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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12650
Non-Argument Calendar
____________________
ROBERT A. HEGHMANN,
BEATRICE M. HEGHMANN,
Plaintiffs-Appellants,
versus
DJAMEL HAFIANI,
MARY HAFIANI,
MIRIAM HAFIANI,
JAMEL JOSEPH HAFIANI,
JULIA SARAH HAFIANI,
THE TOWN OF RYE, N.H., et al.,
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2 Opinion of the Court 21-12650
Defendants-Appellees,
THE HAFIANI FAMILY TRUST, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-00670-BJD-JBT
____________________
Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
In 2020, Robert and Beatrice Heghmann (“the Heghmanns”)
filed a civil action against the Hafiani family, the Town of Rye, New
Hampshire, and John Does and Mary Roes 1 through 6,000, who
were unknown residents of the Town of Rye (“the Residents”).
The Heghmanns alleged that in 2003, these defendants violated
automatic stays from Robert and Beatrice’s individual bankruptcy
proceedings. The Heghmanns sought a declaratory judgment that
the defendants violated the automatic stays, an award of
compensatory and punitive damages, and attorney’s fees and costs.
The district court granted the Hafiani defendants’ motions to
dismiss on the grounds that the Heghmanns failed to state a claim
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21-12650 Opinion of the Court 3
against Miriam Hafiani, and that the Heghmanns’ claim against the
other Hafianis was barred by res judicata. The district court also
granted the Town of Rye’s motion to dismiss for lack of personal
jurisdiction. On appeal, the Heghmanns argue that the district
court erred in dismissing their action for various reasons. After
review, we affirm.
I. Background
According to the Heghmanns’ complaint, in late 2002, they
rented a house in the Town of Rye, New Hampshire, from Djamel
Hafiani. In January 2003, the Heghmanns fell behind on their
rental payments. Djamel initiated an action in landlord tenant
court, and a New Hampshire court ordered the Heghmanns to pay
the past due rent, no later than March 3, 2003, and, if they did not
do so, then a writ of possession would issue on March 17, 2003.
The Heghmanns did not pay the past due rent. Instead, on
March 13, 2003, Robert Heghmann filed a Chapter 13 bankruptcy
petition, which triggered an automatic stay. 1 Robert Heghmann
then informed Djamel’s counsel of the bankruptcy filing.
However, no one notified the New Hampshire state court of the
1 Upon the filing of a bankruptcy petition, “all legal or equitable interests of
the debtor in property” as of the filing of the petition become part of the
bankruptcy estate, with certain exceptions not applicable here. See
11 U.S.C.
§ 541. And actions against a debtor or property of the bankruptcy estate
become subject to an automatic stay when the bankruptcy petition is filed.
Id.
§ 362.
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4 Opinion of the Court 21-12650
bankruptcy filing, and it issued a writ of possession. Nevertheless,
the Town of Rye Sheriff’s Office delayed enforcement of the writ
after being informed of the bankruptcy proceedings.
Robert Heghmann’s bankruptcy proceeding was dismissed
on May 21, 2003. Djamel Hafiani advised the New Hampshire
court that the bankruptcy proceeding had been dismissed, and the
court reissued a writ of possession based on its prior March 3, 2003
order. Based on the writ of possession, the Sheriff’s Office issued a
notice of eviction, which gave the Heghmanns 24 hours to vacate
the residence. Robert Heghmann informed the Rye police
executing the writ that the eviction was in violation of the
automatic stay and was illegal, but he was ignored. The
Heghmanns vacated the residence and took what belongings they
could, but they had to leave a number of their possessions behind.
Robert Heghmann then filed a motion to set aside the
bankruptcy dismissal and a motion for contempt against Djamel
and his counsel for alleged violations of the automatic stay in the
bankruptcy court. Heghmann v. Town of Rye, No. 04-100-SM,
2005 WL 637928, *2 (D.N.H. March 18, 2005). The bankruptcy
court denied both motions, and Heghmann did not appeal.
Id.
Meanwhile, Beatrice Heghmann filed a petition for Chapter
13 bankruptcy, which triggered another automatic stay. However,
despite her pending bankruptcy petition, after retaking possession
of the residence, Djamel and his then minor children, Miriam,
Jamal, and Julia sold a great deal of the Heghmanns belongings at
yard sales to unknown residents of the Town of Rye. As a result,
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Beatrice Heghmann filed motions for implementation of the
automatic stay—allowing her to return the residence and requiring
Djamel to return their possessions—and a motion for contempt
seeking compensatory and punitive damages for Djamel’s
violations of the automatic stay in Robert’s case and in her case.
See In re Heghmann,
316 B.R. 395, 399 (B.A.P. 1st Cir. 2004).
The bankruptcy court refused to consider Beatrice’s
arguments related to the alleged violations of the automatic stay in
her husband’s prior bankruptcy proceeding, explaining that such
violations “may not be prosecuted in a subsequent bankruptcy
case.”
Id. at 399 n.4. However, it determined that Djamel violated
the automatic stay in Beatrice’s bankruptcy proceedings when he
sold the Heghmanns’ belongings at the yard sales.
Id. at 399–400.
It ordered Djamel to pay $1,200 in actual damages for the sale of
the Heghmanns’ property.
Id. at 400, 405. It declined to award
punitive damages.
Id. at 406. A Bankruptcy Appellate Panel of the
First Circuit affirmed on appeal. 2
Id. at 401–406. Notably, the
Bankruptcy Appellate Panel rejected on the merits Beatrice’s
claims concerning the violation of the automatic stay in Robert’s
case, explaining that “the writ of possession and subsequent
eviction did not violate the automatic stay as no stay was in place
2 The judicial council of each circuit is authorized to establish a bankruptcy
appellate panel composed of “bankruptcy judges of the districts in the circuit
who are appointed by the judicial council” to hear appeals from the
bankruptcy court.
28 U.S.C. § 158(b)(1). The First Circuit has established such
a panel.
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at that time—Robert Heghmann’s case had been dismissed and
Beatrice Heghmann’s case had not yet been filed.”
Id. at 401.
Thereafter, in March 2004, Robert Heghmann filed a
complaint in the United States District Court for New Hampshire
against Djamel Hafiani, the Town of Rye, and various others,
alleging that the defendants violated the automatic stay in his
bankruptcy proceedings when they (i) sought to enforce the writ
of possession issued in March 2003, (ii) obtained a new writ of
possession after his bankruptcy case was dismissed, and then (iii)
enforced said writ. Heghmann v. Town of Rye,
326 F. Supp. 2d
227, 232 (D.N.H. 2004). He also sought “an order requiring the
defendants ‘to take immediate steps to undue [sic] the damage they
have done by their past violations of the automatic stay.’”
Id. The
district court concluded that it lacked subject matter jurisdiction to
hear claims involving alleged violations of the automatic stay.
Heghmann v. Town of Rye, No. 04-100-SM,
2004 WL 2526417, at
*4, 6 (D.N.H. Nov. 8, 2004). Rather, “the proper forum in which
to advance claims involving alleged violations of the automatic stay
[was in] the bankruptcy court.” 3
Id. at *6.
3 The district court also noted that:
Mr. Heghmann is an attorney, admitted to practice before the
federal district courts in New York and Connecticut, the Court
of Appeals for the Second Circuit, and the United States
Supreme Court. Heghmann v. Fermanian,
2000 WL 1742122
at * 1, n. 1 (D.Me. Nov.27, 2000). He is no stranger to pro se
litigation, at least some of which has been meritless. See
id. at
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Almost two decades later, in June 2020, the Heghmanns filed
the underlying pro se complaint in the Middle District of Florida
against Djamel Hafiani, his ex-wife Mary, and their now-adult
children Miriam, Jamal, and Julia, 4 as well as the Town of Rye,
New Hampshire, and its residents for alleged violations of the 2003
automatic stay in both of the Heghmanns’ bankruptcy
proceedings.5 Specifically, the Heghmanns alleged that Djamel
Hafiani violated the automatic stay in Robert Heghmann’s
bankruptcy proceeding when he (1) failed to advise the New
*4 (awarding sanctions against Heghmann and concluding that
his “claims in this action were without merit from the
beginning and would have been perceived as such by any
objectively reasonable attorney.”). Nor is this the first time
that litigation has flowed from Heghmann’s failure to honor
rent and/or mortgage obligations. See Connecticut Sav. Bank
v. Heghmann,
193 Conn. 157,
474 A.2d 790 (1984).
Heghmann v. Town of Rye, No. 04-100-SM,
2004 WL 2526417, at *1 n.1
(D.N.H. 2004). Because Robert Heghmann is a licensed attorney, his
pleadings are not entitled to the liberal construction normally afforded pro se
litigants. See Olivares v. Martin,
555 F.2d 1192, 1194 n.1 (5th Cir. 1977).
4 The Hafianis now live in Florida.
5 The Heghmanns explain in their brief before this Court that for eighteen
years, they
have been searching for a District Court where not only does
the Circuit Court permit the exercise of subject matter
jurisdiction in cases involving violations of the Automatic Stay
but more importantly where state law procedures permit the
exercise of quasi in rem garnishment of the New Hampshire
defendants’ property without an onerous cash bond.
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8 Opinion of the Court 21-12650
Hampshire court in March 2003 of the filing of Robert’s bankruptcy
petition; (2) obtained a writ of possession; (3) attempted, albeit
unsuccessfully, to have the Sheriff’s Office execute the writ; and
(4) improperly obtained a new writ of possession following the
dismissal of Robert’s bankruptcy proceedings (Counts 1–4). They
alleged that Djamel, the Town of Rye, and its residents violated the
automatic stay in Robert Heghmann’s bankruptcy case when the
sheriff’s office executed the void writ of possession and evicted the
Heghmanns (Count 5). Further, they alleged the Town of Rye and
its residents violated the automatic stay in Robert’s bankruptcy
proceeding when the town failed to have a procedure in place for
all municipal officers to follow when a claim is made that the
officers’ actions violate an automatic stay (Count 6).
Next, the Heghmanns alleged that Djamel, his ex-wife Mary,
and their children violated the automatic stay in Beatrice
Heghmann’s bankruptcy proceeding when they improperly seized
the Heghmanns’ property left at the residence (Count 7). They also
alleged that the Hafiani family violated the automatic stay in
Beatrice’s bankruptcy proceeding when they sold the Heghmanns’
property at yard sales, and the residents of the Town of Rye
violated the stay when they bought the property at the yard sales
(Count 8). Finally, the Heghmanns alleged that because the
bankruptcy court found that the yard sales violated the stay, it
triggered a duty on the defendants to undo the damage and restore
the Heghmanns to “the status quo” prior to the violation. Thus,
they claimed that the Hafianis and the Town of Rye and its
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21-12650 Opinion of the Court 9
residents violated the automatic stay—and continue to do so—
because they have taken no action to fulfill this duty (Count 9).
Miriam Hafiani moved to dismiss the complaint for failure
to state a claim. She asserted that the Heghmanns failed to allege
how she can be subject to a claim when she was a minor of 14 years
old at the time of the actions at issue. Additionally, she alleged that
the Heghmanns had failed to include any allegations linking her to
the lease, the bankruptcy orders, or the automatic stays. In
response, the Heghmanns argued that they were not suing for a
violation of the automatic stay that happened when she was a
minor in 2003, but rather, they were suing her for a continuing
violation because she had a duty to undo the damages caused by
the violation and continued to take no action to do so.
Djamel, Julia, Mary, and Jamal also moved to dismiss. 6
They argued, in relevant part, that the claims should be dismissed
for lack of subject matter jurisdiction and for failure to state a claim
because the Heghmanns’ claims were barred by res judicata. In
response, the Heghmanns argued that, under Eleventh Circuit
precedent, the district court had subject matter jurisdiction over
the claims. They also argued that res judicata did not apply because
they were seeking damages for the ongoing violation of the
automatic stay based on the bankruptcy court’s findings that
Djamel—and by extension his family members—violated the
6 The Hafianis attached numerous records from the bankruptcy proceedings
and prior district court proceedings to the motion to dismiss.
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10 Opinion of the Court 21-12650
automatic stay when he sold the Heghmanns’ belongings, but the
Hafianis continued to take no action to undo the damage.7
Finally, the Town of Rye moved to dismiss, arguing that the
district court lacked personal jurisdiction over it. It argued that all
of the complained of actions took place in New Hampshire and the
Heghmanns failed to allege any facts connecting it with Florida. It
also argued that exercising jurisdiction would not comport with
“traditional notions of fair play and substantial justice” because of
the cost to Rye of litigating in Florida, the apparent
forum-shopping of the Heghmanns, the lack of any nexus between
the actual events and the State of Florida, and the fact that the
Heghmanns had access to effective relief in New Hampshire. In
response, the Heghmanns argued that they were not seeking to
exercise in personam jurisdiction over the Town of Rye and its
residents. Rather, they were seeking quasi in rem jurisdiction over
the Town of Rye and its residents.
7 The Heghmanns asserted that the bankruptcy court’s award of $1,200 in
actual damages and denial of punitive damages for the violation of the
automatic stay did not have preclusive effect because when Djamel and his
family violated the stay they effectively committed the common law torts of
conversion and intentional infliction of mental and emotional distress,
entitling the Heghmanns to damages—issues which a bankruptcy Article I
judge is without authority to decide.
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21-12650 Opinion of the Court 11
After concluding that it had subject matter jurisdiction,8 the
district court granted all three motions to dismiss. First, the district
court concluded that the Heghmanns failed to state a plausible
claim against Miriam Hafiani because they did not allege that she
knew of the stay and intentionally violated it—and without such
allegations, the district court could not “even consider the
additional layer of allegations that [she] continued to violate the
automatic stay for failing to ‘undo’ damage allegedly caused by the
violation of the automatic stay.” Second, the district court
concluded that the claims against Djamel were barred by res
judicata.
As to the remaining claims against Mary, Jamal, and Julia
Hafiani (Counts 7–9), the district court found that these claims
were due to be dismissed because (1) the Heghmanns made no
specific allegations that Mary, Jamel, or Julia knew of the automatic
stay and intentionally violated it, (2) res judicata barred these
claims because they could have been brought in prior litigation,
8 The district court concluded that it had subject matter jurisdiction over
claims for violation of an automatic stay. See Just. Cometh, Ltd. v. Lambert,
426 F.3d 1342, 1343 (11th Cir. 2005) (holding that “the explicit . . . grant of
original jurisdiction” in
28 U.S.C. § 1334 over cases arising under Title 11
“clearly forecloses a conclusion that the district court lacked subject matter
jurisdiction” over claims for damages caused by a violation of the automatic
stay in a bankruptcy proceeding). Accordingly, we have subject matter
jurisdiction to hear this appeal as well.
Id.
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and (3) the pleading was deficient because it failed to afford those
defendants notice of the specific allegations against them.9
Finally, the district court dismissed the claims against the
Town of Rye and its residents because it lacked in personam
jurisdiction under Florida’s long-arm statute and exercising
jurisdiction would offend the traditional notions of fair play and
justice. The Heghmanns timely appealed.
II. Discussion
A. Whether the district court erred in dismissing the
claims against the Hafianis
The Heghmanns argue that the district court erred in
dismissing the claims against the Hafianis for various reasons,
including that the claims were not precluded by res judicata and
that the defendants waived any claim that the complaint failed to
state a claim because it did not allege that the defendants had
knowledge of the stay. The Heghmanns maintain that the
bankruptcy court’s finding of a violation of the automatic stay has
preclusive res judicata effect and triggered an ongoing duty upon
Djamel and those in privity with him10 to take actions “to restore
9 The district court also noted that although there was no statute of limitations
for bringing a claim for violation of an automatic stay, the 17-year delay in
bringing these claims was “concern[ing].”
10 The Heghmanns argue that Djamel’s children were in privity with him
because they were present during the yard sales and “had their pick” of the
Heghmanns’ property. And they argue that Djamel’s ex-wife, Mary, was in
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21-12650 Opinion of the Court 13
the status quo ante the violation,” and the defendants have taken
no remedial action for the past 17 years.
We review de novo a dismissal for failure to state a claim
upon which relief may be granted, “accepting the allegations in the
complaint as true and construing them in the light most favorable
to the plaintiff.” Leib v. Hillsborough Cnty. Pub. Transp. Comm’n,
558 F.3d 1301, 1305 (11th Cir. 2009).
i. Claims against Djamel
The Heghmanns argue that the district court erred in its res
judicata analysis as to the claims against Djamel. Additionally, they
argue that the bankruptcy court did not have before it the claim for
a continuing violation, as that claim did not arise until the
bankruptcy court issued its judgment, and, therefore, it was not
barred by res judicata.
We review de novo the district court’s determination that a
claim is barred by res judicata. See Jang v. United Tech. Corp.,
206
F.3d 1147, 1149 (11th Cir. 2000). Res judicata “bar[s] a subsequent
action if: (1) the prior decision was rendered by a court of
competent jurisdiction; (2) there was a final judgment on the
privity because she was the legal guardian of the children and “responsible for
their conversion of the property.” Finally, the Heghmanns maintain that the
Town of Rye and its residents were in privity because but for the Town of
Rye’s actions (via the execution of the writ of possession), the Hafianis would
not have obtained possession of the Heghmanns’ property, and under New
Hampshire law, the residents of a municipality “are liable for the
transgressions of the town government.”
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14 Opinion of the Court 21-12650
merits; (3) the parties were identical in both suits; and (4) the prior
and present causes of action are the same.”
Id. (quotation omitted).
“[I]f a case arises out of the same nucleus of operative facts, or is
based upon the same factual predicate, as a former action, . . . the
two cases are really the same ‘claim’ or ‘cause of action’ for
purposes of res judicata.” Griswold v. Cnty. of Hillsborough,
598
F.3d 1289, 1293 (11th Cir. 2010) (quotation omitted) (alteration in
original).
The district court did not err in determining that res judicata
barred the claims against Djamel. Counts One through Five for
Djamel’s alleged violations of the automatic stay in Robert’s case
are precluded by the Bankruptcy Appellate Panel of the First
Circuit’s 2004 decision, which determined that “the writ of
possession and subsequent eviction did not violate the automatic
stay as no stay was in place at that time—Robert Heghmann’s case
had been dismissed and Beatrice Heghmann’s case had not yet
been filed.” In re Heghmann,
316 B.R. at 401–02.
Similarly, Counts Seven and Eight for violations of the
automatic stay in Beatrice’s case when Djamel sold the
Heghmanns’ property at yard sales are also precluded by the same
decision because the Bankruptcy Appellate Panel affirmed the
bankruptcy court’s order for Djamel to pay $1,200 in actual
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21-12650 Opinion of the Court 15
damages for violating the automatic stay in Beatrice’s case.11 See
id. at 404–06.
Finally, Count Nine is precluded because they could have
alleged a continuing violation in Beatrice’s bankruptcy proceeding
through the filing of a contempt action in the past 17 years, but
they did not. 12 See Maldonado v. U.S. Att’y Gen.,
664 F.3d 1369,
1377 (11th Cir. 2011) (explaining that “[r]es judicata acts as a bar
not only to the precise legal theory presented in the previous
11 The Heghmanns’ argument that their claims in the underlying complaint
were for the common law tort of conversion, and, thus, were different from
the claims in the prior bankruptcy proceeding is meritless. Each of the nine
counts in the complaint were for “violation of the automatic stay,” citing
11
U.S.C. § 362(a)—the same exact claims resolved in the prior bankruptcy
decision in the First Circuit.
12 Although Congress did not enact a statute of limitations for claims
involving willful violations of an automatic stay, we agree with the district
court that the Heghmanns’ 17-year delay in filing the underlying complaint
while they admittedly forum shopped for a court that would hear their case is
gravely concerning. Under these circumstances, we conclude that, even if the
Heghmanns’ claims were not barred by res judicata, they would be barred by
the doctrine of laches. See Thornton v. First State Bank of Joplin,
4 F.3d 650,
653 (8th Cir. 1993) (explaining that “[w]hile delay alone does not automatically
constitute laches, if a plaintiff's delay (1) is unreasonable and unexplained and
(2) has disadvantaged the defendant, laches may apply,” and upholding
application of the doctrine where the debtor waited four years after
discovering the violation and two years after bankruptcy proceedings
concluded to file his complaint, without explanation for the delay). In the
Heghmanns’ case, the only reason for the delay in filing the underlying
complaint was their admitted forum shopping, which further demonstrates
why application of the doctrine of laches is appropriate.
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16 Opinion of the Court 21-12650
litigation, but to all legal theories and claims arising out of the same
operative nucleus of fact.” (quotation omitted)); see also In re
Harrison,
599 B.R. 173, 183 (Bankr. N.D. Fla. 2019) (explaining that
contempt is the “appropriate remedy” for willful violations of an
automatic stay). Accordingly, the district court correctly
determined that the Heghmanns’ claims against Djamel were
barred by res judicata.
ii. Claims against the remaining Hafianis
With regard to the claims against Miriam, Mary, Julia, and
Jamal Hafiani, the Heghmanns argue that the Hafianis did not
assert in their motions to dismiss that the complaint failed to allege
that they knew of the automatic stay; therefore, they waived this
defense and the district court erred in relying on it as a basis for the
dismissal. However, the Heghmanns fail to challenge another
ground on which the district court based its dismissal—that the
complaint was “deficient in that the[] counts make assertions
against these Defendants collectively and do not afford each
Defendant notice as to the specific allegations made as to each
Defendant.” “When an appellant fails to challenge properly on
appeal one of the grounds on which the district court based its
judgment, he is deemed to have abandoned any challenge of that
ground, and it follows that the judgment is due to be affirmed.”
Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir.
2014). Accordingly, we affirm the district court’s dismissal of the
claims against the remaining Hafianis.
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B. Whether the district court erred in dismissing the
complaint against the Town of Rye for lack of personal
jurisdiction
The Heghmanns argue that the district court erred in
dismissing the claims against the Town of Rye because the district
court failed to recognize that “jurisdiction over the Town of Rye
was never in personam, it was always quasi in rem.” The problem
for the Heghmanns is that, even if they were proceeding under
quasi in rem jurisdiction, the district court would lack jurisdiction
because the Heghmanns did not allege that the Town of Rye has
any property in Florida for purposes of quasi in rem jurisdiction.
See Shaffer v. Heitner,
433 U.S. 186, 199 & n.17 (1977) (explaining
that in rem and quasi in rem jurisdiction are “based on the court’s
power over property within its territory”); World Wide Supply OU
v. Quail Cruises Ship Mgmt.,
802 F.3d 1255, 1259–60 (11th Cir.
2015) (explaining that quasi in rem jurisdiction involves an action
“against a party who is not personally present in the district but
whose property is present”).
Furthermore, the Heghmanns do not challenge the district
court’s determination that it lacked in personam personal
jurisdiction. Accordingly, they abandoned any challenge of that
ground, and we affirm the dismissal of claims against the Town of
Rye for lack of personal jurisdiction. Sapuppo, 739 F.3d at 680.
AFFIRMED.
