           Case: 19-12378    Date Filed: 11/25/2019   Page: 1 of 7


                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 19-12378; 19-12901
                        Non-Argument Calendar
                      ________________________

                D.C. Docket Nos. 2:16-cv-00776-SPC-CM,
                            2:16-cv-00776-SPC-UAM


LOUIS MATTHEW CLEMENTS,

                                                             Plaintiff-Appellant,

                                   versus

3M ELECTRONIC MONITORING,

                                                           Defendant-Appellee.

                      ________________________

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

                            (November 25, 2019)


Before MARTIN, GRANT and TJOFLAT, Circuit Judges.

PER CURIAM:
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      Louis Clements, proceeding pro se, sued 3M Electronic Monitoring (“3M”) 1

in federal court alleging that an ankle-monitoring bracelet 3M manufactured was

defective. We have previously issued orders affirming the dismissal of his second

amended complaint and affirming the denial of two motions for reconsideration.

Clements now appeals from the denial of his third and fourth motions for

reconsideration. Following careful review, we affirm.

                                           I.

      Clements filed his initial complaint on October 19, 2016. He amended his

complaint twice, after which 3M moved to dismiss all his claims. The district

court dismissed Clements’s claims as time-barred and denied his motion for

reconsideration and recusal. Clements requested leave to amend to add a claim of

intentional infliction of emotional distress (“IIED”) in his opposition to the motion

to dismiss, the district court’s order on the motion to dismiss did not address

Clements’s request to amend. Clements, in turn, did not mention this request in his

motion for reconsideration or his initial appeal. We affirmed the district court’s

dismissal on the ground that Clements failed to allege physical harm to his person

or property. See Clements v. Attenti US, Inc. (“Clements I”), 735 F. App’x 661,

663–64 (11th Cir. 2018) (per curiam) (unpublished). Physical harm is a necessary



      1
       During this case, 3M Electronic Monitoring was sold by 3M Company and the company
name was changed to Attenti US, Inc. For the sake of continuity, we continue to use “3M.”
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element to recovery under either a theory of strict products liability or negligence

in Florida. See id. at 663. Because the issue had not been raised, our order

affirming dismissal of Clements’s case did not address whether dismissal without

leave to amend was appropriate. Id. at 664.

      Clements then filed a second motion for reconsideration before the district

court, this time arguing he should have been granted leave to amend his complaint

to allege claims of IIED. The district court denied his motion and again, this Court

affirmed. See Clements v. 3M Elec. Monitoring (“Clements II”), 770 F. App’x

506, 508–09 (11th Cir. 2019) (per curiam) (unpublished). Our order on the second

motion for reconsideration stated that, while the district court should have

addressed Clements’s request for leave to amend at the motion to dismiss stage of

litigation, the failure to do so was not so extraordinary as to require reconsideration

under Federal Rule of Civil Procedure 60(b). Id. at 508.

      Following our issuance of the order in Clements II but before the mandate

issued, Clements submitted his third motion for reconsideration before the district

court. This time his motion urged the court to reconsider its initial motion

dismissing his complaint and grant him leave to amend his complaint. The district

court again denied Clements relief. Clements then moved the district court for

reconsideration a fourth time. In his fourth motion, Clements asked the district

court to reconsider its order denying his third motion for reconsideration. He

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argued he should be allowed to file a third amended complaint alleging a

“continuing tort” that would vitiate the court’s concerns about his claims being

time-barred and facts that would give rise to his emotional distress claims. The

district court denied the motion, holding Clements (1) waived his right to challenge

the denial of his first motion to amend by not including it in his initial appeal and

(2) had not shown reconsideration was needed to correct clear error or prevent

manifest injustice.

                                           II.

      In this consolidated appeal, Clements challenges the denial of his third and

fourth motions for reconsideration. 3M has filed a brief in opposition to both

appeals. 3M also asks us to impose a filing injunction on Clements.

                                           A.

      First, we affirm the district court’s denial of Clements’s motions for

reconsideration. Earlier this year, we said the district court did not abuse its

discretion when it denied Clements’s motion to reconsider the denial of his motion

for leave to amend. Clements II, 770 F. App’x at 508–09. We held that, even if

Clements was correct that the district court should have addressed his motion to

amend at an earlier stage in the litigation, he was not entitled to relief at this point

because he had forgone “the opportunity to challenge the district court’s failure to

address his motion for leave to amend both in his initial motion for reconsideration

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and during his first appeal to this Court.” Id. at 508. This holding is the law of the

case and binds us here. Clements’s third and fourth motions raise the same issues

based on the same evidence as in his earlier, unsuccessful motions. See United

States v. Escobar-Urrego, 110 F.3d 1556, 1561 (11th Cir. 1997) (“[A] decision of a

legal issue or issues establishes the ‘law of the case’ and must be followed in all

subsequent proceedings in the same case . . . .” (alteration adopted and quotation

marks omitted)).

      Clements says denying him the ability to amend would result in substantial

injustice. However, this Court has already concluded that, even if the district court

should have addressed his request for leave to amend during the motion to dismiss

stage of litigation, this did not warrant extraordinary relief. See Clements II, 770

F. App’x at 508–09. In addition, Clements’s arguments regarding the district

court’s decision to take judicial notice of certain documents filed in state court are

irrelevant insofar as those documents related only to the district court’s dismissal

based on the statute of limitations. As stated above, this Court’s decision to affirm

the dismissal of Clements’s case was not based on the statute of limitations. See

Clements I, 735 F. App’x at 663–64. Thus, there is no manifest injustice

warranting relief. See Escobar-Urrego, 110 F.3d at 1561 (stating that manifest

injustice may be found where decision below was clear, reversible error).




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                                           B.

      3M urges us to enjoin Clements from making any further pro se filings

without the consent of a magistrate judge. Although we have the power to sanction

a frivolous litigant from filing further papers without leave of the court, see Higdon

v. Fulton County, 746 F. App’x 796, 800 (11th Cir. 2018) (per curiam)

(unpublished) (recognizing the federal courts’ inherent power to enjoin abusive

and vexatious litigation), we decline to do so here. Where one litigant seeks to

prevent another litigant from filing further papers in conjunction with a particular

action, relief is better sought from the district court in the first instance. See

Higdon, 746 F. App’x at 800 (collecting cases where district courts imposed a

filing injunction). A circuit-wide filing injunction could be a proper remedy

against a litigant who has engaged in abusive litigation practices across multiple

courts and cases. Cf. Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993) (“[T]he

scope of the [filing injunction] must be narrowly tailored to fit the particular

circumstances of the case before the District Court.”); Vinson v. Heckmann, 940

F.2d 114, 116–17 (5th Cir. 1991) (per curiam) (imposing circuit-wide filing

injunction after existing sanctions proved insufficient to deter frivolous litigation

tactics). However, 3M has presented no evidence of such widespread abuse. To

the extent 3M seeks monetary sanctions, we deny the motion given Clements’s pro

se status. See Weaver v. Mateer & Harbert, P.A., 523 F. App’x 565, 566 n.1 (11th

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Cir. 2013) (per curiam) (unpublished); Woods v. IRS, 3 F.3d 403, 404 (11th Cir.

1993) (per curiam). We note, however, that Clements’s repeated motions for

reconsideration smack of frivolity, and if this pattern continues, 3M could be

justified in seeking sanctions from the district court. See Weaver, 523 F. App’x

at 566 n.1.

                                        III.

      The district court’s orders denying Clements’s third and fourth motions for

reconsideration are AFFIRMED. 3M’s motion for sanctions is DENIED

WITHOUT PREJUDICE.




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