USCA11 Case: 21-13475 Date Filed: 05/26/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13475
Non-Argument Calendar
____________________
GREGORY MAKOZY,
Plaintiff-Appellant,
versus
CHARLES ZIMMERER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-22019-RLR
____________________
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2 Opinion of the Court 21-13475
Before JILL PRYOR, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Plaintiff Gregory Makozy, proceeding pro se, appeals the
district court’s order dismissing his lawsuit after he failed to comply
with court orders. He argues that the district court erred in dismiss-
ing the lawsuit and also that the district court judge should have
recused herself. After careful consideration, we affirm.
I.
This is the fourth case in which Makozy has brought claims
against Charles Zimmerer, his former bankruptcy attorney. See
Makozy v. Internal Revenue Serv. (Makozy I), No. 2:18-cv-14050,
2018 WL 4926503 (S.D. Fla. Sept. 17, 2018); Makozy v. Internal
Revenue Serv. (Makozy II), No. 2:18-cv-14404,
2018 WL 6978630
(S.D. Fla. Dec. 13, 2018); Makozy v. United States (Makozy III), No.
2:19-cv-14412,
2020 WL 2084850 (S.D. Fla. Apr. 30, 2020). In each
of the earlier lawsuits, the district court concluded that it lacked
subject matter jurisdiction over the state law claims against Zim-
merer because Makozy alleged that both he and Zimmerer were
citizens of the same state; thus, there was no diversity jurisdiction.
Makozy appealed the dismissal of Makozy III, but we affirmed, ex-
plaining that “[b]ecause the facts alleged in Makozy’s complaint did
not establish diversity of citizenship between the parties, the dis-
trict court did not err in dismissing his state-law claims against
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21-13475 Opinion of the Court 3
Zimmerer for lack of jurisdiction.” Makozy v. Zimmerer,
850 F. App’x 722, 724 (11th Cir. 2021) (unpublished).
Several weeks after our opinion affirming the dismissal in
Makozy III issued, Makozy filed this action, again substantively al-
leging that Zimmerer was liable for legal malpractice under state
law. This time, Makozy’s complaint alleged there was diversity of
citizenship because he was “domiciled” in Pennsylvania and Zim-
merer resided in Florida. Doc. 1 at 1. 1 In this complaint, Makozy
listed a Pennsylvania address. But in a draft summons he submitted
to the clerk of court, he provided a Florida address.
This action was assigned to the same district court judge
who dismissed the complaints in Makozy I and Makozy III.2 The
district court sua sponte reviewed whether there was subject mat-
ter jurisdiction. Although Makozy alleged in his complaint that he
was domiciled in Pennsylvania, the court noted that he was still
using a Florida address and had previously represented that he was
a Florida citizen. To determine Makozy’s citizenship and decide
whether diversity jurisdiction existed, the court directed him to file
“an affidavit, sworn under penalty of perjury,” identifying his state
of citizenship; explaining why his citizenship recently changed; and
addressing why, if he was a citizen of Pennsylvania, he was still us-
ing an address in Florida. Doc. 13 at 1. The court warned Makozy
1 “Doc.” numbers are the district court's docket entries.
2 Makozy II was assigned to a different district court judge.
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4 Opinion of the Court 21-13475
that if he failed to comply with the order, it “may dismiss the . . .
case without prejudice due to lack of prosecution.”
Id.
Makozy submitted a one-page response consisting of two
sentences. In the first sentence, he stated that he “maintains 2 resi-
dences.” Doc. 14 at 1. In the second sentence, he requested that the
“court change his address back to” his Pennsylvania address.
Id.
The response was not sworn under penalty of perjury, did not iden-
tify his state of citizenship, and did not address why his citizenship
had recently changed.
The district court found the response deficient, saying it did
“not address the [c]ourt’s questions and is not an affidavit.” Doc.
15. The court gave Makozy “one final chance to fully comply” with
its earlier order.
Id.
Makozy submitted a new response, stating that he resided in
both Florida and Pennsylvania and did not know how to respond
to the court’s request. Again, the response was not a sworn state-
ment made under penalty of perjury.
The court dismissed the case without prejudice. It explained
that it had an that independent obligation to determine whether
subject matter jurisdiction existed and had requested information
from Makozy to determine whether he was a citizen of Pennsylva-
nia or Florida. The court found that Makozy failed to comply with
its orders because he failed to file an affidavit addressing the court’s
questions. It dismissed the case without prejudice, saying
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21-13475 Opinion of the Court 5
“[n]othing in this Order shall preclude [Makozy] from initiating a
new case.” Doc. 18 at 2.
Makozy then filed a motion to recuse. He argued that the
district court judge was “bias[ed]” against him because he had two
addresses. Doc. 19 at 1. The district court denied the motion to
recuse, explaining that the proper procedure for a party to chal-
lenge an adverse ruling was to file an appeal, not a motion for
recusal.
Makozy then filed a motion requesting that the court assign
his case to another judge in the Southern District of Florida or
transfer the case to the Western District of Pennsylvania. The dis-
trict court denied the motion. To the extent Makozy sought review
of the court’s orders by another judge, the court explained that the
proper procedure was for him to file an appeal. The court also
stated that it could not transfer the case to another district because
“there is no open case to transfer, as this case has been dismissed.”
Doc. 23.
This is Makozy’s appeal.
II.
We review for abuse of discretion a district court’s decision
to dismiss a case for failure to comply with a court order. See Foudy
v. Indian River Cnty. Sheriff’s Off.,
845 F.3d 1117, 1122 (11th Cir.
2017). A district court judge’s decision not to recuse herself is like-
wise reviewed under an abuse-of-discretion standard. Jenkins v.
Anton,
922 F.3d 1257, 1271 (11th Cir. 2019).
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6 Opinion of the Court 21-13475
“[W]e read briefs filed by pro se litigants liberally.” Timson
v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
III.
Liberally construing Makozy’s brief, we understand him to
be raising two errors on appeal: the district court’s (1) dismissal of
his complaint and (2) denial of his motion to recuse. We address
each argument in turn.
We begin with whether the district court abused its discre-
tion when it dismissed Makozy’s complaint based on his failure to
comply with its orders. “A district court has inherent authority to
manage its own docket so as to achieve the orderly and expeditious
disposition of cases.” Equity Lifestyle Props., Inc. v. Fla. Mowing
& Landscape Serv., Inc.,
556 F.3d 1232, 1240 (11th Cir. 2009) (inter-
nal quotation marks omitted). “The court may dismiss a claim if
the plaintiff fails to . . . comply with a court order.”
Id. (citing Fed.
R. Civ. P. 41(b)). Although “dismissal is an extraordinary remedy,
dismissal upon disregard of an order, especially where the litigant
has been forewarned, generally is not an abuse of discretion.”
Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989). In addition,
when a dismissal for failure to follow court orders is without prej-
udice, it usually is not considered an abuse of discretion because
the plaintiff may refile the action. See Dynes v. Army Air Force
Exch. Serv.,
720 F.2d 1495, 1499 (11th Cir. 1983).
Here, we cannot say that the district court abused its discre-
tion when it dismissed Makozy’s lawsuit. There is no question that
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21-13475 Opinion of the Court 7
the district court had the authority to inquire sua sponte into
whether subject matter jurisdiction existed; indeed, it had a duty to
do so. Arbaugh v. Y&H Corp.,
546 U.S. 500, 514 (2006). The district
court was concerned about whether there was complete diversity
of citizenship as required to establish diversity jurisdiction.3 The
district court understood that in his prior lawsuits Makozy had rep-
resented that he was a citizen of Florida. But in this action, filed
several weeks after we affirmed the dismissal order in Makozy III,
he alleged that he was a citizen of Pennsylvania. Given Makozy’s
change in position, the district court reasonably requested that he
provide sworn testimony in the form of an affidavit addressing his
citizenship. Although Makozy filed responses to the court’s orders,
he never followed the court’s direction to provide a sworn state-
ment made under penalty of perjury answering specific questions
related to his citizenship. Given these facts and that the dismissal
was made without prejudice, we find no abuse of discretion. See
Dynes,
720 F.2d at 1499.
We now turn to Makozy’s argument that the district court
erred in denying his motion to recuse. A judge must recuse herself
3 Diversity jurisdiction requires complete diversity of citizenship between all
plaintiffs and defendants—that is, all plaintiffs must be citizens of different
states than all defendants. Sweet Pea Marine, Ltd. v. APJ Marine, Inc.,
411 F.3d
1242, 1247 (11th Cir. 2005). The citizenship of a natural person is the person’s
place of domicile, which requires residence in a state and an intention to re-
main in that state indefinitely. Travaglio v. Am. Express Co.,
735 F.3d 1266,
1269 (11th Cir. 2013).
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8 Opinion of the Court 21-13475
“in any proceeding in which [her] impartiality might reasonably be
questioned” or where she has a “personal bias or prejudice con-
cerning a party.”
28 U.S.C. § 455(a), (b)(1). “The test is whether an
objective, disinterested, lay observer fully informed of the facts un-
derlying the grounds on which recusal was sought would entertain
a significant doubt about the judge’s impartiality.” Parker v. Con-
nors Steel Co.,
855 F.2d 1510, 1524 (11th Cir. 1988). “Ordinarily, a
judge’s rulings in the same or a related case may not serve as the
basis for a recusal motion.” McWhorter v. City of Birmingham,
906 F.2d 674, 678 (11th Cir. 1990).
The district court judge did not abuse her discretion in de-
clining to recuse. No “objective, disinterested, lay observer . . .
would entertain a significant doubt about” her impartiality simply
because she directed Makozy to provide more information about
changing his citizenship from Florida to Pennsylvania. Parker,
855 F.2d at 1524. And we see no indication that the district court
judge had “personal bias [or] prejudice” against Makozy.
28 U.S.C. § 455(b)(1).
IV.
For the reasons set forth above, we affirm.4
AFFIRMED.
4 Also pending before the Court is Makozy’s Motion to Allow Response to
Defendants’ Brief. The motion is GRANTED.
