                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-14096                  MARCH 22, 2006
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                   D. C. Docket No. 04-23186-CV-JLK

RICKY TONNESEN,


                                                      Plaintiff-Appellant,

                                  versus

MARLIN YACHT MANUFACTURING, INC.,
GIUSEPPE GISMONDI,
a.k.a. Joe Gismondi,


                                                     Defendants-Appellees.


                       ________________________

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

                            (March 22, 2006)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:
      Plaintiff Ricky Tonnesen appeals the district court’s entry of an order

dismissing his suit against Marlin Yacht Manufacturing, Inc. (“Marlin Yacht”), and

Guiseppe Gismondi, the president of Marlin Yacht (collectively referred to as

“Defendants”). Tonnesen argues that the district court erred in (1) dismissing his

case based on an affidavit that the Defendants submitted without service to him,

rendering it an ex parte communication; (2) denying his motion to strike the

affidavit and motion to vacate the judgment; and (3) entering a final order as to his

claims because issues of material fact remain. After review, we reverse.

                                 I. BACKGROUND

      We recount in detail the procedural background, as it clearly shows why we

must reverse.

      A.     First Lawsuit in Florida

      In May 2000, plaintiff Tonnesen filed in the district court for the Southern

District of Florida a lawsuit against the Defendants relating to a yacht purchased by

Tonnesen from Marlin Yacht in 1996. In 2001, the parties entered into a

settlement agreement (the “Agreement”) resolving that litigation.

      The Agreement required the Defendants to completely restore and repair

Tonnesen’s yacht. Specifically, the Defendants were required, among other things,

to (1) either repair Tonnesen’s engines so that they tested at a compression of 120



                                          2
pounds, or, if the engines failed to meet the specifications, replace the engines with

new ones of “like kind, quality and appearance”; (2) complete their obligations

under the Agreement within 60 days of being notified that the vessel was ready for

Marlin Yacht to take possession; (3) pay Tonnesen $100/day for every day over 60

days that they had possession of the vessel; and (4) deliver the vessel to Tonnesen

upon the decision of Tonnesen’s marine surveyor that the repairs outlined in the

Agreement had been made.

      B.     Second Lawsuit Filed in Texas

      In February 2003, Tonnesen filed suit against the Defendants in Texas state

court, alleging breach of contract and anticipatory breach of contract with respect

to the Agreement. Tonnesen’s suit also contained claims of fraudulent inducement

to enter a contract and conversion. In March 2003, the Defendants removed the

action to federal court in Texas.

      In March 2004, Tonnesen filed a motion for summary judgment and several

exhibits, including an affidavit and report from marine surveyor James McCrory.

As detailed in his report and affidavit, McCrory had inspected the yacht on

September 30, 2001, and found that the Defendants had failed to perform the

required repairs, including the requirement of compression at 120 pounds.

      Tonnesen also filed the affidavit and report of marine surveyor Robert



                                           3
Reinhold. As outlined in his affidavit, Reinhold went to Marlin Yacht, at

Tonnesen’s request, to retrieve the yacht, but Gismondi refused to release the yacht

without a written release, signed by Tonnesen, accepting the yacht “as is.”

Reinhold’s affidavit also stated that he had inspected the yacht in July 2003.

Reinhold’s report from that inspection did not address the condition of the engines

but noted many other conditions still requiring repair. The Texas district court

denied Tonnesen’s summary-judgment motion, determining that “[g]enuine issues

of material fact exist with respect to all claims.”

       C.      Second Lawsuit Transferred to Florida

       On December 10, 2004, the district court for the Northern District of Texas

transferred the action to the district court for the Southern District of Florida,

where the case was assigned to the same judge who had presided over the previous

lawsuit between the parties. On March 10, 2005, the Florida district court issued

an order requiring the Defendants, Gismondi and Marlin Yacht, to brief why they

failed to abide by the Agreement and why they should not be held in contempt for

failing to perform the Agreement.1



       1
        The order also required Tonnesen to brief why he had failed to proceed with an
application for contempt of court until almost five years after the Agreement was signed.
Tonnesen’s brief responded, inter alia, that he did not believe the Agreement was enforceable
through contempt because the district court’s order in the previous action had not ordered the
Defendants to perform their obligations.

                                                4
       Upon receipt of the order, Gismondi, acting on behalf of himself and Marlin,

wrote a letter to the district court arguing that they had substantially complied with

the Agreement. Gismondi asserted that there was a typographical error in the

Agreement that made compliance impossible; that is, the 120-pound engine

compression, required by the Agreement, was higher than the engines on the yacht

were designed to produce. Gismondi attached to his letter a copy of the engine

specifications showing a compression of 90 to 110 pounds.

       The Defendants also submitted through counsel a brief asserting that there

were genuine issues of material fact as to whether they had complied with the

Agreement, which would make a holding of contempt improper.2 The Defendants

attached the following documents to their brief, inter alia,(1) an affidavit from

Gismondi asserting that they had complied with the Agreement inasmuch as was

possible, that the Defendants had attempted to get Tonnesen to reclaim the vessel,

and that Tonnesen neither picked up the vessel, sent an individual to check on the

repairs to the vessel, nor provided his agent with identification to prove that he

could pick up the vessel on Tonnesen’s behalf; and (2) an affidavit from a

technician who stated that the engines on the vessel could not be made to perform

at the level specified in the Agreement.


       2
         The Defendants noted the Texas district court’s prior determination that material issues
of fact precluded summary judgment as to all claims.

                                                5
      Tonnesen asserted in his brief that the only reason he could see for the

Defendants’ non-performance was that they had never intended to perform their

obligations. Tonnesen argued that a defense of impossibility was inapplicable

because the Agreement stipulated that, if the engines on the boat did not meet

specified standards, they would be replaced.

      D.     Florida District Court’s April 15, 2005, Order

      Upon receipt of both briefs, on April 15, 2005, the district court entered an

order enforcing the Agreement. The terms of the order are important to this

appeal. The order provided that the Defendants shall perform the work within

sixty days or provide affidavits within thirty days stating either that the work was

completed or why it was impossible to perform the work, as follows:

      Defendants shall abide by their agreement and perform the work
      outlined in paragraphs 1-10 of the settlement agreement within sixty
      (60) days of the date of this Order. If the Defendants have already
      performed the work, they shall provide the Court with Affidavits
      stating the specific work completed. If any of the work is impossible
      to perform, Defendants shall provide the Court with Affidavits
      outlining: (1) why that specific obligation has not been fulfilled; and
      (2) what efforts have been taken in an attempt to fulfill an obligation
      that Defendant allegedly can not complete, and the reason for
      impossibility of performance. Defendants shall provide the Court
      with their Affidavits within thirty (30) days of the date of this Order.

Thus, the Defendants’ affidavits, if any, were due by May 16, 2005.

      On June 13, 2005, Gismondi, proceeding pro se on behalf of himself and



                                           6
Marlin Yacht,3 submitted an affidavit to certify compliance with the Agreement. In

the affidavit, Gismondi stated that all portions of the Agreement had been fulfilled

except the120-pound-engine-compression requirement. Gismondi again asserted

that, according to manufacturer’s specifications, it was not possible to reach 120

pounds of compression. Gismondi attached to the affidavit: (1) a letter certifying

the electronics on the vessel met specifications; (2) a letter certifying the required

motor inspection, compression test, spark test, and gear inspection, and showing

results within the manufacturer’s specifications; and (3) a copy of the service

manual, which specified 80 to 90 pounds compression for the engines. The

affidavit was signed and notarized, but did not contain a certificate of service.

Instead, typed at the bottom of the affidavit, was “cc:” indicating that a carbon

copy had been sent to Tonnesen’s counsel.

       E.     Florida District Court’s June 17, 2005, Order

       On June 17, 2005, four days after receiving the affidavit, the district court,

acting sua sponte, entered an order dismissing the case with prejudice. The district

court found, based on the Gismondi affidavit, that the provision in the Agreement

requiring that the engines reach 120 pounds of compression was an impossible task



       3
          On April 25, 2005, the Defendants’ attorney filed a motion to withdraw as counsel. The
district court granted this motion, and gave the Defendants twenty days to procure new counsel.
The Defendants never hired a new attorney in the district court or for this appeal.

                                               7
and the Agreement had been fully performed.

      Upon receipt of the dismissal, Tonnesen promptly filed two motions. On

June 30, 2005, Tonneson filed a motion to strike the affidavit, contending that (1)

the affidavit was filed more than 30 days after the district court’s order and thus

was untimely and should not have been accepted; and (2) the Defendants failed to

serve a copy of the affidavit as required by Federal Rule of Civil Procedure 5, and

thus the affidavit was not properly before the court and should be stricken.

Tonnesen further asserted that he had not received the affidavit nor even been

aware of its existence until the dismissal order.

      Also on June 30, 2005, Tonnesen filed a motion to vacate the judgment,

arguing, inter alia, that the district court erroneously had (1) failed to give the

required notice that Tonnesen’s claims were set for dismissal; (2) thrown out

causes of action that were unrelated to whether the Agreement had been breached;

and (3) based its decision on an ex parte communication from the Defendants that

was not properly before the district court.

      On July 1, 2005, the district court summarily denied both motions.

Tonnesen timely appealed.

                                   II. DISCUSSION

      On appeal, Tonnesen argues that the district court (1) violated his procedural



                                              8
due-process rights by sua sponte dismissing his claims without notice; and (2)

erred in dismissing all his claims based on the Gismondi affidavit. We agree with

Tonnesen that the district court committed reversible error.

       First, the district court based its dismissal decision on the Gismondi

affidavit, and Tonnesen asserts – and the Defendants do not dispute 4 – that

Tonnesen was never served with the affidavit, as required by Federal Rule of Civil

Procedure 5. Fed. R. Civ. P. 5(a) (requiring generally that “every pleading

subsequent to the original complaint . . . , every paper relating to discovery

required to be served upon a party . . . , every written motion other than one which

may be heard ex parte, and every written notice, appearance, demand, offer of

judgment, designation of record on appeal, and similar paper shall be served upon

each of the parties”). Although the affidavit contained a “cc:” indicating that it

was served on Tonnesen’s counsel, there was no certificate of service attached to

the affidavit, as required by Rule 5. Fed. R. Civ. P. 5(d) (“All papers after the

complaint required to be served upon a party, together with a certificate of service,

must be filed with the court within a reasonable time after service . . . .”) (emphasis




       4
        The Defendants have failed to file a brief on appeal. The Defendants also did not
respond to Tonnesen’s motions in the district court, but we note that the district court ruled the
day after Tonnesen filed the motions.

                                                 9
added).5

       Because the affidavit was not properly served on Tonnesen or his counsel

but presented only to the district court, the affidavit was in effect an ex parte

communication. “Our adversarial legal system generally does not tolerate ex parte

determinations on the merits of a civil case.” Application of Eisenberg, 654 F.2d

1107, 1112 (5th Cir. Unit B Sep. 1981). “The right to due process ‘encompasses

the individual’s right to be aware of and refute the evidence against the merits of

his case.’” Vining v. Runyon, 99 F.3d 1056, 1057 (11th Cir. 1996) (quoting

Eisenberg, 654 F.2d at 1112). Accordingly, this Court has established that a

district court’s consideration of ex parte submissions “to determine the merits of

litigation is allowable only when the submissions involve compelling national

security concerns or the statute granting the cause of action specifically provides”

for ex parte resolution of the dispute. Id. Because neither circumstance exists in

this case, the district court erred in considering the Gismondi affidavit and abused




       5
          We also note that Local Rule 5.2(A) for the United States District Court for the Southern
District of Florida requires that every paper Fed.R.Civ.P. 5(a) required to be served on other
parties “shall include a certificate of service stating the persons or firms served, their relationship
to the action or proceeding, the date, method, and address of service. Signature by the party or
its attorney on the original constitutes a representation that service has been made.” N.D. Fla. R.
5.2(A).


                                                  10
its discretion in denying Tonnesen’s motion to strike the affidavit.6

       Further, the district court sua sponte dismissed the case based on the

Gismondi affidavit without giving Tonnesen any opportunity to review or respond

to the affidavit and without giving notice to Tonnesen of its intention to consider

dismissing the case. Moreover, the sua sponte dismissal was with prejudice. We

readily conclude that the district court committed reversible error in so doing. See

Jefferson Fourteenth Assoc. v. Wometco de Puerto Rico, Inc., 695 F.2d 524, 526

(11th Cir. 1983) (noting that courts may exercise their inherent power to dismiss a

suit based on a lack of merit “only when the party who brought the case has been

given notice and an opportunity to respond”).

       Accordingly, we reverse and vacate the district court’s June 17, 2005, order

dismissing Tonnesen’s claims with prejudice. We also conclude that the district

court erred in not granting Tonnesen’s motion to strike the Gismondi affidavit and

motion to vacate the judgment and thus reverse and vacate the district court’s July

1, 2005, order denying those motions. On remand, the district court shall conduct

further proceedings consistent with this opinion and shall strike and not consider

the Gismondi affidavit currently in the record.7

       6
         We review a district court’s denial of a motion to strike an affidavit for abuse of
discretion. Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1337 (11th Cir. 2000).
       7
        Because we conclude that the district court erred in considering the Gismondi affidavit
and in granting judgment on that basis, we need not consider Tonnesen’s remaining arguments at

                                                 11
        REVERSED, VACATED, AND REMANDED.




this time. Instead, we leave it to the district court to determine in the first instance the merits of
Tonnesen’s claims.

                                                  12
