Monica Patricia Lopez v. Ricky DeVito

USCA11 Case: 21-12273 Date Filed: 04/25/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12273
Non-Argument Calendar
____________________
MONICA PATRICIA LOPEZ,
Plaintiff-Appellant,
EVA FLORES,
Plaintiff,
versus
RICKY DEVITO,
MARK WILENSKY,
Officer of the Court,
JONATHAN WARRICK,
Defendants-Appellees,
USCA11 Case: 21-12273 Date Filed: 04/25/2022 Page: 2 of 9
2 Opinion of the Court 21-12273
JUDGE MEENU SASSER,
Florida State Judge in Palm Beach County
in Foreclosure Division, etal.,
Defendant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:17-cv-80726-DMM
____________________
Before JILL PRYOR, BRANCH, and EDMONDSON, Circuit
Judges.
PER CURIAM:
Plaintiff Monica Lopez, proceeding pro se, appeals the dis-
trict court’s orders (1) dismissing with prejudice Plaintiff’s pro se
civil action; and (2) denying Plaintiff’s motions to disqualify the dis-
trict court judge pursuant to 28 U.S.C. § 455. 1 No reversible error
has been shown; we affirm.
1 We read liberally appellate briefs filed by pro se litigants. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). We also construe liberally pro se
pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
USCA11 Case: 21-12273 Date Filed: 04/25/2022 Page: 3 of 9
21-12273 Opinion of the Court 3
I.
In June 2017, Plaintiff filed pro se this civil action challenging
the state-court foreclosure proceedings on her home. Plaintiff
named as defendants the state court judge who presided over Plain-
tiff’s state foreclosure proceedings (Florida State Court Judge
Meenu Sasser), the loan servicer, and the loan servicer’s lawyer.
In December 2017, the district court dismissed Plaintiff’s in-
itial complaint. The district court granted defendants’ motions to
dismiss after Plaintiff failed to respond to the motions despite hav-
ing been granted repeated extensions of time to do so. Plaintiff ap-
pealed that denial.
In Plaintiff’s first appeal before this Court, we concluded that
the district court had not made the necessary findings to support
the “drastic sanction” of dismissal with prejudice. We vacated the
dismissal of Plaintiff’s complaint and remanded for further pro-
ceedings. See Lopez v. De Vito, 824 F. App’x 683 (11th Cir. 2020)
(unpublished).
In October 2020, on remand, the district court reopened
Plaintiff’s case and set the case for trial. The district court also is-
sued a Pretrial Scheduling Order, setting forth the pretrial deadlines
for the case.
In May 2021, the district court sua sponte dismissed with
prejudice Plaintiff’s case based on Plaintiff’s clear pattern of delay
and on Plaintiff’s failure to comply with the district court’s orders.
USCA11 Case: 21-12273 Date Filed: 04/25/2022 Page: 4 of 9
4 Opinion of the Court 21-12273
The district court determined that the history of the protracted lit-
igation -- including Plaintiff’s repeated requests for extensions and
failure to comply with the district court’s established deadlines --
demonstrated that Plaintiff had “consistently acted with undue de-
lay and dilatory motive.” The district court found “no question
that Plaintiff has engaged in a clear pattern of delay.”
The district court also determined that no lesser sanction
than dismissal with prejudice would suffice. The district court ex-
plained that a “lesser sanction would be futile in light of Plaintiff’s
demonstrated disregard of court deadlines” and would result in un-
due prejudice to defendants. The district court said further that
“Plaintiff has demonstrated willful contempt through her refusal to
litigate this matter pursuant to a schedule and her refusal to comply
with court orders, and moreover her pattern of delay has rendered
the efficient management of this case impossible.”
The district court later denied Plaintiff’s motions for disqual-
ification under 28 U.S.C. § 455. This appeal followed.
II.
A.
We review for abuse of discretion the district court’s dismis-
sal of a case for failure to comply with the rules of the court. See
Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006).
“A district court has inherent authority to manage its own
docket so as to achieve the orderly and expeditious disposition of
cases.” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape
USCA11 Case: 21-12273 Date Filed: 04/25/2022 Page: 5 of 9
21-12273 Opinion of the Court 5
Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009) (quotation omitted).
The district court has authority under Fed. R. Civ. P. 41(b) to dis-
miss a case based upon a party’s failure to comply with court or-
ders. Id. We have said that the district court’s power to impose
the sanction of dismissal “is necessary . . . to prevent undue delays
in the disposition of pending cases and to avoid congestion in the
calendars of the District Court.” Id. Still, dismissal with prejudice
“is considered a drastic sanction” that may be imposed “as a last
resort” only when: “(1) a party engages in a clear pattern of delay
or willful contempt (contumacious conduct); and (2) the district
court specifically finds that lesser sanctions would not suffice.”
World Thrust Films v. Int’l Family Entm’t, Inc., 41 F.3d 1454, 1456
(11th Cir. 1995).
Under the circumstances presented in this case, the district
court abused no discretion in dismissing with prejudice Plaintiff’s
civil action. In its order of dismissal, the district court found explic-
itly both that Plaintiff engaged in a clear pattern of delay and that
no lesser sanction would suffice. The record supports each of these
findings.
In the seven months following the reopening of Plaintiff’s
case in the district court, Plaintiff moved ten times to extend the
district court’s established pretrial deadlines. The district court
granted Plaintiff six extensions but also warned Plaintiff repeatedly
that she needed to show good cause for future extensions and that
her failure to comply with the court’s orders could result in dismis-
sal of the case.
USCA11 Case: 21-12273 Date Filed: 04/25/2022 Page: 6 of 9
6 Opinion of the Court 21-12273
Plaintiff filed an eleventh motion for an extension of time in
late April 2021: a motion the district court described as a “general-
ized request for an extension of unidentified deadlines.” The dis-
trict court denied Plaintiff’s motion, noting that trial was scheduled
in less than a month and that the deadlines for discovery and for
mediation had already expired.
In the light of the parties’ ongoing difficulties working to-
gether to schedule mediation and to prepare a joint pretrial stipu-
lation, the district court referred the matter to a magistrate judge
for a settlement conference. The district court ordered the parties
“to cooperatively prepare and file a joint pretrial stipulation no
later than May 3, 2021” and said expressly that “[f]ailure to do so
will result in dismissal of this action with prejudice.” No joint pre-
trial stipulation was filed by the pertinent date. Plaintiff also moved
-- less than two weeks before trial and on the “eve of the scheduled
settlement conference” -- to reschedule the settlement conference
before the magistrate judge.
On this record, we cannot conclude that the district court
clearly erred in finding that Plaintiff engaged in a clear pattern of
delay. Nor did the district court err in determining that a lesser
sanction would not suffice. The district court had already granted
Plaintiff several extensions of time and had provided Plaintiff addi-
tional opportunities to comply with the district court’s orders and
to adhere to the district court’s schedule. Nevertheless -- and in the
face of express warnings about the risk of dismissal with prejudice
-- Plaintiff refused to comply with the district court’s orders,
USCA11 Case: 21-12273 Date Filed: 04/25/2022 Page: 7 of 9
21-12273 Opinion of the Court 7
continued to seek extensions unsupported by good cause, and
failed to pursue diligently her case. Given Plaintiff’s continuing
pattern of delay and refusal to cooperate nearly four years into the
litigation and only two weeks before trial, the district court deter-
mined reasonably that a lesser sanction would be futile.
B.
Plaintiff next challenges the district court’s denial of her 28
U.S.C. § 455 motions to disqualify Judge Middlebrooks. 2
We review for abuse of discretion the district court’s rulings
on a motion for recusal. See United States v. Bailey, 175 F.3d 966,
968 (11th Cir. 1999). We will affirm a judge’s refusal to recuse un-
less “the impropriety is clear and one which would be recognized
by all objective, reasonable persons.” Id. In determining whether
recusal is necessary, we ask “whether an objective, disinterested,
lay observer fully informed of the facts underlying the grounds on
which recusal was sought would entertain a significant doubt
about the judge’s impartiality.” See Parker v. Connors Steel Co.,
855 F.2d 1510, 1524 (11th Cir. 1988).
A district court judge “shall disqualify himself in any pro-
ceeding in which his impartiality might reasonably be questioned”
or “[w]here he has a personal bias or prejudice concerning a party.”
2 Plaintiff raises no substantive argument challenging the district court’s de-
nial of Plaintiff’s post-judgment motions for reconsideration; those denials are
not before us on appeal.
USCA11 Case: 21-12273 Date Filed: 04/25/2022 Page: 8 of 9
8 Opinion of the Court 21-12273
28 U.S.C. § 455(a), (b)(1). “Bias sufficient to disqualify a judge un-
der section 455(a) and section 455(b)(1) must stem from extrajudi-
cial sources, unless the judge’s acts demonstrate such pervasive bias
and prejudice that it unfairly prejudices one of the parties.” Bailey,
175 F.3d at 968 (quotations omitted).
On appeal, Plaintiff contends that disqualification under sec-
tion 455 was mandatory based upon Judge Middlebrooks’s per-
sonal relationship with Judge Sasser. In her motions to disqualify,
Plaintiff said that an unidentified lawyer told Plaintiff that Judge
Middlebrooks was “good friends” with Judge Sasser.
As evidence of Judge Middlebrooks’s purported bias, Plain-
tiff points to a statement made in the district court’s May 2018 or-
der denying reconsideration of the district court’s first order of dis-
missal. In the May 2018 order, Judge Middlebrooks rejected Plain-
tiff’s argument that Judge Sasser’s recusal in Plaintiff’s state-court
foreclosure proceedings (a recusal that occurred three weeks be-
fore the district court granted Judge Sasser’s motion to dismiss)
constituted “newly discovered evidence” warranting reconsidera-
tion. Judge Middlebrooks also added that “Judge Sasser recused
herself from presiding over a matter involving a party who had
filed a civil action against her. Plaintiff fails to show that Judge
Sasser’s recusal is evidence of any impropriety.”
Nothing about this statement evidences an improper bias.
Nor can we conclude that Plaintiff’s conclusory and untrustworthy
allegation on what Plaintiff heard about Judge Middlebrooks’s pur-
ported friendship with a fellow judge -- without more -- would
USCA11 Case: 21-12273 Date Filed: 04/25/2022 Page: 9 of 9
21-12273 Opinion of the Court 9
cause an objective layperson to question reasonably Judge Middle-
brooks’s impartiality. “A charge of impartiality must be supported
by facts,” not merely by rumors or innuendos. United States v.
Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986) (concluding no
recusal was necessary when a federal judge had “direct communi-
cations” with a state court judge who was presiding over a related
matter and when a newspaper article reported that the federal
judge was “angry”). Because Plaintiff has demonstrated no clear
objective impropriety, we affirm the district court’s denial of Plain-
tiff’s motions to disqualify.
AFFIRMED.