           Case: 17-13070   Date Filed: 09/06/2018   Page: 1 of 16




                                                      [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13070
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:15-cv-60946-WJZ



FIRESTONE BUILDING PRODUCTS COMPANY, LLC,

                                                            Plaintiff - Appellee,

                                  versus

ANTERO RAMOS,

                                                         Defendant - Appellant.

                       ________________________

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

                            (September 6, 2018)

Before TJOFLAT, NEWSOM, and JULIE CARNES Circuit Judges.

PER CURIAM:
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      Firestone Building Products Company, LLC (Plaintiff) filed suit against its

former employee Antero Ramos for fraud, alleging that he orchestrated a scheme

from his Florida office to submit false invoices for sales in Brazil that never

occurred in an effort to boost his bonus compensation. In the district court, Ramos

moved to dismiss for forum non conveniens, filed an untimely motion for an

extension of time to respond to Plaintiff’s summary judgment motion, submitted a

Rule 60(b) motion for relief from the court’s summary judgment order, and moved

for a trial continuance. The district court denied each motion. Ramos appeals

these denials but, because we conclude that the district court did not abuse its

discretion, we affirm.

I.    BACKGROUND

      A.     Factual Background
      Plaintiff is a limited liability company that sells building materials and

products, including roofing and wall products. Plaintiff is headquartered in

Indianapolis, Indiana and organized under Indiana law. Plaintiff’s parent

company, Bridgestone Americas, Inc., is based in Nashville, Tennessee.

      In 2006, Ramos began working for Bridgestone America’s subsidiary in

Brazil. In 2009, Ramos was promoted to work for Plaintiff as the General

Manager of Plaintiff’s Latin American and Caribbean operations. As part of the



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promotion, Ramos moved to Fort Lauderdale, Florida and worked out of Plaintiff’s

office there. As General Manager, Ramos had authority to transact business on

behalf of Plaintiff and oversaw Plaintiff’s Brazilian sales and operations (as well as

the sales and operations in other Latin American and Caribbean countries). On top

of his base salary, Ramos was eligible for bonuses contingent on sales volume,

profit, and other factors.

      In January 2015, Ramos’s supervisor learned that auditors had discovered

improprieties in Brazilian sales transactions from December 2014. The auditors

found evidence that Ramos had directed his subordinates to create false invoices

for roughly $22 million worth of sales that never actually occurred. As a result,

Ramos was terminated from his position with Plaintiff. Ramos filed a lawsuit

against Bridgestone America’s Brazilian subsidiary in Brazil alleging wrongful

termination and other claims.

      B.     Procedural History
      In May 2015, Plaintiff filed this lawsuit against Ramos in the Southern

District of Florida. Plaintiff’s amended complaint alleged, among other things,

that Ramos breached his fiduciary duty to the company and engaged in a

conspiracy to defraud Plaintiff through a false invoicing scheme in an effort to




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boost his bonuses. Ramos moved to dismiss for forum non conveniens, arguing

that Brazil was the more appropriate forum. The district court denied the motion.

      On September 6, 2016, Plaintiff moved for summary judgment. Under the

district court’s scheduling order, Ramos’s response was due on September 26.

Ramos failed to file a response by the deadline. On October 21, nearly a month

after the deadline had passed, Ramos moved for an extension of time to file his

reply. The district court denied the motion for an extension. Ruling on Plaintiff’s

unopposed summary judgment motion, the district court granted summary

judgment to Plaintiff on its fraud, conspiracy, and breach of fiduciary duty claims,

denied summary judgment on the unjust enrichment, constructive trust, and

conversion claims, and reserved the determination of damages for trial. Plaintiff

later voluntarily dismissed the claims it had not won summary judgment on.

      Damages were still left to be determined. On April 7, 2017, at the pretrial

conference, Ramos’s counsel moved to withdraw from the case. The district court

granted the motion, set a new trial date of May 8, and informed Ramos that the

court would not grant future continuances. Ramos’s new counsel entered his

appearance on April 18 and filed a motion for a trial continuance and a motion

under Fed. R. Civ. P. 60(b) to set aside the court’s summary judgment order on the

grounds that Ramos’s original counsel was negligent. The court denied both


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motions on May 1. On May 3, Ramos’s new counsel filed a motion to withdraw

due to Ramos’s inability to comply with the financial obligations of trial. The

court granted the motion and pushed back trial another week to May 15.

      At the one-day trial to determine damages, Ramos represented himself pro

se. At the close of the evidence, the district court granted Plaintiff’s oral motion

for judgment as a matter of law under Federal Rules of Civil Procedure 50. The

court entered final judgment in favor of Plaintiff.

      Ramos filed a timely appeal challenging the district court’s rulings on the

motion to dismiss for forum non conveniens, the motion for an extension of time to

respond to Plaintiff’s summary judgment motion, the Rule 60(b) motion, and the

motion for a trial continuance.

II.   STANDARD OF REVIEW

      We may reverse a district court’s forum non conveniens determination “only

when there has been a clear abuse of discretion.” SME Racks, Inc. v. Sistemas

Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100 (11th Cir. 2004) (quoting

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981)). “It is well settled that

abuse of discretion review is extremely limited and highly deferential.” Wilson v.

Island Seas Invs., Ltd., 590 F.3d 1264, 1268 (11th Cir. 2009) (internal quotation

marks omitted). We “must affirm unless we find that the district court has made a


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clear error of judgment, or has applied the wrong legal standard.” Aldana v. Del

Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1288 (11th Cir. 2009) (internal

quotation marks omitted). “Factual determinations are reviewed for clear error.”

Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011) (quoting Leon v.

Millon Air, Inc., 251 F.3d 1305, 1310 (11th Cir. 2001)).

       We also review for abuse of discretion the denial of a motion for an

extension of time to respond to a summary judgment motion, Barrett v. Walker

County School District, 872 F.3d 1209, 1230 (11th Cir. 2017), the denial of a Rule

60(b) motion, Toole v. Baxter Healthcare Corporation, 235 F.3d 1307, 1316 (11th

Cir. 2000), and the denial of a motion for a continuance, Rink v. Cheminova, Inc.,

400 F.3d 1286, 1296 (11th Cir. 2005).

III.   DISCUSSION

       A.    Motion to Dismiss For Forum Non Conveniens
       “To obtain dismissal for forum non conveniens, ‘[t]he moving party must

demonstrate that (1) an adequate alternative forum is available, (2) the public and

private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his

suit in the alternative forum without undue inconvenience or prejudice.’” GDG

Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024, 1028 (11th Cir. 2014)

(alteration in original) (quoting Leon, 251 F.3d at 1310–11). “A plaintiff’s choice



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of forum is entitled to deference, and there is a presumption in favor of a plaintiff’s

choice of forum, particularly where the plaintiffs are citizens of the United States.”

Wilson, 590 F.3d at 1269. But a plaintiff’s forum choice is not dispositive. Piper

Aircraft, 454 U.S. at 255 n.23. Thus, “[a] defendant invoking forum non

conveniens ‘bears a heavy burden in opposing the plaintiff’s chosen forum.’”

Wilson, 590 F.3d at 1269 (quoting Sinochem Int’l Co. Ltd. v. Malaysia Int’l

Shipping Corp., 549 U.S. 422, 430 (2007)). To rule for the defendant, the district

court must find “positive evidence of unusually extreme circumstances” and be

“thoroughly convinced that material injustice is manifest before exercising any

such discretion as may exist to deny a United States citizen access to the courts of

this country.” Aldana, 578 F.3d at 1293 (internal quotation marks omitted).

       The only analysis at issue here is the district court’s weighing of the private

and public interest factors.1 “[W]here the [district] court has considered all

relevant public and private interest factors, and where its balancing of these factors

is reasonable, its decision deserves substantial deference.” Piper Aircraft, 454

U.S. at 257. Conversely, “[t]he court abuses its discretion when it fails to balance

the relevant factors,” or if it “does not weigh the relative advantages of the


1
  Plaintiff and Ramos do not dispute that Brazil is an adequate alternative forum and that
Plaintiff can reinstate its suit there without inconvenience or prejudice.


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respective forums but considers only the disadvantages of one.” Wilson, 590 F.3d

at 1269 (quoting La Seguridad v. Transytur Line, 707 F.2d 1304, 1308 (11th Cir.

1983)).

       The district court did not abuse its discretion in denying Ramos’s motion.2

The private interest factors include:

       [T]he relative ease of access to sources of proof; availability of
       compulsory process for attendance of unwilling, and the cost of
       obtaining attendance of willing, witnesses; possibility of view of
       premises, if view would be appropriate to the action; and all other
       practical problems that make trial of a case easy, expeditious and
       inexpensive.
Tazoe, 631 F.3d at 1331 (alteration in original) (quoting Piper Aircraft, 454 U.S. at

241 n.6). Although many witnesses and documents were located in Brazil, many

were also located in the United States. Any Brazilian documents and witnesses

under Plaintiff’s control were available to Ramos through standard discovery

procedures, and all other evidence located in Brazil was available through

compulsory processes under the Inter-American Convention on Letters Rogatory,

Jan. 30, 1975, S. Treaty Doc. No. 27, 1438 U.N.T.S. 288, and the Brazilian Code


2
  For this analysis we look only at the amended complaint, because the amended complaint
“superseded the former pleadings,” meaning that “the original pleadings were abandoned by the
amendment” and became “a legal nullity.” See Hoefling v. City of Miami, 811 F.3d 1271, 1277
(11th Cir. 2016) (alterations adopted) (internal quotation marks omitted). Indeed, Ramos in his
briefing before the district court focused on only the allegations of the amended complaint in his
motion to dismiss.


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of Civil Procedure. The district court took all of this into consideration—including

the costs to Ramos and potential translation burdens—and reasonably concluded

that some factors favored a Brazilian forum, but more favored Plaintiff’s choice.

Although Ramos disagrees with the district court’s analysis—namely, Ramos

contends that the district court did not give sufficient weight to the costs Ramos

faced, gave too much weight to Plaintiff’s forum choice,3 and did not adequately

explain how much weight it gave to each of the factors—the court conducted the

proper analysis and reached a reasonable conclusion based on the facts before it.

       So too with the public factors. Those factors include:

       [T]he administrative difficulties flowing from court congestion; the
       local interest in having localized controversies decided at home; the
       interest in having the trial of a diversity case in a forum that is at
       home with the law that must govern the action; the avoidance of
       unnecessary problems in conflict of laws, or in the application of
       foreign law; and the unfairness of burdening citizens in an unrelated
       forum with jury duty.
Tazoe, 631 F.3d at 1333 (alteration in original) (internal quotation marks omitted)

(quoting Piper Aircraft, 454 U.S. at 241 n.6). The district court concluded that the
3
  Ramos argues that Plaintiff should not benefit from the strong presumption that U.S. citizens
receive when choosing a United States forum because Plaintiff is part of a multinational entity
and regularly conducts business abroad. See Reid-Walen v. Hansen, 933 F.2d 1390, 1395 (8th
Cir. 1991) (observing that “[w]hen an American corporation doing extensive foreign business
brings an action for injury occurring in a foreign country, many courts have partially discounted
the plaintiff’s United States citizenship”). Ramos acknowledges, however, that this Court has no
binding precedent that establishes that American corporations doing business internationally
receive a weaker presumption. And we see no reason to address whether we agree with such a
principle, given that it would not alter the outcome here.


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public interest factors weighed strongly in favor of Plaintiff’s forum choice. The

court found that the United States had a strong local interest because Ramos

orchestrated the fraud scheme from his office in Fort Lauderdale and the injury to

Plaintiff was suffered in the United States. For the same reasons, the court

concluded that, although the scheme involved some Brazilian actors and

transactions, a local jury would not be unfairly burdened by deciding the case.

Further, the court identified that Plaintiff’s claims arose under Florida law and that

Brazilian law and customs were largely inapplicable, so it made more sense for a

United States forum to handle the case rather than a Brazilian forum unfamiliar

with the governing Florida law. Ramos’s only quibble with the district court’s

analysis is that he contends that the controversy at the heart of this lawsuit lies in

Brazil, not the United States, so a Brazilian court has a stronger local interest in

deciding the case. But, again, the district court recognized that some conduct

occurred in Brazil, but reasonably concluded that the United States had a stronger

local interest, and that the other public interest factors weighed in favor of the

United States as well.

      In sum, the district court considered the relevant public and private interest

factors and balanced those factors reasonably. The court did not abuse its

discretion in denying Ramos’s motion to dismiss for forum non conveniens.


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      B.     Motion For An Extension Of Time To File A Reply To Plaintiff’s
             Summary Judgment Motion
      The district court also did not abuse its discretion when it denied Ramos’s

untimely motion for an extension of time to file its reply to Plaintiff’s motion for

summary judgment. “District courts have unquestionable authority to control their

own dockets,” including “broad discretion in deciding how to best to manage the

cases before them.” Smith v. Psychiatric Solutions, Inc., 750 F.3d 1253, 1262

(11th Cir. 2014) (internal quotation marks omitted); see also Young v. City of Palm

Bay, 358 F.3d 859, 864 (11th Cir. 2004) (“A district court must be able to exercise

its managerial power to maintain control over its docket. . . . to administer effective

justice and prevent congestion.”). Accordingly, “we have often held that a district

court’s decision to hold litigants to the clear terms of its scheduling orders is not an

abuse of discretion.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d

1292, 1307 (11th Cir. 2011). Here, the district court denied Ramos’s motion for an

extension because it was filed twenty-five days after the scheduling order deadline

for Ramos’s reply. The court observed that Ramos’s only explanation for the

delay and the need for an extension were Ramos’s “very limited resources and a

language barrier”—issues that, if true, should have become apparent much earlier,

considering that the same counsel had worked with Ramos for over a year and had

filed major pleadings (including two motions to dismiss for forum non conveniens,

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a declaration from Ramos, and an answer to Plaintiff’s amended complaint) long

before the reply deadline. On appeal, Ramos repeats the same excuse and

emphasizes the harm from not granting the extension and allowing Ramos to file a

reply. But the facts make plain that the district court did not abuse its discretion by

denying Ramos’s untimely motion and holding him to the scheduling order.

       C.     Rule 60(b) Motion
       Ramos also argues that the district court abused its discretion when it denied

Ramos’s Rule 60(b) motion for relief from the court’s order granting partial

summary judgment to Plaintiff. To show that the district court abused its

discretion, Ramos “must demonstrate a justification so compelling that the court

was required to vacate its order.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111,

1115 (11th Cir. 1993) (quoting Solaroll Shade and Shutter Corp. v. Bio–Energy

Sys., Inc., 803 F.2d 1130, 1132 (11th Cir. 1986)).

       Assuming that Ramos could properly seek relief from the district court’s

interlocutory summary judgment order under Rule 60(b),4 the district court did not

4
  We note that it is not clear that a party can obtain relief from an interlocutory summary
judgment order under Rule 60(b), because Rule 60(b) authorizes a district court to grant relief
from “a final judgment, order, or proceeding.” See Kapco Mfg. Co., Inc. v. C & O Enters., Inc.,
773 F.2d 151, 154 (7th Cir. 1985) (explaining “why Rule 60(b) must be limited to review of
orders that are independently ‘final decisions’ under 28 U.S.C. § 1291”); see also Mullins v.
Nickel Plate Mining Co., Inc., 691 F.2d 971, 974 (11th Cir. 1982) (“Rule 60(b) applies only to
final judgments.”). Because the parties do not raise this issue in their briefing and it is
unnecessary for the resolution of this appeal, we do not address it further.


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abuse its discretion by denying such relief. Ramos argues that the district court

should have granted relief under Rule 60(b)(1)5 because Ramos’s counsel was

negligent about informing Ramos of the summary judgment deadline, among other

things, while Ramos himself diligently monitored his case. But Ramos’s only

explanation to the district court for why his counsel failed to file a timely reply was

that counsel “chose to ignore the deadline to respond to the Motion for Summary

Judgment” and that the motion for an extension was untimely “for reasons that

remain unexplained.” That justification is not so compelling as to require reversal.

See Solaroll Shade, 803 F.2d at 1132 (“[A]n attorney’s negligent failure to respond

to a motion does not constitute excusable neglect.”).

       Ramos also argues that his counsel’s negligence justifies relief under Rule

60(b)(6).6 But attorney negligence is a grounds for relief under Rule 60(b)(1), not

(b)(6). Because (b)(1) and (b)(6) are mutually exclusive, the district court could

not grant relief for attorney negligence under (b)(6), see Cavaliere, 996 F.2d at

1115; Solaroll Shade, 803 F.2d at 1133, and did not abuse its discretion by

declining to do so.


5
  Rule 60(b)(1) authorizes a district court to grant relief for “mistake, inadvertence, surprise, or
excusable neglect.”
6
  Rule 60(b)(6) is the residual subsection and grants relief for “any other reason that justifies
relief.”


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      D.     Motion For A Trial Continuance
      Finally, Ramos asserts that the district court should have granted his motion

for a trial continuance. “The denial of a request for continuance does not constitute

an abuse of discretion unless it is arbitrary and unreasonable and severely

prejudices the moving party.” SEC v. Levin, 849 F.3d 995, 1001 (11th Cir. 2017).

We consider four factors in this analysis: (1) “the extent of appellant’s diligence in

his [or her] efforts to ready his [or her] defense prior to the date set for hearing,”

(2) “how likely it is that the need for a continuance could have been met if the

continuance had been granted,” (3) “the extent to which granting the continuance

would have inconvenienced the court and the opposing party,” and (4) “the extent

to which the appellant might have suffered harm as a result of the district court’s

denial.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1351

(11th Cir. 2003) (alterations in original) (quoting Hashwani v. Barbar, 822 F.2d

1038, 1040 (11th Cir. 1987)).

      The district court did not abuse its discretion in denying Ramos’s motion.

Ramos contends that granting the continuance would have inconvenienced Plaintiff

and the district court little and that Ramos was heavily prejudiced because it

resulted in his counsel withdrawing. Yet the district court informed Ramos at the

pretrial conference that it would not grant a continuance if Ramos chose to obtain



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new counsel a month before trial. Nevertheless, the court pushed back the trial

when Ramos’s original counsel withdrew and did so again when his new counsel

withdrew. Further, the record does not establish that Ramos’s counsel withdrew

because of the denial of the continuance. According to the withdrawal motion,

Ramos’s counsel withdrew because Ramos had been “unable to fully comply with

[his financial] obligations thereby making it impossible for the undersigned

counsel to continue to effectively represent [Ramos],” so “continued representation

. . . present[ed] an unreasonable financial burden” for counsel. The motion does

not raise a lack of time or the district court’s denial of the continuance as a reason

for counsel’s withdrawal, just financial hardship in preparing for and attending

trial. Thus, we cannot conclude that denial of the continuance prejudiced Ramos.

For the same reason, because Ramos’s counsel never cited the need for a

continuance or a lack of time as a reason prompting withdrawal, Ramos has failed

to show that granting the motion would have solved Ramos’s alleged need for a

continuance by preventing his counsel from withdrawing. Further, there is no

evidence that Ramos had been diligent preparing for trial. At the pretrial

conference (with Ramos’s original counsel), Ramos submitted no exhibits or

witnesses for the joint pretrial statement. And Ramos’s motion for a continuance

admitted, while laying the blame on Ramos’s original counsel, that Ramos had


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performed no discovery since the lawsuit had begun nearly two years earlier.

Taking all of this into account, we hold that the district court did not abuse its

discretion in denying Ramos’s motion for a continuance.

      AFFIRMED.




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