           Case: 12-12597   Date Filed: 03/20/2013    Page: 1 of 18

                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12597
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:10-cv-01904-GAP-DAB

DAVID MAUS,
MARK ORNSTEIN,

                                                             Plaintiffs-Counter-
                                                          Defendants-Appellees,

                                  versus

JOHN PATRICK ENNIS,

                                                  Defendant-Counter Claimant-
                                                Third Party Plaintiff - Appellant,

TOM BUCK, et al.,

                                                        Third Party Defendants.

                       ________________________

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

                             (March 20, 2013)
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Before HULL, JORDAN and FAY, Circuit Judges.

PER CURIAM:

      John Ennis, proceeding pro se, appeals the district court’s grant, in part, of a

default judgment in favor of David Maus and Mark Ornstein (collectively, the

“plaintiffs”) as a sanction against Ennis, the defendant, in their action filed

pursuant to the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C.

§ 1125(d) and Cyberpiracy Protection for Individuals (“CPI”), 15 U.S.C. §

8131(2). On appeal, Ennis argues that the district court (1) erroneously sanctioned

him with a default judgment without providing him with at least two opportunities

to comply with a discovery order; (2) showed biased against him by refusing to use

his religious names; and (3) erroneously entered the default judgment despite

evidence that he did not violate the ACPA. For the reasons set forth below, we

affirm the district court’s partial grant of a default judgment against Ennis.

                                           I.

      On December 21, 2010, Maus initiated a civil action against Ennis, and

Ornstein later joined as a plaintiff. Subsequently, Ennis, proceeding pro se, filed a

motion, requesting that the court require all parties to address him by his religious

names. The district court denied the motion.

      Ennis then filed a motion for the recusal of District Court Judge Gregory A.

Presnell pursuant to 28 U.S.C. § 455(a) and (b), alleging that Judge Presnell had


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shown “prejudice and bigotry” against him and all of the members of the “Temple

of ‘Hayah” (“TOH”) by refusing to recognize Ennis’s religious names. The district

court denied Ennis’s motion for recusal, finding that no reasonable person could

conclude that the court’s references to his legal name were evidence of bias,

prejudice, or a lack of impartiality. Further, the court noted that “Ennis ha[d]

adopted a posture of rudeness and disrespect toward the other parties,” and it

warned that, if Ennis’s disrespectful behavior continued, the court could impose

sanctions. Ennis filed two additional recusal motions, both of which were denied.

      Subsequently, the plaintiffs filed a motion for sanctions, alleging that Ennis

had sent them harassing e-mails, published a defamatory internet article, and

refused to communicate with their counsel. Additionally, on June 13, 2011, Maus

and Ornstein filed a second amended complaint, alleging that, in November 2010,

Ennis “came under the false impression that he or his company had been defamed

on the David Maus VW North Google Maps website.” As a result, Ennis became

angry and sent several threatening e-mails to Maus’s counsel. The complaint

alleged that, in the e-mails, Ennis claimed that Adoni International Services, Inc.

(“AIS”) had acquired multiple domain names that included the names Maus and

Ornstein. Further, Ennis has several aliases such as “God” and “Rabbi Sollog

Adoni,” and he purchased the domain names either anonymously or through an




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alias or fictitious business entity. Further, to the extent that the domain names

were registered by a business entity, it was merely Ennis’s “shell or alter-ego.”

      The complaint further alleged that some of the domain names included the

names of car dealerships in which Maus has a legal interest. Further, Maus’s name

is “distinctive and famous” due to his ownership interest in numerous car

dealerships throughout Florida, where he regularly appears in television

advertisements for his dealerships. Thus, his name and likeness are representative

of, and associated with, those dealerships. Finally, Ennis does not intend to use the

domain names for any legitimate purpose, and he demanded a financial settlement

from Maus in exchange for the domains.

      Based on these factual allegations, the plaintiffs alleged: (1) violations of the

ACPA, 15 U.S.C. § 1125(d) (“Count One”); (2) invasion of privacy (“Count

Three”); and (3) violations of the CPI, 15 U.S.C. § 8131 (“Count Four”). In Count

Two, the plaintiffs requested injunctive relief to prohibit Ennis’s continued use of

the domain names. In response, Ennis filed an answer and counterclaim.

      After the plaintiffs submitted their amended complaint, the magistrate judge

issued a report and recommendation that their motion for sanctions be granted, in

part. Specifically, to the extent that the motion sought an order requiring Ennis to

litigate in good faith, the request was unnecessary. As to the part of the motion to

be granted, the magistrate found that Ennis had posted an internet article, alleging


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that Ornstein was a “racist and a bigot who should be disbarred.” Further, Ennis’s

conduct was “reprehensible,” and he had “acted intentionally, in bad faith, and for

oppressive reasons.” Because the court had previously warned Ennis against

“rudeness and disrespect” toward the court and other parties, sanctions were

warranted. Thus, the magistrate recommended that the court admonish Ennis and

advise him that “any future rudeness or disrespect to counsel or the [c]ourt” would

result in more severe sanctions, which could include “monetary sanctions, the

striking of his pleadings[,] and the entry of a default judgment against him.” The

district court adopted the magistrate’s report and recommendation.

      On October 3, 2011, after the plaintiffs filed a motion to compel Ennis to

submit discovery responses, the district court ordered Ennis to produce all the

requested documents and sworn answers to the interrogatories within ten days.

The court warned that Ennis’s “failure to timely and fully comply with the terms of

this [o]rder may result in the imposition of sanctions, which may include the

imposition of monetary sanctions, the striking of pleadings or defenses or other

sanctions, as appropriate.”

      On October 17, 2011, the plaintiffs filed a motion for sanctions, including

the entry of a default judgment and dismissal of Ennis’s counterclaim, alleging that

he had submitted incomplete discovery responses. In response, Ennis alleged that




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much of the requested information was “privileged” due to his religious activity

and his involvement with national and international security matters.

       In December 2011, the magistrate judge issued a report and recommendation

that the district court grant the plaintiffs’ motion for sanctions. The magistrate

found that Ennis failed to comply with the court’s discovery order. Further, by

failing to file timely objections to the discovery requests, Ennis had waived any

objections based on privilege. Moreover, Ennis failed to establish any

recognizable privilege, and he made no showing that the requested information

related to any national or international security matters. Ennis appeared to believe

that he was not required to comply with federal rules or court orders, as his

responses to the discovery requests were “evasive and willfully incomplete,” and

as such, sanctions were “clearly warranted.” As to the severity of the sanction, the

magistrate noted that, if Ennis’s failure to comply with the discovery order had

been his first or only misconduct, lesser sanctions may have been appropriate.

However, based on Ennis’s behavior, the court was convinced that no lesser

sanction would be sufficient to compel Ennis’s cooperation. Specifically, Ennis

had “persistently acted with rudeness and disrespect. . . and ha[d] been admonished

for it, repeatedly.”

       Over Ennis’s objections, on December 16, 2011, the district court adopted

the magistrate’s report and recommendation, and granted the plaintiffs’ motion for


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sanctions. The court ordered that Ennis’s answer to the second amended complaint

and his counterclaim be stricken, and it entered a default judgment against him.

Further, the court instructed the plaintiffs that they must file a motion for entry of a

default judgment. On January 6, 2012, the plaintiffs filed such a motion,

requesting, among other things, reasonable attorney’s fees and statutory damages.

      Ennis raised numerous objections to the plaintiffs’ motion for a default

judgment, including that he did not register the domains, and that they were “cyber

grip[e] sites,” which qualify as “fair use” and are protected as free speech.

      After an evidentiary hearing, the magistrate issued a report and

recommendation that the district court grant, in part, and deny, in part, the

plaintiffs’ motion for entry of default judgment. By operation of the default, the

magistrate took the well pleaded allegations contained in the second amended

complaint as true. As to Count One, which alleged violations of the ACPA, there

was “more than sufficient evidence of bad faith.” However, while the complaint

established that the name “David Maus” was entitled to trademark protection, there

was no showing that the name “Mark Ornstein” was entitled to such protection.

      Additionally, the magistrate found that, as to Maus’s ACPA claim, the

record showed that Ennis, with a bad faith intent to profit, registered and used

domain names that incorporated Maus’s trademark without any reasonable grounds

to believe that the use was “fair use or lawful.” Further, the complaint alleged, and


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the record reflects, that Ennis controls AIS, the entity that he claims registered the

domain names. The complaint also alleged that Ennis had no legitimate purpose

for registering the domain names and that he threatened and demanded money

from Maus. The magistrate noted that Ennis’s assertion that he was not involved

in the registration of the domain names was foreclosed by the default. Regardless,

substantial evidence at the evidentiary hearing also indicated that Ennis used a

fictitious name to register the domains.

      The magistrate found, however, that the complaint was insufficient to entitle

the plaintiffs to a default judgment regarding their request for injunctive relief

(Count Two) and their invasion-of-privacy claim (Count Three). As to Count

Four, the complaint sufficiently pled a CPI violation as to both plaintiffs because it

alleged that Ennis registered the domain names with an intent to profit financially.

For these reasons, the magistrate recommended that the district court grant the

plaintiffs’ motion for entry of a default judgment as to Maus’s ACPA claim and

the CPI claim, and deny it as to the remaining claims.

      Over Ennis’s objections, the district court adopted the magistrate’s report

and recommendation. The court rejected Ennis’s argument that he should be

allowed another opportunity to comply with court orders before facing sanctions.

Specifically, Ennis received “numerous warnings” to cease his misbehavior and of

the consequences of failing to do so, and he ignored those warnings. Thus, the


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court granted, in part, and denied, in part, the plaintiffs’ motion for a default

judgment, consistent with the magistrate’s recommendation. Accordingly, the

court entered a default judgment against Ennis as to Count One (Maus only) and

Count Four (both plaintiffs), dismissed without prejudice Count One (Ornstein

only) and Count Three, and dismissed Count Two.

                                           II.

      We review the district court’s imposition of sanctions for abuse of

discretion. Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998). “A district

court abuses its discretion if it applies an incorrect legal standard, follows improper

procedures in making the determination, or makes findings of fact that are clearly

erroneous. Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332,

1336 (11th Cir. 2002). A district court may impose sanctions for litigation

misconduct under its inherent power. Eagle Hosp. Physicians, LLC v. SRG

Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir. 2009). Further,

Fed.R.Civ.P. 16(f) provides for sanctions as follows:

      (1) In General. On motion or on its own, the court may issue any just
      orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a
      party or its attorney:

             (A) fails to appear at a scheduling or other pretrial conference;

             (B) is substantially unprepared to participate--or does not
             participate in good faith--in the conference; or

             (C) fails to obey a scheduling or other pretrial order.
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      (2) Imposing Fees and Costs. Instead of or in addition to any other
      sanction, the court must order the party, its attorney, or both to pay the
      reasonable expenses--including attorney’s fees--incurred because of
      any noncompliance with this rule, unless the noncompliance was
      substantially justified or other circumstances make an award of
      expenses unjust.

Fed.R.Civ.P. 16(f). Sanctions under Rule 16(f) are “designed to punish lawyers

and parties for conduct which unreasonably delays or otherwise interferes with the

expeditious management of trial preparation.” Goforth v. Owens, 766 F.2d 1533,

1535 (11th Cir. 1985). Under Rule 37, the district court may, among other

sanctions, render a default judgment against the disobedient party. Fed.R.Civ.P.

37(b)(2)(A)(vi). However, in order to impose the severe sanction of a default

judgment, the district court must make a finding of willfulness or bad faith failure

to comply with a discovery order. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d

1536, 1542 (11th Cir. 1993). Violations of a court order “caused by simple

negligence, misunderstanding, or inability to comply will not justify a Rule 37

default judgment.” See id. Moreover, a default judgment is appropriate only as a

“last resort, when less drastic sanctions would not ensure compliance with the

court’s orders.” Id.

      Finally, while the pleadings of pro se litigants are held to a less stringent

standard than pleadings drafted by attorneys, Tannenbaum, 148 F.3d at 1263, pro

se litigants still must comply with procedural rules, Moton v. Cowart, 631 F.3d


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1337, 1340 n.2 (11th Cir. 2011). Specifically, we have held that pro se litigants

are subject to the Federal Rules of Civil Procedure, including sanctions for

misconduct and for failure to comply with court orders. See Moon v. Newsome,

863 F.2d 835, 837 (11th Cir.1989).

      As a preliminary matter, contrary to the plaintiffs’ argument, Ennis’s appeal

is not untimely as to the district court’s initial December 2011 order imposing

sanctions. See Barfield v. Brierton, 883 F.2d 923, 930-31 (11th Cir. 1989)

(holding that, when reviewing a final judgment, we generally also have jurisdiction

to review “all prior non-final orders and rulings which produced the judgment”).

Here, the district court’s December 2011 order was a non-final order because it

instructed the plaintiffs to file a motion for entry of a default judgment, which the

court later granted, in part, in its final order on April 13, 2012. On May 9, 2012,

Ennis filed a timely appeal of the court’s final order, and as such, we also have

jurisdiction over the prior order. Fed.R.App.P. 4(a)(1)(A).

      The district court did not abuse its discretion when it imposed a default

judgment against Ennis as a sanction for his disrespectful conduct and his refusal

to participate in discovery. On appeal, Ennis fails to address the district court’s

finding that he had exhibited rude and disrespectful behavior throughout the

litigation. Thus, it appears that Ennis has abandoned any challenge to the district

court’s factual finding that his behavior was rude and disrespectful. See Timson v.


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Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (holding that issues not briefed on

appeal by a pro se litigant are deemed abandoned). Regardless, the district court’s

finding regarding Ennis’s misbehavior was supported by the record. Specifically,

Ennis accused the district court of “ignorance” and “incompetency,” and he sent

numerous harassing e-mails to the plaintiffs, accusing Ornstein of being a “bigot”

and a “racist.” As such, the district court did not abuse its discretion for entering a

default judgment, in part, as a sanction for Ennis’s disrespectful behavior. See

Eagle Hosp. Physicians, LLC, 561 F.3d at 1306.

      Further, as to Ennis’s failure to comply with the court’s discovery order, he

repeatedly asserts that a pro se litigant must fail to comply with at least two

discovery orders to justify a default judgment. However, he does not provide, and

research does not reveal, any binding legal authority in support of his contention.

To the contrary, pro se litigants are required to comply with the district court’s

procedural rules and may be subjected to sanctions for failing to do so. See Moton,

631 F.3d at 1340 n.2; Moon, 863 F.2d at 837. Here, before imposing the default

judgment, the district court complied with its obligation to make findings that

Ennis had acted willfully and with bad faith and that a less severe sanction would

have been insufficient. Malautea, 987 F.2d at 1542. Specifically, the court noted

that, if Ennis’s failure to comply with the discovery order had been his only

misconduct, lesser sanctions may have been appropriate. The court found,


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however, that Ennis had exhibited a pattern of conduct that showed disrespect for

the court’s rules and a lesser sanction would have been insufficient to ensure his

cooperation. Nothing in the record suggests that a lesser sanction would have been

adequate, as Ennis had already been admonished for his misconduct, and the court

repeatedly warned him that further misconduct could result in sanctions, including

a default judgment.

      Additionally, the court found that Ennis’s discovery responses were “evasive

and willfully incomplete,” and on appeal, he does not allege that his incomplete

answers were the result of negligence or a misunderstanding. Id. Instead, he

suggests that he was not required to comply with the court’s discovery order

because the requested information and documents were “privileged.” However, he

fails to address the district court’s finding that he did not file any timely objections

to the discovery requests based on a recognized privilege. In sum, Ennis has failed

to establish that the district court abused its discretion in determining that a default

judgment was appropriate based on his disrespectful behavior and his refusal to

participate in discovery.

                                          III.

      We review the district court’s denial of a recusal motion for abuse of

discretion. Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001).

      Under § 455(a), a federal judge is required to recuse himself whenever his


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“impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Recusal is

only appropriate where “an objective, disinterested, lay observer fully informed of

the facts underlying the grounds on which recusal was sought would entertain a

significant doubt about the judge’s impartiality.” United States v. Amedeo, 487

F.3d 823, 828 (11th Cir. 2007). Under § 455(b), a judge should also disqualify

himself where he has a “personal bias or prejudice concerning a party, or a

personal knowledge of disputed evidentiary facts.” 28 U.S.C. § 455(b)(1).

However, judicial rulings unaccompanied by allegations of bias based on an extra-

judicial source “almost never constitute a valid basis for a bias or partiality

motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127

L.Ed.2d 474 (1994).

      The district court did not abuse its discretion in denying Ennis’s recusal

motions. On appeal, Ennis identifies no evidence to suggest that the Judge

Presnell’s impartiality could reasonably be questioned by an objective observer or

that he had a personal bias against Ennis. See 28 U.S.C. § 455(a) and (b). Instead,

Ennis’s sole complaint is that the court used his “birth name” or legal name, rather

than his preferred religious names. However, the court’s use of Ennis’s legal name

does not suggest that Judge Presnell lacked impartiality or that Judge Presnell had

a personal bias against Ennis based on an extrajudicial source. Amedeo, 487 F.3d




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at 828; Liteky, 510 U.S. at 555, 114 S.Ct. at 1157. Thus, the district court properly

exercised its discretion in denying Ennis’s recusal motions.



                                          IV.

      After a default is entered against a defendant, he is deemed to have admitted

the plaintiffs’ well-pleaded factual allegations, and on appeal, he is barred from

contesting those facts. Eagle Hosp. Physicians, 561 F.3d at 1307. Thus, “[a]

default judgment is unassailable on the merits, but only so far as it is supported by

well-pleaded allegations.” Id. A defendant, on appeal, may challenge the

sufficiency of the complaint, but not the sufficiency of the proof. Id. We review

the sufficiency of a complaint de novo. Id. at 1303.

      We have explained that,

      Cybersquatting is a form of trademark misuse. This activity is defined
      to be the conduct of one who reserves with a network information
      center a domain name consisting of the mark or name of a company
      for the purpose of relinquishing the right to the domain name back to
      the legitimate owner for a price.

Id. at 1307. Under the ACPA, a person commits cybersquatting, if, without regard

to the goods or services of the parties, that person

      (i)    has a bad faith intent to profit from that mark, including a personal
             name which is protected as a mark under this section; and

      (ii)   registers, traffics in, or uses a domain name that—



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             (I) in the case of a mark that is distinctive at the time of registration of
             the domain name, is identical or confusingly similar to that mark;

             (II) in the case of a famous mark that is famous at the time of
             registration of the domain name, is identical or confusingly similar to
             or dilutive of that mark; or

             (III) is a [protected] trademark, word, or name. . .

15 U.S.C. § 1125(d). Similarly, under the CPI statute, a person is liable who

registers a domain name that consists of another person’s name, without the

person’s consent, with the specific intent to profit by selling the domain name to

that person or a third party. 15 U.S.C. § 8131.

      As an initial matter, to the extent that the parties dispute the evidence that

was presented at the evidentiary hearing, we cannot review those arguments

because Ennis has not provided a transcript of the hearing on appeal. See

Pensacola Motor Sales Inc. v. Eastern Shore Toyota, LLC, 684 F.3d 1211, 1224

(11th Cir. 2012) (explaining that, under the “absence equals affirmance” rule, “the

burden is on the appellant to ensure the record on appeal is complete, and where a

failure to discharge that burden prevents us from reviewing the district court’s

decision we ordinarily will affirm the judgment”). Thus, to the extent that the

outcome of this appeal depends on a review of the testimony and evidence that was

presented at the evidentiary hearing, we would affirm because the record on appeal

is incomplete. See id.



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      Regardless, because the district court entered a default judgment against

Ennis, our review is limited to whether the judgment is supported by the well-

pleaded facts in the complaint. See Eagle Hosp. Physicians, 561 F.3d at 1307. On

appeal, Ennis asserts that his primary argument is that “evidence” showed that AIS

was the legal entity that registered the domain names, and as such, he cannot

personally be held liable. However, Ennis is precluded from challenging the

sufficiency of the proof on appeal, and instead, he is limited to challenging the

sufficiency of the complaint. See id. Here, the complaint sufficiently alleged that

Ennis registered the domain names, either anonymously or through an alias or a

fictitious business entity. Further, the complaint acknowledged Ennis’s allegation

that AIS had registered the domain names, but it alleged that AIS acted merely as

his “shell” or “alter-ego.” The magistrate correctly found that the complaint

alleged that Ennis controlled AIS, and as such, his argument that he was not

involved in registering the domain names was foreclosed by the default. See id.

Further, on appeal, Ennis asserts a single, conclusory allegation that Maus does not

own a trademark in the names of his businesses. However, this allegation does not

appear to challenge the sufficiency of the complaint, and as discussed above, Ennis

is precluded from challenging the sufficiency of the proof. See id.

      Finally, because the well-pleaded allegations in the complaint are taken as

true, Ennis is also precluded from asserting that any use of the domain names was


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constitutionally protected as fair use or free speech. See id. Here, the complaint

sufficiently alleged that Ennis had no legitimate purpose for registering the domain

names, and that he demanded money from Maus in exchange for them.



      For the foregoing reasons, we affirm the default judgment against Ennis.

      AFFIRMED.




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