                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                         MAY 17, 2012
                                     No. 10-14141
                                                                          JOHN LEY
                               ________________________
                                                                           CLERK

                       D. C. Docket No. 6:08-cv-00035-MSS-GJK

JOEANN MCCLANDON,

                                                                            Plaintiff-Appellee,

                                             versus

HEATHROW LAND COMPANY LIMITED PARTNERSHIP,
a Florida Limited Partnership,
HEATHROW REALTY, LLC,
a Florida Limited Liability Company,

                                                                      Defendants-Appellants.

                               ________________________

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

                                        (May 17, 2012)

Before WILSON, ANDERSON and HIGGINBOTHAM,* Circuit Judges.

________________
         * Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
PER CURIAM:

      We have had the benefit of oral argument in this case, and have carefully

considered the briefs and relevant portions of the record. For several reasons, we

conclude that the instant record falls short of the established standard required to

support the severe sanction of default. There was no clear district court order

requiring Heathrow Land Company Limited Partnership and Heathrow Realty,

LLC, to have had substitute counsel as of the January 25, 2010, trial. To the

contrary, the Heathrow entities reasonably understood from the district court’s

comments at the December 30, 2009, pretrial conference that, although they would

try to have substitute counsel available, they could proceed with Roecker as

counsel so long as they did not present him as a witness. As Plaintiff

acknowledges, a finding of bad faith is a key element to support the default

sanction. See Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir.

1993). In this case, there was no finding of willful or bad faith disregard of court

orders, or other willful misconduct. Moreover, the record would not have

supported such a finding. The district court’s order was also entered without

consideration of lesser sanctions. See Cohen v. Carnival Cruise Lines, Inc., 782

F.2d 923, 925 (11th Cir. 1986).

      For these and other reasons, we conclude that the district court abused its

                                           2
discretion in striking the Heathrow entities’ pleadings and ordering a default

judgment as to liability, a decision that tainted the remaining proceedings below.

We also find unpersuasive Plaintiff’s argument that the judgment of the district

court should be affirmed on the alternative ground that the district court made a

finding of liability. The proceedings had already been tainted, and the liability

issue was resurrected in the absence of the Heathrow entities and after they had

been told that the liability issue was resolved and over.

      For the foregoing reasons, the judgment of the district court is reversed, and

the case is remanded to the district court for a new trial on both liability and

damages.

      REVERSED and REMANDED.




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