Aird has no authority from Blanco River, LLC to institute any legal action,
       including the enforcement of any judgtnent [sic], on·behalf of Blanco River,
       LLC. Mr. Aird never had the required consent of the Members as stated clearly
       in the Operating Agreement to institute any legal proceeding. Similarly, Mr.

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                                    No. 10-20080

that it was rendered without an opportunity for Green to be heard or to respond.
The district court explored these matters in some detail with Gallman at the
hearing on the request for sanctions. Gallman acknowledged that whether
Blanco River was authorized to bring the suit against Green that resulted in a
judgment against him was subsumed in the underlying suit and the final
judgment in that case. The authority of Blanco River to sue was also a matter
that could and should have been appealed if Green disputed the underlying
authority to bring suit. Gallman acknowledged this as well as the fact that he,
as counsel for Green, filed and later dismissed an appeal from the judgment
against Green.
      Similarly, Gallman acknowledged that Green did have notice of the filing
of the summary judgment and hearing date, but Gallman asserted at the
hearing on the motion for sanctions that he was simply mistaken in overlooking
an indication in the record that actual notice of the filing of the motion for
summary judgment was sent to Green. The district court pointed out, correctly,
that under the local rules of the district courts in the Southern District, when a
summary judgment motion is filed, a response is automatically due in 20 days,
the matter is deemed under submission after the expiration of that period of
time, and the district court may rule at any time thereafter, with or without
notice to the parties. No hearing or hearing date is required. It was immaterial
whether Green received notice of a hearing because no hearing was required and
no hearing was held. The record reflects that he had in fact been given notice
of the filing of the motion for summary judgment, and that sufficed.




      Aird does not currently have the required consent of the Members to take any
      action to enforce any judgment on behalf of Blanco River, LLC. Further,
      GREEN objects that this Interrogatory is overbroad, irrelevant and not likely
      to lead to admissible evidence.

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      The facts in the record support a finding of bad faith in answering the
post-judgment interrogatories and in correspondence regarding efforts to collect
the judgment. The court’s comments at the hearing on the request for sanctions
are tantamount to such a finding.
      Although the district court’s written order imposing sanctions stated, “The
[Hays County] suit had no basis in fact or law. It was simply an attempt to
impede the enforcement of the judgment and had no legitimate purpose,” the
record of the hearing makes clear that the district court was not basing
sanctions on any action that Green or Gallman took in the Hays County suit.
The district court expressly stated that it was not imposing sanctions based on
actions in that state court proceeding. Instead, the district court expressly
indicated at the hearing that it was basing the sanctions on the conduct of Green
and Gallman in connection with efforts to collect the judgment in the district
court. Given the facts, the district court’s finding of bad faith is not an abuse of
discretion.
      Green and Gallman contend that the district court could not award $4,000
in sanctions unless it determined, based on a sworn statement or billing records,
that the total hours claimed were reasonable and reasonably expended.
However, the case that they cite in support of this proposition pertained to an
award of more than $4,000,000 as attorneys’ fees as damages, in addition to
actual damages, in an anti-trust suit.20 Here, the district court used the amount
of fees that Blanco River incurred in pursuing post-judgment remedies in the
district court as a proxy for the amount that should be imposed as sanctions.
The district court inquired at one juncture how much Aird had been charged in
defending the Hays County suit and was told the amount was approximately
$12,000. The district court then stated on the record that it was not going to


      20
           La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 323 (5th Cir. 1995).

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                                         No. 10-20080

sanction actions in the state court suit, but would sanction actions regarding
post-judgment discovery pertaining to the judgment issued by the district court.
Blanco River’s attorneys were asked how much they had expended in pursuing
post-judgment remedies, and the response, from an officer of the court, was
“approximately $3,700, $3,728.” The district court then chose $4,000 as the
amount of the sanction.            There was no objection that sworn testimony or
affidavits were required, or that the district court was without authority to
choose some amount, even if unrelated to actual attorneys’ fees, as the amount
of sanctions. We cannot say on the record before us that the district court
abused its discretion in selecting $4,000 as the amount of sanctions to be
imposed.
                                                V
       The district court entered an injunction pursuant to the relitigation
exception to the Anti-Injunction Act.21 We have jurisdiction to review the entry
of an injunction pursuant to 28 U.S.C. § 1291. We review de novo whether the
Anti-Injunction Act permits the issuance of an injunction, then review the actual
decision to issue an injunction for abuse of discretion.22
       As a preliminary matter, we can dismiss Green and Gallman’s contention
that an injunction is moot owing to their “non-suiting” of the Hays County case.
To be moot, it must be “absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur” and that the “heavy burden” of
persuasion lies on the party arguing mootness.23 They have not carried this




       21
            28 U.S.C. § 2283.
       22
            Regions Bank of La. v. Rivet, 224 F.3d 483, 488 (5th Cir. 2000).
       23
          Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000)
(citations omitted).

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                                           No. 10-20080

burden, given their previously demonstrated predilection for attempting to
relitigate the issues in this case even after abandoning suits or appeals.
         In light of principles of federalism and comity, courts generally tread
lightly when utilizing the relitigation exception to the Anti-Injunction Act.24 We
employ a four-part test to determine whether the exception permits an
injunction:
         (1) parties in the later action must be identical to or in privity with
         the parties in the previous action; (2) judgment in the prior action
         must have been rendered by a court of competent jurisdiction; (3)
         the prior action must have concluded with a final judgment on the
         merits; and (4) the same claim or cause of action must be involved
         in both suits.25

These four prongs have been met. It is uncontested that the same parties were
involved in both the federal and state court suits and that the district court had
jurisdiction over the original suit. With respect to the third prong, the district
court’s grant of summary judgment was a final judgment. Lastly, the argument
that Green and Gallman raised in the Hays County suit—Aird’s purported lack
of authority to act on behalf of Blanco River—was previously raised as a defense
in the federal suit.
         Green and Gallman argue, in the alternative, that the issuance of an
injunction is precluded by the equitable doctrine of laches because the parties
purportedly litigated the Hays County suit for seven months prior to Blanco
River’s seeking relief in federal court. A determination by the lower court not
to bar a suit on the basis of laches is reviewed for abuse of discretion.26 This
court employs a three-factor test in evaluating laches: “(1) delay in asserting a


         24
              Blanchard 1986, Ltd. v. Park Plantation, LLC, 553 F.3d 405, 407-08 (5th Cir. 2008).
         25
              Moore v. State Farm Fire & Cas. Co., 556 F.3d 264, 273 (5th Cir. 2009).
         26
              Kennedy v. Electricians Pension Plan, IBEW No. 995, 954 F.2d 1116, 1121 (5th Cir.
1992).

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                                       No. 10-20080

right or claim; (2) that the delay was inexcusable; (3) that undue prejudice
resulted from the delay.”27 Here, the determination that a seven-month delay
was insufficient was not an abuse of discretion.
      The injunction as issued, however, fails to comport with FED. R. CIV. P.
65(d). That rule requires that an injunction “state its terms specifically” and
“describe in reasonable detail—and not by referring to the complaint or other
document—the act or acts restrained or required.”28 An injunction cannot be
overly vague—a question of procedural due process—or overly broad—a question
of substantive law.29 After discussing the Hays County suit, the same defense
raised in the Illinois registration dispute, and the post-judgment discovery
objections, the injunction enjoins Green and Gallman “from interfering in the
collection of this court’s judgment.”           Previously this court determined an
injunction to be overly vague where the injunction prohibited the release of
personal information that would allow a recipient “to ascertain the name,
address, ranch, or location” of those protected by the injunction.30 We held that
this was overly vague because the defendants would be forced to determine what
information might allow a third party to ascertain the prohibited identities and
addresses.31 In the instant case, Green and Gallman are enjoined from taking
actions that may be lawful and permissible in response to collection efforts. For
example, would Green be in violation of the injunction if he filed for relief under
the Bankruptcy Code? Would Gallman be in violation if he asserted proper,



      27
           Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d 1155, 1161 (5th Cir. 1982).
      28
           FED. R. CIV. P. 65(d).
      29
           John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004).
      30
           Id. at 813.
      31
           Id. at 820.

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                                        No. 10-20080

lawful objections to impermissible efforts to collect the judgment? As a result,
the injunction does not comport with FED. R. CIV. P. 65(d).
                                              VI
      Green and Gallman urge us to reassign the case to a different district
court judge on remand, pursuant to 28 U.S.C. § 2106.32 We have stated that the
“power to reassign pending cases is an extraordinary one; it is rarely invoked.”33
We have identified two tests, both of which have been used by this court in
assessing such reassignments. In In re DaimlerChrysler Corp., we evaluated on
the basis of both tests.34 The first is:
      (1) whether the original judge would reasonably be expected upon
      remand to have substantial difficulty in putting out of his or her
      mind previously-expressed views or findings determined to be
      erroneous or based on evidence that must be rejected, (2) whether
      reassignment is advisable to preserve the appearance of justice, and
      (3) whether reassignment would entail waste and duplication out of
      proportion to any gain in preserving the appearance of fairness.35

The second test asks if the facts “might reasonably cause an objective observer
to question [the judge's] impartiality.”36 Though the district court here may have
expressed displeasure at times, it also explicitly stated that it was cognizant of
its responsibilities, and would faithfully execute its duties. Reviewing the record
in its totality, this extraordinary remedy is not justified.
                                       *       *        *




      32
           See, e.g., Johnson v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997).
      33
           Id. (quoting In Re John H. McBryde, 117 F.3d 208, 228-29 (5th Cir. 1997)).
      34
           294 F.3d 697, 700-01 (5th Cir. 2002).
      35
           Id.
      36
           Id. at 701.

                                              16
  Case: 10-20080   Document: 00511717420     Page: 17   Date Filed: 01/06/2012



                                No. 10-20080

      For the foregoing reasons, we AFFIRM the district court’s sanctions and
the district court’s determination that it had jurisdiction to enter additional
findings, VACATE the injunction as granted, DENY the motion to reassign the
case on remand, and REMAND for proceedings consistent with this opinion.




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