Arturo Rubinstein v. Yoram Yehuba ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11189
____________________
ARTURO RUBINSTEIN,
individually,
FAB ROCK INVESTMENTS, LLC,
a Nevada limited liability company,
OCEANSIDE MILE, LLC,
a Florida limited liability company,
Plaintiffs-Appellees
-Cross Appellants,
versus
YORAM YEHUDA,
SHARONA YEHUDA,
THE KESHET INTER VIVOS TRUST,
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2 Opinion of the Court 20-11189
Defendants-Appellants
-Cross Appellees,
KARIN YEHUDA, et al.,
Defendants.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:17-cv-61019-KMW
____________________
Before WILSON, ROSENBAUM, Circuit Judges, and CONWAY,∗ Dis-
trict Judge.
WILSON, Circuit Judge:
For many years, Arturo Rubinstein was a close friend to
Yoram and Sharona Yehuda. So when the Yehudas found them-
selves in financial trouble, they turned to Rubinstein for help. The
Yehudas’ trouble was this. Through a family trust, they held the
majority stake in an LLC that owned a beachfront hotel. The LLC
had fallen behind on repaying a bank loan, and the loan was soon
∗ Honorable Anne C. Conway, United States District Judge for the Middle Dis-
trict of Florida, sitting by designation.
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20-11189 Opinion of the Court 3
coming due. With the threat of bankruptcy and foreclosure on the
hotel looming, the Yehudas and Rubinstein worked out a hand-
shake deal. Rubinstein agreed to help the LLC obtain financing,
and the Yehudas agreed to assign Rubinstein and his company their
majority stake in the LLC.
The question is: what did that assignment entail? The par-
ties told two different stories following the assignment. The Yehu-
das said that they had agreed to assign Rubinstein a temporary in-
terest in the LLC, and that he had agreed to return that interest
after he helped obtain financing. Rubinstein insisted that the Ye-
hudas had agreed to assign a permanent interest in the LLC. While
a dispute about the permanency of the assigned interest festered,
the Yehudas took matters into their own hands. Holding them-
selves out as owners of the hotel, they sold the property and dis-
tributed the proceeds to themselves and their investors. Rubin-
stein soon learned of the sale and filed suit.
After years of litigation and a two-week trial, the jury mostly
accepted Rubinstein’s version of events. They awarded him a four-
million-dollar verdict on claims of fraud and conversion, which
they reduced by a half million dollars for his failure to mitigate
damages. The Yehudas now seek to vacate that verdict, arguing
that the district court lacked subject matter jurisdiction. We reject
that argument. Though the only federal claim in this case, a civil
Racketeer Influenced and Corrupt Organizations Act (RICO)
claim, was dismissed at the pleading stage, it was substantial
enough to invoke the district court’s jurisdiction. And that federal
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4 Opinion of the Court 20-11189
jurisdictional hook empowered the court to continue exercising
supplemental jurisdiction over related state law claims.
The Yehudas also complain that the jury’s $2.5 million puni-
tive damages award was excessive, that the district court coerced
the jury, and that the jury relied on improper expert testimony.
Upon review, none of these arguments warrant reversal. Finally,
Rubinstein cross-appeals the reduction of damages for failure to
mitigate. We reverse on that issue because there was no evidence
that any inaction on Rubinstein’s part increased the amount of
damages suffered.
I. Background
A. Factual Background
The origins of this case trace back to 2006. At that time, the
Yehudas were looking to buy the Seabonay Beach Resort, a beach-
front hotel in Broward County, Florida. They planned to renovate
and operate the hotel. For that purpose, they formed Oceanside
Mile LLC, which we’ll refer to as “Oceanside.” Through
Oceanside, the Yehudas purchased the hotel property in 2007 for
$10.5 million.
The Yehudas transferred their interest in Oceanside to a
family trust, which we’ll call “the Trust.” To help fund the hotel
purchase, the Trust sold part of its equity in Oceanside, but kept a
50.5% majority stake. The Yehudas also contributed $3 million of
their own money to buy the hotel, and they took out a $6.5 million
loan which they personally guaranteed and which was secured by
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a mortgage against the hotel. That loan was later assigned to First
Citizens Bank.
The Yehudas managed and operated the hotel for the next
several years, but in 2013 they encountered a problem. The First
Citizens loan was nearing maturity, and Oceanside could not pay.
Making matters worse, Oceanside could not refinance the loan be-
cause the Yehudas had poor credit and no longer qualified as guar-
antors. In need of help, the Yehudas cut a deal with their friend,
Rubinstein, under which the Trust would assign its 50.5% interest
in Oceanside to Rubinstein’s company, Fab Rock. The understand-
ing was that Rubinstein would obtain financing and help solve
Oceanside’s financial problems. The Trust promptly made the as-
signment to Fab Rock and named Fab Rock the managing member
of Oceanside.
The agreement, however, was never reduced to writing,
and the parties have disputed the nature of the assignment. Ac-
cording to Rubinstein, the assignment was permanent. He offers
at least two reasons why the Yehudas agreed to such a deal. First,
the deal allowed them to continue to work as managers of the hotel
and to earn management fees from doing so. Second, the Yehudas
were worried about becoming the target of a lawsuit from
Oceanside’s minority owners who stood to lose their investment if
First Citizens foreclosed on the hotel. By parting with their interest
in Oceanside, the Yehudas escaped that predicament. Of course,
the Yehudas tell a different story: that the assignment was tempo-
rary and for the limited purpose of refinancing the First Citizens
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6 Opinion of the Court 20-11189
loan. They say that Rubinstein was to return his 50.5% interest in
Oceanside as soon as a new loan was secured. On this version of
events, Rubinstein came to the Yehudas’ aid because he owed them
a favor.
In any event, the assignment took place in September 2013,
just a month before the First Citizens loan was set to mature. As
the deadline approached, negotiations between Oceanside and
First Citizens stalemated. Three days before the loan came due,
Oceanside filed for Chapter 11 bankruptcy, and First Citizens sued
the Yehudas shortly after for breach of their guarantees. In the
bankruptcy proceedings, Rubinstein paid hundreds of thousands of
dollars in legal fees, and he attended bankruptcy hearings with the
Yehudas. The Yehudas’ testimony at some of these bankruptcy
hearings was notable. For example, Sharona Yehuda stated under
oath that she and her husband had transferred ownership of
Oceanside to Fab Rock. And Yoram Yehuda testified at his deposi-
tion that the Yehudas had assigned their interest in Oceanside to
Fab Rock without any agreement for Fab Rock to return that inter-
est.
After about a year, the bankruptcy proceedings ended when
Oceanside secured a $5.2 million loan from Stonegate Bank. Ru-
binstein and two of Oceanside’s minority members personally
guaranteed the Stonegate loan, which infused enough cash to pay
off all but $1 million of the First Citizens loan. To help cover the
balance, Rubinstein contributed $500,000. Oceanside’s minority
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owners helped pay off the rest. At that point, First Citizens, having
been fully repaid, dismissed its lawsuit against the Yehudas.
It was not long, though, before controversy arose between
the Yehudas and Rubinstein. Central to the controversy were two
documents executed in December 2015: an agreement, and a mod-
ification to the agreement, purporting to transfer Fab Rock’s own-
ership in Oceanside back to the Yehudas for no consideration.
While the documents appeared to bear Rubinstein’s signatures,
Rubinstein insisted that the Yehudas had forged the signatures in
an effort to seize control of Oceanside.
Meanwhile, the Yehudas created an LLC called Fabrock
One—named nearly identically to Rubinstein’s Fab Rock—and ap-
pointed their daughter manager of the company. Sharona Yehuda
then called Oceanside’s accountant and informed him that Fab
Rock’s tax identification number and address had changed. But ra-
ther than give the information for Fab Rock, she gave the infor-
mation for the newly created Fabrock One. The Yehudas also
opened new bank accounts without Rubinstein’s knowledge and
moved Oceanside’s money into those accounts. The reason for
opening these accounts, Rubinstein says, was to divert Oceanside’s
sales proceeds to accounts the Yehudas controlled.
Around the same time, in late 2015, the parties began filing
competing annual reports with the State of Florida. Sharona Ye-
huda filed reports listing herself as Oceanside’s manager. Rubin-
stein countered with amended reports listing Oceanside’s manager
as himself or Fab Rock. These back-and-forth filings continued
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8 Opinion of the Court 20-11189
through December 2015. Sharona Yehuda continued to submit fil-
ings after that time, but Rubinstein tried a different tack. In June
2016, he directed the Yehudas to relinquish their role as hotel man-
agers. When they refused, he sued in California, where the Yehu-
das resided. Among other things, Rubinstein sought to remove the
Yehudas as managers of the hotel.
While the California action was pending, the Yehudas began
negotiating a sale of the hotel—apparently without Rubinstein’s
knowledge. In December 2016, they executed a contract to sell the
hotel for $13.5 million. When the buyers, conducting due dili-
gence, asked who Rubinstein was, the Yehudas said he was merely
a “front man” on a loan. At the closing, Sharona Yehuda signed
over the deed along with an owner’s affidavit stating under penalty
of perjury that no one else had an interest in the hotel and that
Oceanside was not involved in ongoing litigation. The Yehudas
received just over $4 million in sale proceeds, with the rest going
to Oceanside’s minority members. None of the proceeds went to
Rubinstein.
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B. Procedural Background
1. Pretrial Proceedings
In 2017, Rubinstein, Fab Rock, and Oceanside filed this ac-
tion in federal court against the Yehudas and the Trust. 1 To sim-
plify, we often refer to the plaintiffs collectively as “Rubinstein,”
and to the defendants—Yoram Yehuda, Sharona Yehuda, and the
Trust—as “the Yehudas.”
In a second amended complaint, Rubinstein alleged a fed-
eral RICO violation, along with a host of state law claims. Three
of Rubinstein’s claims are relevant to this appeal. First, in his fed-
eral RICO claim, Rubinstein alleged that between 2007 and 2017
the Yehudas engaged in a pattern of racketeering activity involving
mail fraud and money laundering. Second, in a common law fraud
claim, he alleged that the Yehudas falsely represented that they
would permanently assign their interest in Oceanside, despite in-
tending all along to retake that interest. Third, in a conversion
claim, he alleged that the Yehudas unlawfully converted his inter-
est in Oceanside and the net proceeds from the hotel sale.
The Yehudas moved to dismiss the complaint for failure to
state a claim. They added that dismissal of the federal RICO count
would strip the court of jurisdiction. After Rubinstein filed a
1 Additional defendants in this action were: Oceanside’s minority owners, the
buyers of the hotel, and Stonegate Bank. In this appeal, our focus is narrowed
to the claims against the Yehudas.
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10 Opinion of the Court 20-11189
response, the Yehudas included in their reply a line stating: “With
the absence of adequately alleged predicate acts, the RICO claim
fails, and so too goes this Court’s jurisdiction and the entire action
should be properly remanded to state court. See SAC ¶ 1; 28 U.S.C.
§ 1367(c)(3).”
In October 2018, the magistrate judge recommended dismis-
sal of the federal RICO claim and several of the state law claims.
The magistrate judge found that the federal RICO claim failed for
a couple reasons. “[M]ost glaring[ly],” the complaint did not iden-
tify a pattern of racketeering. Instead, it relied on a single event:
the sale of the hotel. The magistrate judge also found that Rubin-
stein’s allegations of predicate racketeering acts were too conclu-
sory even under normal pleading standards, and much too conclu-
sory under the heightened Rule 9(b) standard that applies to civil
RICO claims. “[A]t bottom,” the magistrate judge found, this was
“a fraud by forgery case.” The district court, adopting the magis-
trate judge’s report and recommendation, dismissed the federal
RICO claim and some of the state law claims. Rubinstein’s fraud
and conversion claims survived.
Neither the magistrate judge nor the district court addressed
subject matter jurisdiction. And after the district court’s ruling, the
Yehudas did not move to dismiss the action based on lack of subject
matter jurisdiction. Nor did the issue of jurisdiction often arise in
the litigation that followed. One of the few times the issue arose,
during a December 2018 discovery hearing, the magistrate judge
seemed under the impression that the case was proceeding in
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20-11189 Opinion of the Court 11
federal court based on diversity jurisdiction. Rubenstein’s counsel
clarified that the court had supplemental jurisdiction, and the Ye-
hudas’ counsel agreed that there was “possible supplemental juris-
diction” which the court could exercise “in its discretion.” The is-
sue next arose in February 2019, albeit briefly, when the Yehudas
filed an amended answer to Rubinstein’s second amended com-
plaint. They denied subject matter jurisdiction, stating that the dis-
missal of the federal RICO claim divested the court of jurisdiction.
But several weeks before trial, in July 2019, the parties stip-
ulated that the court had jurisdiction. The stipulation provided:
“There are compelling reasons for the Court to continue to exer-
cise supplemental jurisdiction . . . [g]iven the amount of judicial
time that has been expended . . . and the overall passage of time
involved.”
2. Trial and Posttrial Proceedings
Trial began on July 29, 2019 and lasted two weeks. On the
fifth day of trial, Rubinstein moved to qualify an expert witness to
testify about whether the signatures on the agreement and modifi-
cation documents were forged. The Yehudas objected, arguing
that he was not qualified to testify as an expert in document exam-
ination. After hearing argument on the witness’s qualifications, the
district court stated: “I will not recognize him as an expert; I will
recognize that [Rubinstein is] calling him as an expert. If he testifies
he had better stay in a very narrow lane.” Then, over a break, the
district court reviewed the witness’s history of testimony in past
cases. After its review, the court concluded that, although the
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12 Opinion of the Court 20-11189
witness’s credentials were “thin,” he would be allowed to testify on
the condition that he did not misrepresent his qualifications to the
jury. The witness then testified that, in his opinion, Rubinstein did
not sign the agreement and modification.
After the parties presented their cases, the court instructed
the jury. Over Rubinstein’s objection, the court instructed that the
jury should reduce the damages award if it found that Rubinstein
failed to mitigate his damages. The Yehudas’ theory was that Ru-
binstein knew ownership of the hotel was contested by late 2015,
and that if he had taken action—perhaps by filing statements of au-
thority with the State of Florida in 2016 and 2017—he could have
prevented the sale of the hotel.
The jurors began deliberating the morning of August 12. By
around 5 p.m., they had a question: Did each juror have to reach
the same answer? The court responded that the verdict had to be
unanimous. The next day, the jurors sent another note stating that
they could not reach an agreement. Two more notes soon fol-
lowed, reporting that Juror 2 had health concerns and that Juror 3
had work scheduling issues. The court called the jury to the court-
room and expressed that it was “aware of the situations” the jury
had reported. Acknowledging the “difficult task” at hand, the court
excused the jurors for the rest of the day.
On the third day of deliberations, the court discussed with
counsel the possibility of giving the Eleventh Circuit pattern civil
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Allen 2 charge. An Allen charge is an instruction given by a trial
judge when a jury is having trouble reaching a verdict. It has often
been called a “dynamite” charge for its potential to “blast loose a
deadlocked jury.” Green v. United States, 309 F.2d 852, 854 (5th
Cir. 1962). The Yehudas objected. They argued that the instruc-
tion would pressure jurors in the minority to abandon their hon-
estly held beliefs. Nonetheless, the district court advised that, if
needed, it would give the pattern Allen charge. Later that day, the
jury sent yet another note. This one stated: “[W]e cannot come to
a unanimous decision after deliberating for two days. People on
this jury are saying they do not see any evidence to change their
mind. Please advise on how to move forward.”
The district court then gave the pattern Allen charge which
provided in full:
Members of the jury: I am going to ask that
you continue your deliberations to reach a verdict,
and I want you to consider the following comments.
This is an important case, and the trial has been ex-
pensive in terms of time, effort, money, and emo-
tional strain to both the plaintiffs and the defendants.
If you fail to agree on a verdict, the case remains open
and may have to be tried again. A second trial would
be costly to both sides, and there’s no reason to be-
lieve either side can try it again better or more
2 Allen v. United States, 164 U.S. 492 (1896).
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14 Opinion of the Court 20-11189
exhaustively than they have tried it before you. Any
future jury is going to be selected in the same manner
and from the same source as you. There is no reason
to believe that the case could ever be submitted to a
jury of people more conscientious, more impartial, or
more competent to decide it, or that either side could
produce more or clearer evidence. It’s your duty to
consult with one another and to deliberate with a
view to reaching an agreement if you can do it with-
out violating your individual judgment. Again, you
must not give up your honest beliefs about the evi-
dence[’s] weight or [ ] effect solely because of other
jurors’ opinions or just to reach a verdict. You must
decide the case for yourself, but only after you con-
sider the evidence with your fellow jurors.
So you shouldn’t hesitate to reexamine your
own views and change your opinion if you become
convinced it’s wrong. To bring your minds to a unan-
imous result[,] you must openly and frankly examine
the questions submitted to you with proper regard for
the opinions of others with a willingness to reex-
amine your own views. If a substantial majority of
you are for a verdict for one party[,] each of you who
holds a different position ought to consider whether
your position is reasonable. It might not be reasona-
ble since it makes so little impression on the minds of
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20-11189 Opinion of the Court 15
your fellow jurors who bear the same responsibility,
serve under the same oath[,] and have heard the same
evidence. Now you may conduct your deliberations
as you choose. But I suggest that you now carefully
reexamine and reconsider all the evidence in light of
the further instructions to you on the law. Again,
considering all of the instructions as a whole, and you
may take all the time you need. Again, I remind you,
you must consider all of the instructions as a whole.
You shouldn’t single out any part of any instruction,
including this one, and ignore others. And I now ask
you to return to the jury room and continue your de-
liberations.
Deliberations resumed the next morning and by 1:30 p.m.
the jury had reached a verdict. The jury found that (1) Sharona
Yehuda and the Trust (but not Yoram Yehuda) were liable for com-
mon law fraud; and (2) Sharona Yehuda, Yoram Yehuda, and the
Trust were liable for conversion. The jury awarded $1.5 million in
compensatory damages, from which it subtracted $500,000 for Ru-
binstein’s failure to mitigate damages. It awarded $2.5 million in
punitive damages.
The Yehudas filed a notice of appeal. Fifteen days later, Ru-
binstein filed a cross-appeal, arguing that the district court should
not have allowed the Yehudas’ failure-to-mitigate defense.
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16 Opinion of the Court 20-11189
II. Standard of Review
We review the district court’s subject matter jurisdiction de
novo. Milan Exp., Inc. v. Averitt Exp., Inc., 208 F.3d 975, 978 (11th
Cir. 2000). The constitutionality of a punitive damages award is
also reviewed de novo. Williams v. First Advantage LNS Screening
Sols. Inc., 947 F.3d 735, 744 (11th Cir. 2020). We review for abuse
of discretion the district court’s decision to give a jury instruction,
including an Allen charge, Burkhart v. R.J. Reynolds Tobacco Co.,
884 F.3d 1068, 1086–87 (11th Cir. 2018), and we apply the same
standard to a district court’s decision to allow expert testimony,
Berdeaux v. Gamble Alden Life Ins. Co., 528 F.2d 987, 990 (5th Cir.
1976).
III. Discussion
Our discussion breaks into three parts. In Part A, we exam-
ine the district court’s subject matter jurisdiction. In Part B, we
consider the Yehudas’ contentions that: (1) the district court erred
in giving the Allen charge, (2) the district court erred in allowing
Rubinstein’s expert witness to testify, and (3) the punitive damages
award should be remitted. Finally, in Part C, we address Rubin-
stein’s cross-appeal.
A. Subject Matter Jurisdiction
This case proceeded in federal court based on supplemental
jurisdiction. The supplemental jurisdiction statute, 28 U.S.C. §
1367, provides in relevant part:
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(a) Except as provided in subsections (b) and (c)
. . . in any civil action of which the district courts have
original jurisdiction, the district courts shall have sup-
plemental jurisdiction over all other claims that are so
related to claims in the action within such original ju-
risdiction that they form part of the same case or con-
troversy under Article III of the United States Consti-
tution.
...
(c) The district courts may decline to exercise
supplemental jurisdiction over a claim under subsec-
tion (a) if—
...
(3) the district court has dismissed all claims
over which it has original jurisdiction . . . .
28 U.S.C. § 1367.
We have explained that subsections (a) and (c) reflect a “di-
chotomy.” Lucero v. Trosch, 121 F.3d 591, 597 (11th Cir. 1997).
“Subsection (a) . . . establishes the district court’s power to exercise
supplemental jurisdiction over all supplemental claims which form
part of the same ‘case or controversy’ under Article III of the Con-
stitution.” Id. Under this subsection, federal courts can exercise
supplemental jurisdiction over state claims only when a substantial
federal claim is pleaded in the complaint. United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 725 (1966). Because § 1367(a) implicates
Article III’s case or controversy requirement, Lucero, 121 F.3d at
598, it is not subject to waiver by the parties.
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18 Opinion of the Court 20-11189
Subsection (c) then gives the district court discretion to de-
cline supplemental jurisdiction in some circumstances, including
when the district court has dismissed all the federal claims, and only
state claims remain in the action. Id. Because this subsection does
not implicate Article III’s case or controversy requirement, it is sub-
ject to waiver and forfeiture. See id. A party must put the issue
before the district court if it wants the court to exercise its discre-
tion to decline jurisdiction. Id.The Yehudas’ challenge to the district court’s jurisdiction
tracks this dichotomy. First, they argue that this case never pre-
sented a federal question sufficient to confer jurisdiction under §
1367(a) because the RICO claim was a farce, designed to get Rubin-
stein’s state law claims into federal court. Second, they argue that
even if the federal RICO claim arose under federal law, the district
court should have exercised its discretion under § 1367(c) to dismiss
the state law claims once the federal RICO claim had been dis-
missed. We address those two contentions in turn.
1. Substantiality of the Federal Claim
Not every complaint alleging a federal claim invokes federal
question jurisdiction. See Bell v. Hood, 327 U.S. 678, 682–83
(1946). A federal claim fails to invoke federal jurisdiction where it
is either “immaterial and made solely for the purpose of obtaining
jurisdiction” or “wholly insubstantial and frivolous.”3 Id. A claim
3 The notion from Bell that we can distinguish “frivolous” claims from those
that simply fail on the merits has received its share of criticism. Four decades
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is insubstantial and frivolous if it is “obviously without merit” or
clearly foreclosed by Supreme Court precedent. Hagans v. Lavine,
415 U.S. 528, 537 (1974). Under this onerous standard, “the cate-
gory of claims that are ‘wholly insubstantial and frivolous’ is ex-
ceedingly narrow.” Resnick v. KrunchCash, LLC, 34 F.4th 1028,
1034 (11th Cir. 2022). The Yehudas argue that Rubinstein’s federal
RICO claim is in this narrow category of cases. They say it falls far
short of pleading the required RICO elements and is obviously de-
void of merit.
A civil RICO claim requires a pattern of racketeering activ-
ity, which is established by “at least two distinct but related predi-
cate acts.” Edwards v. Prime, Inc., 602 F.3d 1276, 1292 (11th Cir.
2010) (internal quotation marks omitted). Rubinstein alleged a pat-
tern of racketeering based on two predicate acts: mail fraud and
money laundering.
As to mail fraud, Rubinstein alleged that the Yehudas
“[e]ngag[ed] in a scheme to defraud third parties and us[ed] the
ago, then-Justice Rehnquist attempted, unsuccessfully, to persuade the Court
to reconsider Bell. He argued that Bell blurred the line between merits and
jurisdictional deficiencies, had no basis in the Federal Rules of Civil Procedure,
and created a difficult line-drawing problem for courts. See Yazoo Cnty. In-
dus. Dev. Corp. v. Suthoff, 454 U.S. 1157, 1160 (1982) (Rehnquist, J., dissenting
from the denial of certiorari). One of our colleagues recently built upon that
criticism and invited the Supreme Court to revisit the doctrine. Resnick v.
KrunchCash, LLC, 34 F.4th 1028, 1040–42 (11th Cir. 2022) (Newsom, J., con-
curring). But for now, of course, we remain bound by the Court’s teaching in
Bell.
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20 Opinion of the Court 20-11189
United States mail to execute this scheme in violation of 18 U.S.C.
§ 1341 as alleged in paragraphs 38, 40, and 54[.]” The cross-refer-
enced paragraphs alleged that:
• Sharona Yehuda “fed Oceanside’s accountant false in-
formation so that he would file a tax return with Fab
Rock One’s information in place of Fab Rock’s, and in
fact he did so through the United States mail.”
• The Yehudas “falsely made, altered, forged or coun-
terfeited several Annual Reports and other official
documentation by United States mail.”
• The Yehudas filed fraudulent annual reports via mail
on October 22, 2015, November 24, 2015, February 9,
2016, and January 13, 2017.
• The Yehudas filed a fraudulent amendment to
Oceanside’s Articles of Organization via United States
mail on or about April 26, 2017.
Attached to the complaint were exhibits supporting these allega-
tions.
As to money laundering, Rubinstein alleged that the Yehu-
das engaged in a monetary transaction in property derived from
the unlawful sale of the hotel. Elsewhere in the complaint, Rubin-
stein alleged that after the Yehudas sold the hotel for $13.5 million,
they “drained Oceanside’s bank accounts, distributing the monies
to themselves, to some of the members of Oceanside, and to
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20-11189 Opinion of the Court 21
unrelated third parties,” paying none of the proceeds to Fab Rock
or Rubinstein.
The magistrate judge focused on two flaws in the RICO al-
legations. First, they did not establish a pattern of racketeering.
The magistrate judge reasoned that the Yehudas’ repeated filing of
fraudulent business records, the sale of the hotel, and the disburse-
ments of the sale proceeds all reduced to a single scheme and a sin-
gular purpose: to sell the hotel and deprive Rubinstein and Fab
Rock of the proceeds. The second flaw was that Rubinstein’s alle-
gations of mail fraud and money laundering were conclusory. For
example, Rubinstein dedicated just one paragraph of his complaint
to money laundering allegations, and that paragraph had little sub-
stance. It “merely direct[ed] the Court to review other portions of
the [complaint] to figure out the nature of [the] allegations.” Based
on these flaws, the Yehudas argue that Rubinstein’s RICO claim
was obviously meritless.
For support, they point to a pair of Seventh Circuit cases in
which federal RICO allegations fell so flat that they failed to invoke
the jurisdiction of a federal court. In the first case, Williams v. Az-
tar Indiana Gaming Corp., a compulsive gambler sued a casino un-
der the federal RICO statute. 351 F.3d 294, 296 (7th Cir. 2003). To
establish the required predicate racketeering activity, he argued
that the casino had committed mail fraud by sending him mislead-
ing promotional materials. Id. at 299. The plaintiff came nowhere
near stating a claim because the casino’s communications were not
misrepresentations, much less ones that the plaintiff could have
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22 Opinion of the Court 20-11189
relied on. Id. And in fact, plaintiff’s counsel “all but conceded” at
oral argument “that he lacked a good faith basis for bringing the
RICO claim.” Id. at 300. The Seventh Circuit, seeing through the
plaintiff’s gamesmanship, held that the claim was “so feeble, so
transparent an attempt to move a state-law dispute to federal
court” that it did not invoke federal jurisdiction. Id. at 299 (internal
quotation marks omitted).
The second case the Yehudas analogize to is Oak Park Trust
and Savings Bank v. Therkildsen, 209 F.3d 648 (7th Cir. 2000). The
RICO claim in that case was based on a developer’s false promise
to a potential buyer that a community would be private and gated.
Id. at 651. At best, the court reasoned, the potential buyer had a
breach of contract claim which could not serve as the predicate for
a RICO claim. Id. And even if the plaintiff’s claim could be viewed
as alleging fraud, it alleged only a single instance of fraud and thus
could not show a pattern of racketeering. Id.There is significant daylight, however, between this case and
those Seventh Circuit cases. It was evident in Aztar—and plaintiff’s
counsel “all but conceded”—that the RICO claim was a ploy to
manufacture federal jurisdiction. And in both Aztar and Ther-
kildsen, the plaintiffs alleged nothing even approaching a pattern of
racketeering. Rubinstein’s RICO claim, though it misses the mark,
at least comes closer to its target.
Here’s why. A pattern of racketeering can be established
when a defendant commits a predicate act of racketeering and laun-
ders the proceeds derived from that initial predicate act. United
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20-11189 Opinion of the Court 23
States v. Godwin, 765 F.3d 1306, 1322 (11th Cir. 2014). In Godwin,
for example, the government proved a pattern of racketeering by
showing that the defendant (1) participated in a home invasion rob-
bery, and (2) engaged in money laundering by conducting a finan-
cial transaction involving the proceeds of that robbery. Id. In sim-
ilar fashion, Rubinstein could have alleged that the Yehudas en-
gaged in a pattern of racketeering by (1) committing mail fraud to
induce the sale of the hotel, and (2) laundering the proceeds of that
sale.
To be sure, the RICO count was properly dismissed because
Rubinstein failed to plead the claim with the specificity required for
fraud allegations. The paragraph of the complaint alleging money
laundering, for example, does not specify any financial transaction
other than the sale of the hotel. Moreover, the complaint’s scat-
tered references to the Yehudas “drain[ing] [ ] bank accounts” and
“distributing [ ] monies to themselves” are vague and not clearly
incorporated into the money laundering allegations. These short-
comings, however, do not place Rubinstein’s claim in the extreme
category of cases so frivolous that they fail to invoke the court’s
jurisdiction. His claim is of the more common variety that fail on
the merits. Therefore, we find that the RICO claim was substantial
enough to confer subject matter jurisdiction.
2. District Court’s Discretion to Exercise Supplemental
Jurisdiction
We turn, then, to the second part of our supplemental juris-
diction analysis. Even if the RICO claim invoked federal
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24 Opinion of the Court 20-11189
jurisdiction, should the district court have dismissed the state law
claims once it had dismissed the RICO claim? The Yehudas say it
should have. Rubinstein counters that the Yehudas waived any ob-
jections to supplemental jurisdiction.
Waiver is the “intentional relinquishment or abandonment
of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993)
(internal quotations marks omitted). A party can waive an issue by
making only a passing reference to it and failing “to make argu-
ments and cite authorities in support of [the] issue.” Hamilton v.
Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012).
With that standard in mind, we conclude that waiver occurred
here. The Yehudas cited § 1367(c) only a single time in their mo-
tion to dismiss reply, and they did not develop any argument under
that subsection. Nor did they file any motion to put the issue be-
fore the court after the federal RICO claim was dismissed. Moreo-
ver, by stipulating that the exhaustion of “extensive judicial re-
sources” on the case was a “compelling reason[ ]” for the district
court to continue exercising jurisdiction over state law claims, the
Yehudas relinquished any right to have the district court decline to
exercise supplemental jurisdiction over the remaining state law
claims. See Olano, 507 U.S. at 733. Because the argument is
waived, we will not entertain it on appeal.
To recap, Rubinstein’s federal civil RICO claim was not so
obviously frivolous that it failed to invoke federal jurisdiction. And
although the district court could have declined to continue exercis-
ing jurisdiction once the federal RICO claim was dismissed, the
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20-11189 Opinion of the Court 25
parties consented to litigating the remaining state law claims in fed-
eral court. As a result, the Yehudas cannot argue on appeal that
the district court abused its discretion by declining to dismiss the
case. We can therefore proceed to the merits of the appeal.
B. Trial Errors Raised on Appeal
The Yehudas argue that even if the district court had juris-
diction, we should reverse and remand for a new trial based on any
of three errors.
1. The Allen Charge
The Yehudas’ first contention is that the district court’s Allen
charge coerced the jury to reach a verdict. Over the years, several
judges on our court and its predecessor, the old Fifth Circuit, have
sharply criticized the practice of giving Allen charges, worrying
that jurors in the minority will feel pressure to conform to the ma-
jority view. See United States v. Rey, 811 F.2d 1453, 1460 (11th Cir.
1987); Andrews v. United States, 309 F.2d 127, 129–30 (5th Cir.
1962) (Wisdom, J., dissenting). Still, our precedent condones the
practice as long as the district court does not “coerce any juror to
give up an honest belief.” United States v. Anderson, 1 F.4th 1244,
1269 (11th Cir. 2021) (internal quotation marks omitted). Whether
an Allen charge is coercive depends on two things: “the language
of the charge and the totality of the circumstances under which it
was delivered.” Id. When considering whether an Allen charge
was coercive, we are mindful that “[a] district judge, watching the
jurors file back into the courtroom and looking them in the eye,
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26 Opinion of the Court 20-11189
can make a better judgment . . . than an appellate court reading the
cold record.” United States v. Davis, 779 F.3d 1305, 1314 (11th Cir.
2015).
The Yehudas attack the Allen charge from two angles. First,
they say that the language of the Allen charge was coercive. They
take particular exception to the court telling the jury that a retrial
would be costly. We are unpersuaded by this argument. The Allen
charge read to the jury matched the pattern Eleventh Circuit in-
struction. We approved of materially identical language only a few
years ago, see Burkhart, 884 F.3d at 1085 n.5, and we are thus
bound to do the same here.
Second, the Yehudas argue that the Allen charge was coer-
cive given the totality of the circumstances. We have identified
five circumstances relevant to this analysis, though the list is not
exhaustive:
(1) the total length of deliberations; (2) the number of
times the jury reported being deadlocked and was in-
structed to resume deliberations; (3) whether the
judge knew of the jury’s numerical split when he in-
structed the jury to continue deliberating; (4) whether
any of the instructions implied that the jurors were
violating their oaths or acting improperly by failing to
reach a verdict; and (5) the time between the final sup-
plemental instruction and the jury’s verdict.
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20-11189 Opinion of the Court 27
Brewster v. Hetzel, 913 F.3d 1042, 1053 (11th Cir. 2019). The par-
ties agree that these are the right circumstances to analyze, but they
disagree about whether the totality of these circumstances compels
a finding that the jury was coerced.
Starting with the first two relevant circumstances, the Yehu-
das emphasize that deliberations lasted four days and that the jury
reported being deadlocked three times. We disagree that those cir-
cumstances weigh in the Yehudas’ favor. While four days of delib-
eration is a relatively long time, it is not alarmingly so in the con-
text of a complex, two-week trial. Neither is the number of times
the jury deadlocked especially high. In Brewster, where the jury
reported being deadlocked five times, we observed that “[o]ne or
two, or even three, instructions requiring a deadlocked jury to keep
on deliberating might not be a problem, depending on the sur-
rounding circumstances.” Id. at 1054.
And here, the other surrounding circumstances weigh to-
ward the instruction being proper. Particularly significant is that
the judge did not know of the jury’s numerical split when instruct-
ing the jury to keep deliberating. See id. (“Pressure on jurors, es-
pecially on holdout jurors, is increased when the instructions to
keep trying to reach unanimity come from a judge who knows how
split the jury is and in which direction.”). The Allen charge in
Brewster was particularly problematic because it was no secret that
there was one holdout juror. As a result, each time the judge told
the jury to keep an open mind and consider the views of fellow
jurors, he was, in effect, speaking directly to one juror and
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28 Opinion of the Court 20-11189
pressuring her to fall in line. Id. at 1055. In contrast here, the judge
never knew the split. For all the judge knew, the split might have
been 6-6, or might have favored either party. Because the Allen
charge did not target a single juror, the risk of coercion was dimin-
ished.
The last two circumstances point in the same direction. The
district court never implied that the jurors would violate their
oaths by failing to reach a verdict. But see id. at 1049 (disapproving
of the judge using the word “oath” nine times, admonishing the
jury: “[Y]ou took an oath. I take mine seriously. I hope you do the
same.”). And finally, the time the jury spent deliberating after the
Allen charge—about three hours—is not necessarily indicative of
coercion under our precedents. See United States v. Chigbo, 38
F.3d 543, 545–46 (11th Cir. 1994) (per curiam) (finding that fifteen
minutes of deliberation between the Allen charge and the verdict
did not indicate coercion); United States v. Norton, 867 F.2d 1354,
1366 (11th Cir. 1989) (finding that four hours of deliberation be-
tween the Allen charge and the verdict was “not suggestive of a
coercive or pressure-filled atmosphere”); United States v. Scruggs,
583 F.2d 238, 239–41 (5th Cir. 1978) (finding no coercion when the
jury deliberated for 48 minutes between the Allen charge and the
verdict).
Altogether, the totality of the circumstances does not indi-
cate that the district court abused its discretion by giving the Allen
charge. We thus affirm on this issue.
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20-11189 Opinion of the Court 29
2. Expert Witness’s Qualification
The Yehudas argue next that the district court erred by al-
lowing testimony from Rubinstein’s forensic document expert.
They argue that he was not qualified to testify. 4
At bottom, decisions to allow expert witnesses are commit-
ted to the sound discretion of district judges. Berdeaux, 528 F.2d at
990. And while that discretion is not limitless, the district court’s
decision to find the expert qualified in this case is supported by the
record. The witness had a bachelor’s degree in mathematics and a
master’s degree in technology management. He completed four
semesters of graduate work and received a certificate in forensic
document examination. He also attended seminars, gave lectures,
and published three books on the subject. On this basis, although
the district court described the expert’s credentials as “thin,” it was
within the court’s discretion to find that he was qualified. Given
4 The Yehudas argue that the district court itself came to this conclusion when
it stated: “I will not recognize him as an expert; I will recognize that [Rubin-
stein is] calling him as an expert.” But context paints a different picture. After
making this statement, the court requested a list of federal cases where the
witness testified in order to learn why those courts recognized him as an ex-
pert. The court identified a case from California where the witness was per-
mitted to testify, even though the parties identified similar issues with his cre-
dentials. Consistent with that case, the court allowed him to testify as an ex-
pert, acknowledging and rejecting the Yehudas’ objection that he was unqual-
ified. From this context, we conclude that the district court found the witness
qualified as an expert, despite its earlier statement.
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30 Opinion of the Court 20-11189
the limited scope of our review, we cannot say that this finding was
an abuse of discretion.
3. Punitive Damages Award
In the Yehudas’ final contention, they contest the punitive
damages award, making two arguments. First, punitive damages
should not have been awarded at all. Second, the punitive damages
award was so excessive that it violates due process. They say that
the $2.5 million in punitive damages exceeds their net worth and
would wipe out everything they have.
The Supreme Court has set three guideposts for determin-
ing whether punitive damages violate a defendant’s due process
rights: “(1) the degree of reprehensibility of the defendant’s con-
duct; (2) the disparity between the actual or potential harm suffered
by the plaintiff and the punitive damages award; and (3) the differ-
ence between the punitive damages awarded by the jury and the
civil penalties authorized or imposed in comparable cases.” Kemp
v. Am. Tel. & Tel. Co., 393 F.3d 1354, 1362 (11th Cir. 2004) (citing
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418
(2003)). The third guidepost is not relevant here because the par-
ties have not identified a civil penalty that could apply in a compa-
rable case. Therefore, our analysis turns on the first two guide-
posts.
Five sub-factors are relevant to the first guidepost, the de-
gree to which the defendant’s conduct was reprehensible. Camp-
bell, 538 U.S. at 419. We must consider whether (1) the harm
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20-11189 Opinion of the Court 31
caused was physical or economic; (2) the defendant’s conduct
showed indifference to or reckless disregard of health or safety; (3)
the target of the conduct was financially vulnerable; (4) the conduct
involved repeated actions; and (5) “the harm was the result of in-
tentional malice, trickery, or deceit” rather than accident. Id.Rubinstein contends that the last two sub-factors weigh in
his favor, and we agree. There was evidence at trial that the Yehu-
das repeatedly engaged in deceitful conduct to convert Rubin-
stein’s property. This conduct included: forging documents, filing
fraudulent annual reports, providing false information to
Oceanside’s accountant, and making false representations to the
buyers of the hotel. The other three sub-factors weigh in the Ye-
hudas’ favor: the harm caused was economic rather than physical,
the Yehudas’ conduct did not pose a health or safety risk, and there
was no evidence that Rubinstein was financially vulnerable.
A finding of reprehensibility, however, can rest on just two
sub-factors—though the plaintiff might be entitled to a relatively
smaller punitive damages award in such a case. See Campbell, 583
U.S. at 419 (“The existence of any one of these factors weighing in
favor of a plaintiff may not be sufficient to sustain a punitive dam-
ages award; and the absence of all of them renders any award sus-
pect.”). Here, there is sufficient evidence on the fourth and fifth
sub-factors to support a finding that the Yehudas’ conduct was at
least moderately reprehensible.
The second guidepost has us look to the ratio between com-
pensatory and punitive damages. As a rule of thumb, “a 4:1 ratio
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32 Opinion of the Court 20-11189
will typically be close to the line of constitutional propriety and [ ]
few awards exceeding a single-digit ratio to a significant degree will
satisfy due process.” Williams v. First Advantage, 947 F.3d at 763.
Yet the Supreme Court has sanctioned much higher ratios where a
“particularly egregious act has resulted in only a small amount of
economic damages.” Id. at 749 (citing Campbell, 538 U.S. at 425);
see, e.g., TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 459,
462 (1993) (plurality of the Court upholding a punitive damages
award that was 526 times the amount awarded in compensatory
damages); Kemp, 393 F.3d at 1365 (allowing punitive damages of
$250,000 where compensatory damages were only $115).
Most instructive here is our recent decision in Williams v.
First Advantage, a Fair Credit Reporting Act case. There, the jury
awarded $250,000 in compensatory damages and thirteen times
that amount—$3.3 million—in punitive damages. Williams v. First
Advantage, 947 F.3d at 744. After finding that three out of five rep-
rehensibility sub-factors weighed in the plaintiff’s favor, we con-
cluded that the “[d]efendant’s conduct was sufficiently reprehensi-
ble to warrant some amount of punitive damages,” although the
conduct “was clearly not at the highest level of reprehensibility.”
Id. at 754. Next, we held that the punitive damages award was con-
stitutionally excessive. Id. at 762. We reduced the award to $1
million (a 4:1 ratio), reasoning that ratios exceeding single digits
should be reserved for exceedingly reprehensible conduct. Id. at
765–66.
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20-11189 Opinion of the Court 33
As in Williams v. First Advantage, the defendants’ conduct
here does not reach the highest level of reprehensibility. But the
ratio of punitive to compensatory damages—roughly 1.7:1 before
the reduction for failure to mitigate and 2.5:1 after the reduction—
is lower than what we approved in that case and fits comfortably
within the Supreme Court guidepost. Because Supreme Court
guidance and our own precedent support the validity of the puni-
tive damages award, we do not find it to be constitutionally exces-
sive.
C. Mitigation of Damages on Cross-Appeal
Finally, we consider Rubinstein’s cross-appeal. Again, be-
fore jumping to the merits, we must examine our jurisdiction. The
rules of appellate procedure require the appellee to file a cross-ap-
peal within 14 days of the notice of appeal. Fed. R. App. P.
4(a)(1)(A). Because Rubinstein’s cross-appeal was filed 15 days after
the Yehudas’ notice of appeal, it was untimely. Yet the Yehudas
raised no objection. The question, then, is whether the rule gov-
erning timeliness of cross-appeals is a jurisdictional rule or a claims-
processing rule that can be waived if unobjected to.
We have held that the rule is jurisdictional. See Hollins v.
Dep’t of Corr., 191 F.3d 1324, 1326 (11th Cir. 1999). Under our
prior panel precedent rule, that holding remains binding “unless
and until [it] is overruled by [our] Court sitting en banc or by the
Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8
(11th Cir. 2001). Five years ago, however, the Supreme Court ad-
dressed whether the rules of appellate procedure are jurisdictional.
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34 Opinion of the Court 20-11189
See Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct.
13, 21 (2017). At issue in Hamer was Rule 4(a)(5)(C), which limits
a district court’s authority to extend the notice of appeal filing dead-
line. Id. at 18. The Supreme Court explained that several Courts
of Appeals had erred in holding that “the taking of an appeal within
the prescribed time is ‘mandatory and jurisdictional.’” Id. at 21.
Time prescriptions, the Court held, are not jurisdictional where
they are “absent from the U.S. Code.” Id. “Because Rule
4(a)(5)(C),” rather than a statute, “limit[ed] the length of the exten-
sion granted,” the time prescription was not jurisdictional. Id.Though our prior panel precedent rule is muscular, and we
have enforced it rigorously, it is clear that Hamer abrogated our
circuit precedent. Because the timeliness of cross-appeals is gov-
erned by court-imposed, rather than Congressionally-imposed
rules, it is not jurisdictional. See id. at 17; see also In re IPR Licens-
ing, Inc., 942 F.3d 1363, 1372 (Fed. Cir. 2019) (recognizing, without
convening en banc, that Hamer abrogated a Federal Circuit deci-
sion holding that Rule 4(a)(1)(A) is jurisdictional). We therefore
have jurisdiction to hear the cross-appeal. And though it was filed
a day late, we will consider it because the Yehudas raised no objec-
tion.
That brings us to the merits of the cross-appeal. The jury
reduced Rubinstein’s damages by $500,000 for his failure to take
action that could have prevented the sale of the hotel. Rubinstein
argues that his inaction did not amount to a failure to mitigate dam-
ages. Under Florida law, mitigation of damages—also called
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20-11189 Opinion of the Court 35
avoidable consequences—is typically directed at a plaintiff’s action
or inaction that occurs after the defendant’s wrongful act and mag-
nifies the resulting damages. Parker v. Montgomery, 529 So. 2d
1145, 1147 (Fla. Dist. Ct. App. 1988). As a paradigmatic example,
“a plaintiff’s failure to mitigate the effects of a broken leg by failing
to obtain proper medical care after the accident may lessen his re-
covery for the subsequent aggravated condition of the leg.” See
Ridley v. Safety Kleen Corp., 693 So. 2d 934, 942 (Fla. 1996). This
doctrine is different than comparative negligence, which generally
involves a plaintiff’s ability to have avoided injury in the first place.
See id.To be sure, the Florida Supreme Court held in Ridley that
the distinction between the two doctrines dissolves in auto acci-
dent cases where the plaintiff did not wear a seatbelt. See id. at 943.
But the Ridley court expressly limited its holding to “the single is-
sue” presented in that case: “whether a person’s failure to use a seat
belt has contributed to her injuries.” Id. Outside of that context, it
remains the rule that mitigation of damages applies to a plaintiff’s
conduct that comes after a defendant’s tortious conduct. See Co-
quina Invs. v. Rothstein, 2011 WL 4971923, at *16 (S.D. Fla. 2011),
aff’d sub nom. Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300 (11th
Cir. 2014).
Rubinstein says that the Yehudas’ tortious conduct was in-
complete until they sold the hotel in 2017, after which he promptly
sued. Any alleged inaction before the hotel sale is thus irrelevant,
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36 Opinion of the Court 20-11189
Rubinstein argues. 5 The Yehudas do not contest that mitigation of
damages applies only to a plaintiff’s action or inaction that occurred
after a defendant’s tortious conduct. They argue, however, that
Rubinstein’s cause of action for fraud would have accrued in 2013
when the Yehudas allegedly misrepresented the permanency of
their assignment to Rubinstein. And as to the conversion claim,
the Yehudas began holding themselves out as owners of the hotel
by late 2015. They argue that Rubinstein knew what was going on
during 2016 and 2017, yet remained silent. As a result, the argu-
ment goes, he failed to mitigate damages by failing to prevent the
sale of the hotel.
Again, we agree with Rubinstein. The instruction on miti-
gation of damages should not have been submitted to the jury be-
cause the evidence did not show that Rubinstein’s inaction oc-
curred after the Yehudas’ wrongdoing and served to increase the
damages he sustained. See Parker, 529 So. 2d at 1147. True, the
Yehudas’ tortious conduct began well before the sale of the hotel.
Their efforts to convert Rubinstein’s interest in Oceanside, for ex-
ample, began as early as November 2015 when they filed docu-
ments with the State of Florida. But those filings did not complete
the Yehudas’ efforts to convert Rubinstein’s majority ownership in-
terest. Rather, the Yehudas took a series of actions—filing annual
5 Rubinstein offers a few alternative arguments that we need not reach: that
the instruction was phrased incorrectly and that failure-to-mitigate is a defense
to conversion only when the defendant offers to return the stolen property.
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20-11189 Opinion of the Court 37
statements, forging documents, opening bank accounts, and so
forth—to wrest control of that interest, and those efforts culmi-
nated in the hotel sale. There was no evidence that, once those
efforts succeeded, the resulting damages were magnified by Rubin-
stein’s inaction. Nor would it make any sense to say that Rubin-
stein’s failure to stop the Yehudas from converting his property was
a failure to mitigate his fraud damages.
To put it simply, the sale of the hotel did not aggravate dam-
ages Rubinstein had already sustained. We hold, consequently,
that the district court erred in submitting this issue to the jury. The
$500,000 that was subtracted from Rubinstein’s compensatory
damages should be reinstated, bringing the total compensatory
damages award to $1.5 million.
IV. Conclusion
In conclusion, we hold the following. One, the district court
had subject matter over this action, and we have jurisdiction over
this appeal. Two, none of the issues raised by the Yehudas on ap-
peal warrant reversal. And three, on Rubinstein’s cross-appeal, the
district court erred in giving a failure-to-mitigate instruction to the
jury. We thus reinstate the $500,000 that the jury subtracted from
the compensatory damages award.
AFFIRMED IN PART; REVERSED AND REMANDED IN
PART.