Center for Individual Rights v. Irina Chevaldina ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13453
Non-Argument Calendar
____________________
CENTER FOR INDIVIDUAL RIGHTS,
Plaintiff-Counter Defendant-Appellee,
versus
IRINA CHEVALDINA,
Defendant-Counter Claimant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:16-cv-20905-WPD
____________________
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2 Opinion of the Court 21-13453
Before LUCK, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Irina Chevaldina, proceeding pro se, appeals following the
voluntary dismissal, without prejudice, of a civil diversity breach of
contract action filed against her by the Center for Individual Rights
(the “Center”), and the denial of certain motions she made seeking
vacatur or reconsideration of the district court’s prior rulings.
We note that in 2020, we affirmed the district court in part,
vacated in part, and remanded this case for further proceedings.
Ctr. for Indiv. Rights v. Chevaldina, 829 F. App’x 416, 417-19 (11th
Cir. 2020) (unpublished). In doing so, we held that Chevaldina had
“wholly failed to adduce any evidence” in support of a counter-
claim against the Center; we affirmed the district court’s grant of
summary judgment to the Center on that counterclaim; but we
also vacated the grant of summary judgment in one respect and
remanded the case for further proceedings. Id. at 417-418. These
ended with the judgment referenced above.
On appeal, Chevaldina contends that the district court erred:
(i) in July 2019, while the earlier appeal was pending, by awarding
the Center $6,303.80 in attorneys’ fees and costs as reasonable ex-
penses following a partially successful motion to hold Chevaldina
in contempt and to compel post-judgment discovery; (ii) by deny-
ing the various motions under Fed. R. Civ. P. 59 or 60, which she
filed between October 2018 and September 2021 (which motions
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challenged orders relating to post-judgment discovery and the or-
der awarding reasonable expenses to the Center and the amount of
reasonable expenses to be awarded); and (iii) in September 2021,
by granting the Center’s voluntary dismissal motion without prej-
udice with each party bearing their own costs.
We will address each of her arguments in turn.
I.
We review the district court’s imposition of sanctions under
Fed. R. Civ. P. 37 for an abuse of discretion. BankAtlantic v. Blythe
Eastman Paine Webber, Inc., 12 F.3d 1045, 1048 (11th Cir. 1994).
Likewise, we review a district court’s determination that a party
failed to comply with local rules for abuse of discretion. See Kilgo
v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993). In doing so, we “give
great deference to a district court’s interpretation of its local rules.”
Reese v. Herbert, 527 F.3d 1253, 1267 n.22 (11th Cir. 2008) (quota-
tion marks omitted).
A district court abuses its discretion when it applies an incor-
rect legal standard, follows improper procedures, or makes findings
of fact that are clearly erroneous. See Luxottica Grp., S.P.A. v. Air-
port Mini Mall, LLC, 932 F.3d 1303, 1311 (11th Cir. 2019). How-
ever, when our review is only for abuse of discretion, it “means
that the district court had a ‘range of choice’ and that we cannot
reverse just because we might have come to a different conclu-
sion . . . .” Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir.
2007).
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4 Opinion of the Court 21-13453
We also may affirm the district court’s decision for reasons
different than those stated by the district court. Turlington v. At-
lanta Gas Light Co., 135 F.3d 1428, 1433 n.9 (11th Cir. 1998). And
we will not reverse on the basis of harmless error. See Equal Emp’t
Opportunity Comm’n v. STME, LLC, 938 F.3d 1305, 1322–23 (11th
Cir. 2019).
Pro se pleadings are liberally construed, but issues not
briefed on appeal are normally forfeited and will not be considered.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). An appel-
lant can abandon a claim by: (1) making only passing reference to
it, (2) raising it in a perfunctory manner without supporting argu-
ments and authority, (3) referring to it only in the “statement of the
case” or “summary of the argument,” or (4) referring to the issue
as mere background to the appellant’s main arguments. Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2014).
Local Rule 7.3 of the Southern District of Florida “provides
a mechanism to assist parties in resolving attorneys fee and costs
disputes by agreement.” S.D. Fla. R. 7.3(a). It provides that “a mo-
tion for an award of attorneys’ fees and/or non-taxable costs arising
from the entry of a final judgment or order” must have several
listed requirements. S.D. Fla. R. 7.3.
Under Rule 69 of the Federal Rules of Civil Procedure, the
procedure for execution of a money judgment “in proceedings sup-
plementary to and in aid of judgment or execution . . . must accord
with the procedure of the state where the court is located” unless
there is an applicable federal statute. Fed. R. Civ. P. 69(a)(1). In aid
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of the judgment or execution, “the judgment creditor . . . may ob-
tain discovery from any person . . . as provided in these rules or by
the procedure of the state where the court is located.” Fed. R. Civ.
P. 69(a)(2); see 42 U.S.C. § 1988.
In Florida, a person who has recovered a judgment in any
court against any person or entity “may obtain discovery from any
person, including the judgment debtor.” Fla. R. Civ. P. 1.560(a).
The rule further provides that:
In addition to any other discovery available to a judg-
ment creditor under this rule, the court, at the request
of the judgment creditor, shall order the judgment
debtor or debtors to complete form 1.977, including
all required attachments, within 45 days of the order
or such other reasonable time as determined by the
court. Failure to obey the order may be considered
contempt of court.
Fla. R. Civ. P. 1.560(b) (emphasis added).
“Sanctions allowed under Rule 37 are intended to 1) com-
pensate the court and other parties for the added expense caused
by discovery abuses, 2) compel discovery, 3) deter others from en-
gaging in similar conduct, and 4) penalize the offending party or
attorney.” Wouters v. Martin Cnty., 9 F.3d 924, 933 (11th Cir.
1993). “Rule 37 sanctions are intended to prevent unfair prejudice
to the litigants and insure the integrity of the discovery process.”
Gratton v. Great Amer. Comm., 178 F.3d 1373, 1375 (11th Cir.
1999). “Rule 37 sanctions were designed not merely to penalize
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those whose conduct may be deemed to warrant such a sanction,
but to deter those who might be tempted to such conduct in the
absence of such a deterrent.” Carlucci v. Piper Aircraft Corp., 775
F.2d 1440, 1447 (11th Cir. 1985) (quotations omitted). “[I]n cases
invoking the sanction power of Rule 37[,] the district court must
clearly state its reasons so that meaningful review may be had on
appeal.” Id. at 1453 ( quotations omitted). “The district court has
broad discretion [to impose sanctions], and this is ‘especially true
when the imposition of monetary sanctions is involved.’” Ban-
kAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1048
(11th Cir. 1994) (citation omitted). “The magnitude of sanctions
awarded is bounded under Rule 37 only by that which is ‘reasona-
ble’ in light of the circumstances.” Carlucci, 775 F.2d at 1453. “If a
pro se litigant ignores a discovery order, he is and should be subject
to sanctions like any other litigant.” Moon v. Newsome, 863 F.2d
835, 837 (11th Cir. 1989).
Rule 37(a)(5)(A) states that “if a motion [to compel] is
granted—or if the disclosure or requested discovery is provided af-
ter the motion was filed—the court must, after giving an oppor-
tunity to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that con-
duct, or both to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees.” Fed. R. Civ. P.
37(a)(5)(A). The Rule gives three exceptions that justify no award
of costs, when “(i) the movant filed the motion before attempting
in good faith to obtain the disclosure or discovery without court
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21-13453 Opinion of the Court 7
action; (ii) the opposing party’s nondisclosure, response, or objec-
tion was substantially justified; or (iii) other circumstances make an
award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii).
The district court did not hold Chevaldina in contempt, and
it denied the Center’s motion in this respect, but it also granted the
Center’s motion in part—i.e. granting the motion to compel
Chevaldina to provide the Center with information. Accordingly,
it found that reasonable expenses were “generally mandatory” un-
der the circumstances. In light of this reasonable construction of
the motion, and the circumstances set forth above, the district
court did not abuse its discretion in awarding reasonable expenses
to the Center for expenses incurred in that regard, even though
Chevaldina was pro se. Moon, 863 F.2d at 835, 837.
Chevaldina’s arguments about whether she was held in con-
tempt or was sanctioned largely fail to address the fact that ex-
penses are generally mandatory when a motion to compel is
granted under Rule 37. Fed. R. Civ. P. 37. Thus, the Center was
entitled to reasonable expenses unless it failed to consult with
Chevaldina ahead of time, Chevaldina’s failure was substantially
justified, or other circumstances made an award unjust. Fed. R.
Civ. P. 37(a)(5)(A)(i)-(iii). Chevaldina fails to offer substantive ar-
gument to suggest that the Center did not consult with her. More-
over, the Center attached its communications with her to show
that it did, in fact, “attempt[t] in good faith to obtain the disclosure
or discovery [from her] without court action.” Fed. R. Civ. P.
37(a)(5)(A)(i).
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8 Opinion of the Court 21-13453
As to whether her non-disclosure was substantially justified,
Chevaldina’s argument that she was not required to “serve” the
Fact Information Sheet is frivolous, because while the order used
the term “serve,” it was evident from the context that Chevaldina
needed to do more than “complete” the form without providing it
to anyone. Moreover, in response to Chevaldina’s argument that
the order was unclear, the Center attested and provided evidence
that it contacted Chevaldina to explain the requested materials.
Chevaldina’s other arguments against compliance—related to the
district court’s subject-matter jurisdiction, the voidness of the judg-
ment, and the district court judge’s purported bias against her—
were properly found to be “meritless” by the district court and the
magistrate judge. Under these circumstances, the “nondisclosure,
response, or objection was [not] substantially justified.” Fed. R.
Civ. P. 37(a)(5)(A)(ii).
Turning to Chevaldina’s arguments about adequate notice,
choice of law, opportunity to be heard, and the Center’s compli-
ance with the local rules, there is nothing in the record suggesting
that Chevaldina did not have an opportunity to respond, as she re-
sponded multiple times to the Center’s initial motions for con-
tempt, the magistrate judge’s order recommending no costs be
awarded, the district court’s order awarding costs, and she reiter-
ated and expanded on these arguments repeatedly in her motions
to vacate and reconsider. Likewise, her argument about the Local
Rules assumes that S.D. Fla. R. 7.3 applies to an award of costs un-
der Fed. R. Civ. P. 37, which the Rule does not reference. Reese,
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527 F.3d at 1267 n.22 (deferring to a district court’s understanding
of its own local rules). There is also nothing in Rule 69 that states
that the use of Florida law in post-judgment proceedings to obtain
discovery is exclusive, and that a party cannot use both Federal and
state law to obtain discovery. See Fed. R. Civ. P. 69(a)(2). Both
Federal and Florida law, moreover, authorize the type of discovery
the Center sought in this case. Fed. R. Civ. P. 69(a)(2), Fla. R. Civ.
P. 1.560(b). Finally, the Center cited both bodies of law in its mo-
tion seeking discovery, which the district court approved.
To the extent Chevaldina raises a challenge to the district
court’s determination about the amount of the award, she failed to
make these arguments before the district court approved the
amount. Moreover, her allegations about the amount of costs are
disproven by the documents the Center submitted, and the Cen-
ter’s explanations provided to the district court. In other words,
Chevaldina has not shown an abuse of discretion in the district
court’s acceptance of the Center’s fee calculations.
As to her inability to pay, Chevaldina has not shown error
on appeal. In her brief, she simply states that the district court
should have considered the issue, which does not show that, if the
district court had considered that, its ruling would have been any
different. STME, LLC, 938 F.3d at 1322–23. Thus, she has not
shown that “other circumstances” made an award unjust. Fed. R.
Civ. P. 37(a)(5)(A)(iii).
II.
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10 Opinion of the Court 21-13453
We review the denial of a motion for reconsideration for
abuse of discretion. See United States v. Simms, 385 F.3d 1347,
1356 (11th Cir. 2004). We have affirmed the denial of a motion for
reconsideration when the defendant did not present newly discov-
ered evidence. See Arthur v. King, 500 F.3d 1335, 1343–44 (11th
Cir. 2007). We have also affirmed the denial of a motion for recon-
sideration where the defendant “did nothing but ask the district
court to reexamine an unfavorable ruling.” Jacobs v. Tempur-
Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010). A motion for
reconsideration may not be used to re-litigate old matters or pre-
sent arguments or evidence that could have been presented before
judgment was entered. Richardson v. Johnson, 598 F.3d 734, 740
(11th Cir. 2010).
We also review the denial of a Rule 60(b) motion for an
abuse of discretion. Toole v. Baxter Healthcare Corp., 235 F.3d
1307, 1316 (11th Cir. 2000). Rule 60(b) allows a party to seek relief
or reopen his case based on the following limited circumstances:
(1) mistake or excusable neglect; (2) newly discovered evidence;
(3) fraud; (4) the judgment is void; (5) the judgment has been dis-
charged; and (6) “any other reason that justifies relief.”
Fed. R. Civ. P. 60(b). A Rule 60(b) motion is intended “only for ex-
traordinary circumstances.” Toole, 235 F.3d at 1316 (quotation
marks and citation omitted).
However, we review de novo the extent to which the law-
of-the-case doctrine applies, Transamerica Leasing, Inc. v. Inst. of
London Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005), and
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21-13453 Opinion of the Court 11
whether a mandate has been complied with, Cambridge Univ.
Press v. Albert, 906 F.3d 1290, 1298 (11th Cir. 2018).
Under the law-of-the-case doctrine, an appellate court’s find-
ings of fact and conclusions of law are generally binding in all sub-
sequent proceedings in the same case in the trial court or on a later
appeal. This That & the Other Gift & Tobacco, Inc. v. Cobb Cty.,
439 F.3d 1275, 1283 (11th Cir. 2006). The mandate rule—a specific
application of the law of the case—binds a lower court to execute
the mandate of the higher court without examination or variance.
Albert, 906 F.3d at 1299. A court “may not alter, amend, or exam-
ine the mandate, or give any further relief or review, but must en-
ter an order in strict compliance with the mandate.” Piambino v.
Bailey, 757 F.2d 1112, 1119 (11th Cir. 1985). The law-of-the-case
doctrine and the mandate rule do not extend to issues that the ap-
pellate court did not explicitly or implicitly address. Id. at 1120.
We note that Chevaldina’s briefs can reasonably be con-
strued as challenging the denial of numerous motions she submit-
ted that requested reconsideration or vacatur of particular orders
or requested identical relief as rejected in prior orders. Timson,
518 F.3d at 874 (construing pro se pleadings liberally). That said,
we note that our 2020 mandate did not require vacatur of the rea-
sonable expenses awarded to the Center for Chevaldina’s failure to
respond to post-judgment discovery. Bailey, 757 F.2d at 1119. Our
opinion in the prior appeal did not implicitly or expressly address
this issue, and, in fact, we explicitly allowed the district court to
consider other, further sanctions in its opinion. See Chevaldina,
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829 F. App’x at 419 (“express[ing] no opinion on the merits of the
sanctions issues”). Thus, the district court’s refusal to vacate the
reasonable expenses award and related orders did not violate our
mandate. Finally, we conclude that the district court did not abuse
its discretion in denying any of her motions for reconsideration.
Accordingly, we affirm in these respects as well. 1
III.
We review for an abuse of discretion a district court’s deci-
sion to grant a voluntary dismissal without conditions. See
McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir. 1986).
We likewise review the district court’s decision whether to award
costs for an abuse of discretion. Mathews v. Crosby, 480 F.3d 1265,
1276 (11th Cir. 2007).
When a court dismisses a suit without prejudice, and the ap-
plicable statute of limitations bars further litigation, we typically
review the dismissal as if it were made with prejudice. Boazman v.
Econ. Lab’y, Inc., 537 F.2d 210, 213 (5th Cir. 1976). 2
1 Contrary to Chevaldina’s suggestion, Chevaldina’s obligation to
have complied with post-judgment discovery and court orders compelling
same is not diminished by the fact that this court later reversed the district
court’s grant of summary judgment in favor of the Center on the Center’s
claim for breach by Chevaldina of the contract with the Center, or by the fact
that the Center even later moved to voluntarily dismiss its contract claim.
2 We are bound by decisions issued by the former Fifth Circuit. Bon-
ner v. City of Prichard, Ala., 661 F.2d 1206, 1210 (11th Cir. 1981) (en banc).
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Rule 54(d)(1) provides that costs, other than attorney’s fees,
“should” be awarded to a “prevailing party” unless a “federal stat-
ute, these rules, or a court order provides otherwise.” Fed. R. Civ.
P. 54(d)(1). Rule 54(d)(1) establishes “a strong presumption that
the prevailing party will be awarded costs,” which “may not ex-
ceed” the limitations prescribed by statute. Mathews, 480 F.3d at
1276. The district court has discretion to deny a prevailing party
costs, but a denial of costs to a prevailing party must be accompa-
nied by a reason for the denial sufficient to allow appellate review
of the discretion exercised. See Head v. Medford, 62 F.3d 351, 354
(11th Cir. 1995).
We review de novo whether a litigant is a “prevailing party”
for purposes of the award of costs in a civil action. Id. (discussing
both attorney fees and costs). The “prevailing party” usually is de-
fined as a “litigant in whose favor judgment is rendered,” even if
such favorable judgment was obtained only as to a fraction of the
litigant’s asserted claims. Id. at 354–55 (citation omitted).
However, we have noted that there is not always a prevail-
ing party in every case. Royal Palm Properties, LLC, v. Pink Palm
Properties, LLC, 38 F. 4th 1372, 1375-77 (11th Cir. 2022) (applying
federal law). Where two parties each lose on the claims they as-
serted against the other or both successfully defend the claims
brought against them, there is no material alteration in the legal
relationship between the parties, and no “clear winner” or prevail-
ing party under Fed. R. Civ. P. 54. Id. at 1377-80. Florida law, like-
wise, provides that where both parties prevail or succeed on their
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claim, a trial court does not abuse its discretion in finding no pre-
vailing party. See, e.g., Tyrek v. Gale Indus., Inc., 3 So. 3d 1194,
1203 (Fla. 2009); Brevard Cnty. Fair Ass’n v. Cocoa Expo, Inc., 832
So. 2d 147, 151 (Fla. Dist. Ct. App. 2002) (“where both parties pre-
vail on significant issues, the trial judge has the discretion to deter-
mine neither party prevailed”).
Chevaldina’s main argument against dismissal without prej-
udice on appeal misinterprets the Center’s voluntary dismissal mo-
tion: Chevaldina asserts that the Center sought dismissal with prej-
udice, but it did not do so, except as an alternative to dismissal with-
out prejudice. Accordingly, Chevaldina’s arguments to this ef-
fect—that the parties agreed that dismissal should be with preju-
dice and that the district court was bound to accept the Center’s
request for dismissal with prejudice—are meritless.
Further, Chevaldina has arguably abandoned any argument
that the district court erred in assessing the reasons for dismissing
the Center’s sole claim without prejudice. Timson, 518 F.3d at 874.
For example, she does not argue that the district court incorrectly
noted that the statute of limitations barred re-litigation of the claim
in any event, so the dismissal functioned as a dismissal with preju-
dice. See Boazman, 537 F.2d at 213. Thus, even if the district court
should have dismissed the Center’s claim with prejudice, the effect
would be the same, so any error would be harmless. Id.; see also
STME, LLC, 938 F.3d at 1322–23.
Moreover, the district court explained the reasons for dis-
missing the suit without prejudice in its order, and Chevaldina does
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not challenge those reasons on appeal. Timson, 518 F.3d at 874.
Thus, the district court did not err in granting the motion for vol-
untary dismissal without prejudice.
Likewise, the district court did not abuse its discretion in
denying costs. First, even reviewing the issue de novo, Chevaldina
was not a “prevailing party” for purposes of the award of costs.
Head, 62 F.3d at 354. The Center sued her, she asserted a counter-
claim, and, after an appeal, she obtained a vacatur of the summary
judgment grant on the Center’s claims, but the Center prevailed as
to her counterclaim. Chevaldina, 829 F. App’x at 417-419. After all
of that, the Center voluntarily dismissed its underlying claim
against her.
Under these circumstances, under either Federal or Florida
law, the district court may have permissibly found no “clear win-
ner” entitled to costs. See Royal Palm Properties, 38 F.4th at 1377-
80; Tyrek, 3 So. 3d at 1203. While the district court did not explic-
itly state that Chevaldina was not the prevailing party, such a con-
clusion would justify no award of costs and would not have been
an abuse of discretion. Royal Palm Properties, 38 F.4th at 1377-80;
Tyrek, 3 So. 3d at 1203.
Even if this Court were to conclude that Chevaldina was a
prevailing party, it does not appear that the district court abused its
discretion, because her repeated and extended filing of motions, of-
ten reiterated points raised and rejected previously, arguably in-
creased her own costs, as the district court noted. Head, 62 F.3d at
354. Further, as the Center notes, imposition of any conditions or
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16 Opinion of the Court 21-13453
an award of costs could have led it to withdraw its motion, thereby
prolonging the action further, which also supports the district
court’s decision in this regard. For these reasons, we affirm.
AFFIRMED.