             Case: 17-10368    Date Filed: 11/21/2017   Page: 1 of 19


                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-10368
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket Nos. 3:12-cv-00288-MCR-CJK,
                           5:13-cv-00046-RH-EMT

3:12-cv-00288


EARLE YAFFA,
Executor of the will of Joseph Flom,
RONALD J. WEISS,
Executor of the will of Joseph Flom,
JASON FLOM,
ELIZABETH YATES,

                                                    Plaintiffs-Counter Defendants-
                                                      Cross Defendants-Appellees,

                                       versus

DEANNA L. WEIDNER,

                                                        Interested Party-Appellant,

HERBERT L. GRAHAM,

                                            Intervenor Plaintiff-Counter Defendant,
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SUNSOUTH BANK,

                             Defendant-Intervenor Defendant-Counter Claimant,

RONALD E. GILLEY, et al.,

                             Defendants-Cross Defendants-Counter Defendants,

ALABAMA STATE BANKING DEPARTMENT,

                                                          Intervenor.
__________________________________________________________________


5:13-cv-00046

SUNSOUTH BANK,

                                                      Plaintiff-Counter Defendant,

                                   versus

NASHYORK LLC, et al.,

                                                Defendants-Counter Claimants.

                        ________________________

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

                             (November 21, 2017)

Before HULL, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:




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       Deanna L. Weidner, an attorney representing the defendant and counter-

claimant SunSouth Bank (“SunSouth”) in this action, appeals from a sanctions

order that imposed a “fine” of $5,000 on Weidner personally. Weidner asserts that

the sanctions were entered without adequate notice or a sufficient factual basis,

were an abuse of the district court’s discretion, and thus violated due process.

After review, we affirm.

                                 I.      BACKGROUND

A.     The Underlying Litigation

       In this action, the plaintiffs, who were investors in real estate, sought

rescission of their various loan guaranties and assignment agreements (collectively,

the “Agreements”) with the defendant, SunSouth. The plaintiffs alleged, in sum,

that the Agreements were fraudulently induced as part of a scheme by SunSouth

and other defendants to defraud investors in real estate developments in Florida.

Against the several defendants, the plaintiffs asserted claims under Florida and

federal law, including claims for fraud and for violations of the Racketeer

Influenced Corrupt Organization (“RICO”) statute, 18 U.S.C. § 1961, et seq.

Defendant SunSouth asserted counterclaims, alleging that the Agreements were

valid and that the plaintiffs were liable thereunder. 1


       1
      In a separate action, SunSouth sought to enforce a promissory note against a debtor,
NashYork, LLC (“NashYork”), and four guarantors. The plaintiffs in the instant action were
members of NashYork, and some of their allegations concerned the defendants’ relationship with
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       After a three-week trial in February and March of 2016, the jury returned a

verdict in favor of the plaintiffs on some of their claims, including the fraud and

RICO claims. On March 21, 2016, the district court entered an order “declar[ing]

the instruments void and rescinded for purposes of the fraud claims and grant[ing]

equitable injunctive relief precluding enforcement of the instruments for purposes

of the RICO claims.” That same day, the district court entered a declaratory

judgment rescinding the Agreements and enjoining defendant SunSouth from

enforcing them. 2

       Defendant SunSouth appealed. However, that appeal was voluntarily

dismissed in May 2017, after the parties settled the RICO claims. This Court

directed the district court, on remand, to vacate only the RICO portions of its

original judgment, and to enter an amended judgment to reflect the parties’

settlement of the RICO claims. On June 15, 2017, the district court entered an

order and amended judgment, which set forth that the plaintiffs took nothing on the

RICO claims. In all other respects, the district court’s original judgment of March

21, 2016 remained in effect. Accordingly, the plaintiffs prevailed in the action,

and the Agreements remained voided and rescinded for purposes of the fraud

claims.


NashYork. Due to the substantial overlap between them, the two cases were consolidated for
discovery and trial in the Northern District of Florida. NashYork is not involved in this appeal.
        2
          The district court also entered judgment in favor of NashYork on all of SunSouth’s
claims in the consolidated case.
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B.     The Sanctions Order

       While the merits appeal was pending, post-judgment litigation on collateral

matters continued in the district court. This appeal involves only the district

court’s October 31, 2016 order imposing sanctions against SunSouth and its

attorney, Weidner. In that order, the district court sua sponte imposed a “fine” of

$5,000 on counsel Weidner personally, pursuant to Federal Rule of Civil Procedure

16(f)(1)(C) “and the court’s inherent power to manage its cases and sanction bad

faith conduct.” 3 The fine was imposed for Weidner’s “pattern of delay,

noncompliance, and total disregard of the court’s pretrial orders and deadlines.”

The district court’s 17-page order detailed the pattern of missed deadlines,

warnings, and failures to comply that led to the fine. We thus first review the

specific conduct and warnings leading to the order.

       1.     The Conduct and Warnings Leading to the Sanctions Order

       Throughout the district court proceedings, Weidner was lead or co-lead

counsel for defendant SunSouth, together with co-counsel David B. Anderson. In

July 2015, the district court entered two orders setting the pretrial and trial

schedule. The district court set trial to commence on February 22, 2016, with a

pretrial conference scheduled for February 12, 2016. No later than December 30,

       3
       The district court also imposed sanctions separately on SunSouth. As noted below,
SunSouth has not appealed from the order.
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2015, counsel for both parties were to meet and confer, for the purpose of

preparing a pretrial stipulation and related papers. Those submissions were to be

filed by January 29, 2016, a deadline later extended to February 10. The pretrial

stipulation was to be signed by counsel for all parties, and was to contain, among

other things, a list of all exhibits and witnesses to be offered at trial, together with

any objections thereto.

      Neither party filed a pretrial stipulation or any related paper by the February

10 deadline. However, a few hours after midnight in the early morning February

11, the plaintiffs filed their pre-trial stipulation, without the signature of defendant

SunSouth’s attorneys and without any witness or exhibit list from SunSouth. In a

footnote, the plaintiffs indicated that, “Based on delays in receiving a final exhibit

list from Defendant, Plaintiffs have not yet been able to determine their potential

objections to the exhibits identified by Defendant.”

      Later on February 11, the district court issued an order for defendant

SunSouth to show cause, at the pretrial conference the next day, why it should not

be sanctioned for failing to comply with the scheduling orders.

      The pretrial conference took place on February 12. Weidner and Anderson

appeared on behalf of defendant SunSouth. The minutes of the conference reflect

that the district court heard approximately 17 minutes of argument on the show

cause order, did not impose sanctions, and directed SunSouth to file its pretrial

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stipulation by midnight that night. Although no transcript is available, the district

court explained in its later sanctions order that it “reluctantly” declined to enter

sanctions at the pretrial conference, after finding both parties at fault for the

breakdown of the pretrial stipulation process. The district court “sternly warned

[the parties] on the record that the court’s rules and orders would be enforced by

the imposition of sanctions from that date forward.” Among other things, the

district court informed the parties that “shenanigans will be dealt with harshly by

me.”

       Just after midnight that night, defense counsel Weidner filed two documents:

(1) a document listing defendant SunSouth’s objections to the deposition of one of

the plaintiffs’ experts; and (2) a document that purported to be objections to the

plaintiffs’ exhibits, but was in fact just a copy of the plaintiffs’ exhibit list.

Weidner provided no other part of SunSouth’s required pretrial submissions.

       On February 15, the plaintiffs filed a motion for clarification, asking the

district court to address the effect of SunSouth’s omissions. In their motion, the

plaintiffs indicated that defense counsel Weidner had emailed to them SunSouth’s

objections to the plaintiffs’ exhibit list, in the early afternoon of Saturday, February

13. The plaintiffs attached these objections as an exhibit to their motion for

clarification. Weidner never filed the objections with the court, however, nor did

she respond to the plaintiffs’ motion. That same day, the plaintiffs filed a list of

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their objections to defendant SunSouth’s exhibit list. SunSouth’s exhibit list, like

its objections to the plaintiffs’ exhibits, had not previously been filed with the

district court.

       On February 16, 2016, the district court entered an order addressing the

motion for clarification. The district court found that defendant SunSouth had

continued to fail to comply with the district court’s requirements, without

explanation. Accordingly, the district court stated that it had “no choice but to

impose sanctions.” The district court declared that SunSouth had (1) waived its

right to submit objections to plaintiffs’ exhibit and witness lists, except for the one

deposition that was filed just after midnight on February 13, (2) waived its right to

submit its own witness and exhibit lists, and (3) waived its right to submit

proposed jury instructions or a proposed verdict form. The district court clarified

that it was sanctioning SunSouth “because of repeated noncompliance, a late filing

that did not comply with the Court’s Order substantively, and the fact that

SunSouth still has not complied or offered any explanation for its failure to do so.”

       The trial began on February 22, 2016. On the morning of the first day, the

district court addressed defense counsel Weidner’s conduct on the record. The

district court reminded Weidner that she and her co-counsel had already been

“excused” at the pretrial conference from sanctions previously imposed. The

district court then recounted Weidner’s continued failure to file witness or exhibit

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lists or objections to the plaintiffs’ lists, and stated: “I have given you, Ms.

Weidner, multiple opportunities to comply with my orders, and you haven’t done

that.” The district court continued:

             You can’t waltz in here today and expect me to excuse
             the failures to comply with my order. I mean, I’m not
             going to condone that, Ms. Weidner. I mean, there are
             sanctions that go along with that sort of thing, even if it’s
             very harsh to your client, which I don’t want to happen. I
             mean, your client deserves better representation, frankly.

      The district court informed Weidner that it was going to enter monetary

sanctions against her. Weidner replied, “I think that’s the appropriate sanction.”

She continued:

             I was just going to point out that under Rule 16, that the
             sanction really is a monetary sanction against me, and it
             is – that is the proper sanction. I have a United States
             Supreme Court case that says it is solely a monetary
             sanction that should be entered against an individual for
             failing to comply with the pretrial order. And so it is –
             mea culpa, it is mine – it should be my sanction.

      The district court clarified later that its imposition of monetary sanctions on

Weidner constituted a sua sponte reconsideration of its February 16 order striking

SunSouth’s exhibit and witness lists. The district court explained, addressing

Weidner, that “I did not want your clients so prejudiced by your inability to follow

the Court’s order.” The district court also stated that it decided to fine Weidner “as

opposed to gutting her client’s case.”



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      Through the first week of trial, the district court gave Weidner additional

extensions of time to provide her defense exhibits and exhibit list to the plaintiffs.

Problems persisted, however, and the defense exhibits and list were not completed.

As the second week of trial began, and the problems with the defense exhibits still

had not been rectified, the district court directed plaintiffs’ counsel to organize

defendant SunSouth’s exhibits and to draft SunSouth’s exhibit lists. When

SunSouth objected, the district court responded:

             There are rules, and there are reasons for the rules and
             there are reasons for the deadlines, and you all have
             completely ignored those rules and deadlines. I mean, I
             have bent over backwards to try to help SunSouth, but
             I’m done. These rules and these deadlines have to have
             meaning.

      2.     The Rationale for the Monetary Sanction

      In light of this conduct, the district court issued the sanctions order on

October 31, 2016. In the order, the district court recited the above facts in

considerable detail. The district court then found that because of Weidner’s

conduct, (1) the work involved in the case was multiplied, (2) the district court was

“severely impacted” in its ability to evaluate objections and legal arguments during

trial, (3) the jury was often kept waiting while the district court addressed issues

that should have been raised prior to trial, and (4) the plaintiffs’ trial preparation

was impeded. The district court also noted that when given opportunities to

explain her conduct, Weidner “inevitably blamed opposing counsel.” The district
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court concluded that, “[r]egardless of whether these problems were born of

incompetence or impertinence . . . Ms. Weidner’s repeated pattern of conduct rose

to willful disregard of the court’s deadlines and orders tantamount to bad faith,

which adversely impacted the trial.”

      3      The Sanctions

      The district court imposed sanctions separately on SunSouth and on

Weidner.

      As to SunSouth, the district court directed the bank to pay, pursuant to Rule

16(f)(2), the costs and attorneys’ fees “reasonably incurred by Plaintiffs’ counsel in

attempting to decipher and cross reference SunSouth’s exhibit list . . . and for time

spent preparing SunSouth’s exhibit list and organizing SunSouth’s exhibit

binders.” The district court stated that the specific amount of fees would be

entered by separate order, after the parties had the opportunity to provide an

accounting and any objections thereto. The parties later agreed on the amount of

fees for which SunSouth was responsible, and the district court accepted their

accounting. The sanctions against SunSouth are therefore resolved and are not part

of this appeal.

      Separately, the district court imposed a “fine” of $5,000 on Weidner

personally, to be paid directly to the district court. The district court found that no

lesser sanction would adequately punish Weidner’s conduct.

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        4.    Weidner’s Appeal

        Weidner now brings this appeal. She argues that the sanctions order

deprived her of due process and an opportunity to be heard, and that the order

constituted an abuse of discretion because it was not based upon sufficient findings

and explanation. SunSouth has not appealed.

                                 II.   DISCUSSION

        The district court provided alternate bases for its sanctions order: namely,

Rule 16(f), and its inherent authority to manage its cases. We address each basis in

turn.

A.      Rule 16(f)

        We review a district court’s decision to impose or not impose sanctions

under Rule 16(f) for abuse of discretion. United States v. Samaniego, 345 F.3d

1280, 1284 (11th Cir. 2003). We review de novo the argument that the sanctions

imposed by a district court violated due process. Serra Chevrolet, Inc. v. General

Motors Corp., 446 F.3d 1137, 1147 (11th Cir. 2006).

        Rule 16(f) permits a district court to issue “any just orders” if, among other

things, a party fails to obey a scheduling or other pretrial order. Fed. R. Civ. P.

16(f)(1)(C). The rule also requires a district court to order a party, its attorney, or

both to pay the reasonable expenses incurred due to any noncompliance with Rule

16 generally. Fed. R. Civ. P. 16(f)(2).

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      The rule was “designed to punish lawyers and parties for conduct which

unreasonably delays or otherwise interferes with the expeditious management of

trial preparation.” Samaniego, 345 F.3d at 1284 (quoting Goforth v. Owens, 766

F.2d 1533, 1535 (11th Cir. 1985)). District courts have discretion to decide if there

is a pattern of delay or a deliberate refusal to comply with court orders that justifies

a sanction. Id. In addition, a district court need not make a finding of bad faith

before doing so. Giovanno v. Fabec, 804 F.3d 1361, 1366 n.5 (11th Cir. 2015). In

Giovanno, for example, we concluded that a district court had “ample reason” to

enter a Rule 16(f) default judgment against a defendant who failed to contact his

attorney or otherwise participate in the case for over a year, and who failed to

provide any explanation for his absence, even though the district court made no

express finding of bad faith. Id. at 1365-66.

      Nevertheless, a district court’s broad discretion to impose sanctions or

otherwise manage its affairs is subject to “the most fundamental safeguard of

fairness,” due process. See Serra, 446 F.3d at 1151 (discussing Rule 37 sanctions).

      Weidner has not shown that the district court abused its discretion in

imposing the $5,000 fine. The sanctions order detailed a course of conduct,

spanning several months, in which Weidner repeatedly failed to comply with court

orders and deadlines. The district court’s account of events is supported by the

record. Although Weidner argued to the district court, and now argues on appeal,

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that her missed deadlines and other lapses were the fault of the plaintiffs or of the

district court, it was not an abuse of discretion for the district court to find, based

on this record, that Weidner exhibited a willful disregard of deadlines such that a

monetary sanction was appropriate. Samaniego, 345 F.3d at 1284; see Giovanno,

804 F.3d at 1365.

      It is also worth noting that the sanctions order came only after the district

court sua sponte reconsidered its initial order barring SunSouth from presenting

witnesses or exhibits, objecting to plaintiffs’ exhibits, or submitting proposed jury

instructions. In other words, the district court, after reflection, decided against

“gutting” SunSouth’s defense case due to Weidner’s conduct. This supports the

conclusion that the sanctions order was carefully considered, tailored to Weidner’s

conduct, and not outside the district court’s discretion.

      Nor was Weidner deprived of due process. To the contrary, the district court

provided ample and repeated warnings that sanctions might be coming, and also

provided Weidner with several opportunities to be heard. Before issuing the

sanctions order, the district court issued a written order to show cause why

sanctions should not be imposed, heard argument on the show-cause order, warned

the parties that further noncompliance with court orders would result in sanctions,

and gave Weidner several more chances to explain herself at trial. Moreover,

during one of her opportunities to be heard, Weidner acknowledged her own “mea

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culpa” and asserted that a monetary sanction against her would be appropriate. It

is difficult to see how Weidner could be deprived of an opportunity to be heard on

the issue, when she earlier agreed on the record with the district court’s course of

action.

      Our decisions in Serra Chevrolet and Carlucci v. Piper Aircraft Corp., Inc.,

775 F.2d 1440 (11th Cir. 1985) do not help Weidner. In Carlucci, we reversed and

remanded a district court’s imposition of a $10,000 sanction under Rule 37(b).

Carlucci, 775 F.2d at 1453-54. Rule 37(b) provides for the payment of “reasonable

expenses, including attorney’s fees, caused by the failure” of an attorney or party

to cooperate in discovery. Fed. R. Civ. P. 37(b)(2)(C). The $10,000 award in

Carlucci purportedly represented those fees and expenses. Id. at 1446, 1453-54.

The district court, however, did not explain how it had arrived at that amount,

beyond finding that the attorney must have been paid a “considerable” fee for his

representation. Id. at 1446. In reversing and remanding, this Court made clear that

its sole basis for doing so was the district court’s failure adequately to explain the

sum of $10,000. Id. at 1453-54.

      Rule 16(f), the sanctions rule at issue here, also requires that a district court

assess reasonable expenses and attorney’s fees arising from any noncompliance

with Rule 16’s requirements for pretrial conference. Fed. R. Civ. P. 16(f)(2). But

the district court complied with that portion of the rule, when it assessed

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reasonable fees and expenses against SunSouth and directed the parties to come

together on the amount of those fees and expenses. The $5,000 fine imposed on

Weidner was a punitive fine imposed in addition to reasonable fees and expenses,

issued under the district court’s authority to enter “any just orders” when a party or

attorney fails to obey a scheduling or other pretrial order. Fed. R. Civ. P. 16(f)(1).

The district court found that the sum of $5,000 – a relatively modest amount – was

the minimum amount that would punish Weidner’s disregard of the pretrial

process. The rule does not require a more particular accounting.

      In Serra Chevrolet, this Court vacated and remanded a discovery sanctions

order against defendant General Motors Corporation (“GM”) that (1) fined GM

$700,000, and (2) struck certain affirmative defenses. Serra Chevrolet, Inc., 446

F.3d at 1152-53. As to the fine, the district court had originally fined GM $50,000

for each day that it was out of compliance with discovery orders, but later, after

finding that GM had been noncompliant for 98 days, lowered the fine from

$4,900,000 (that is, $50,000 x 98) to $700,000. Id. at 1144, 1151-52. The district

court provided no rationale, either for the amount of its $50,000-per-day fine, or

for the later reduction. Id. As to the affirmative defenses, the district court struck

defenses concerning the preclusive effect of earlier litigation in state court, even

though the sanctioned conduct in discovery had nothing to do with those defenses.

Id. at 1152. Because there was no rationale for the amount of the fine, and no

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connection between the stricken defenses and the sanctioned conduct, this Court

concluded that the sanctions violated GM’s due process rights. Id.

      Contrary to Weidner’s arguments, Serra Chevrolet does not stand for the

proposition that any monetary sanction, in order to comport with due process, must

be accompanied by a detailed accounting of how the district court arrived at that

precise dollar amount. Rather, it requires that a sanction have some rationale and

some connection to the sanctioned conduct. Here, the district court thoroughly

explained its rationale for sanctioning Weidner, including its reasoning for limiting

the sanction to a monetary fine on Weidner personally, rather than punishing her

client as well. This sanctions order does not run afoul of due process under Serra

Chevrolet.

B.    Inherent Authority

      We review a court’s exercise of its inherent power to sanction counsel for

abuse of discretion. Kornhauser v. Comm’r of Soc. Sec., 685 F.3d 1254, 1258

(11th Cir. 2012). This means that we will not disturb a district court unless we find

a clear error of judgment, or that the district court applied the wrong legal standard.

Id.

      Courts of justice are vested with certain implied powers to “manage their

own affairs so as to achieve the orderly and expeditious disposition of cases.”

Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 2132 (1991)

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(quotation omitted). One such power is the ability to fashion an appropriate

sanction for conduct which abuses the judicial process. Id. at 44-45, 111 S. Ct. at

2132-33.

      A district court’s inherent power should be exercised with caution.

Kornhauser, 685 F.3d at 1257. In addition, unlike sanctions under Rule 16(f), the

exercise of a district court’s inherent power requires a finding of bad faith. Id. A

district court also must comply with the mandates of due process, both in

determining that the requisite bad faith exists and in assessing any fees. Id. When

the individual being sanctioned is an attorney before the district court, due process

requires that the attorney be given (1) fair notice that her conduct may warrant

sanctions and the reasons why, and (2) an opportunity to respond, orally or in

writing, to the invocation of sanctions. Id.

      Because the boundaries of a district court’s power to sanction under Rule

16(f) are very similar to the boundaries of a district court’s inherent power, a

sanction that is permissible under the former is likely permissible under the latter.

The only additional inquiries we must make here are, first, whether the district

court made the requisite finding of bad faith, and second, if so, whether that

finding satisfied due process. Id.

      The district court expressly found that “Ms. Weidner’s repeated pattern of

conduct rose to willful disregard of the court’s deadlines and orders tantamount to

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bad faith.” Although the district court expressed ambivalence as to whether

Weidner’s conduct arose from “incompetence or impertinence,” either an

incompetent lawyer or an impertinent lawyer may act in bad faith if she willfully

disregards court orders. The district court here found that Weidner did exactly

that. That finding was not an abuse of discretion based on the record, and, as

discussed above, the district court allowed Weidner ample opportunity to explain

herself. We find no due process violation.

                               III. CONCLUSION

      Based on the foregoing reasons, we conclude that the district court did not

abuse its discretion or deprive Weidner of due process in imposing a sanction of

$5,000. We therefore affirm the sanctions order.

      AFFIRMED.




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