RDLG, LLC v. Fred Leonard, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1153

RDLG, LLC,

Plaintiff - Appellee,

v.

FRED M. LEONARD, JR., a/k/a Chip Leonard,

Defendant – Appellant,

and

RPM GROUP BROKERAGE, LLC; JESSICA LEWIS LEONARD; JASON
BENTON; NICK JAMES; DEXTER HUBBARD; GLENN G. GOLDAN; RPM
GROUP, LLC,

Defendants.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Dennis L. Howell,
Magistrate Judge. (1:10-cv-00204-DLH)

Argued: March 24, 2016 Decided: May 23, 2016

Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion. Senior Judge Davis
wrote an opinion concurring in the judgment.
ARGUED: John C. Hunter, JOHN C. HUNTER, ATTORNEY AT LAW,
Asheville, North Carolina, for Appellant. Ross Fulton, RAYBURN,
COOPER & DURHAM, P.A., Charlotte, North Carolina, for Appellee.
ON BRIEF: Benjamin E. Shook, RAYBURN, COOPER & DURHAM, P.A.,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

RDLG, LLC (“RDLG”) sued Fred M. Leonard, Jr.

(“Leonard”), raising state law fraud claims. The district court 1

entered default judgment in RDLG’s favor as a sanction for

Leonard’s misconduct during the pretrial conference. A jury

then considered the proper amount of damages resulting from the

default judgment and awarded RDLG $500,580.36.

Leonard now challenges the default judgment, asserting

it violated his right to due process, and the damages verdict,

contending the district court erred when instructing the jury.

We disagree on both counts. The default judgment complied with

due process, as it was imposed after the court provided Leonard

both clear warning that the sanction would result from further

misconduct and an opportunity to oppose imposition of the

sanction. And Leonard’s proposed jury instruction was properly

rejected as irrelevant to the issue submitted to the jury. We,

therefore, affirm the judgment below.

1 The parties consented to the jurisdiction of a United
States magistrate judge. See 28 U.S.C. § 636(c). As “the
magistrate judge was acting for the court, . . . we . . . refer
to [its] decisions as those of the district court.” Lee-Thomas
v. Prince George’s Cty. Pub. Schs., 666 F.3d 244, 247 n.2 (4th
Cir. 2012).

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 I.

A.

RDLG filed this diversity action in the United States

District Court for the Western District of North Carolina in

September of 2010. RDLG sued Leonard, a number of other

individuals, and some related business entities under state law,

alleging a pattern of fraudulent activity. The merits of the

fraud claims are not at issue in this appeal.

The events underlying this appeal began on May 2,

2012, when attorneys Terri Lankford and Seth Neyhart entered

appearances on behalf of Leonard and two business-entity

defendants. Both attorneys were still representing the same

three defendants on September 6, 2012, when the district court

entered an order scheduling a pretrial conference for October 3.

On September 30, just two business days before the

scheduled conference, Lankford and Neyhart filed a motion to

continue the pretrial conference and a separate motion to

withdraw as counsel. They explained that Leonard had not been

communicating with Lankford 2 or paying for her services, so

Lankford had informed Leonard that she would cease

representation as of September 1. She had waited until

2 Neyhart’s sole involvement to that point was that of local
counsel. He had not communicated directly with Leonard prior to
the morning of the pretrial conference.

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September 30 to move to continue the pretrial conference because

Leonard had represented to her that he intended to file for

bankruptcy (on behalf of himself and the business entities) no

later than September 28, 2012, 3 which would have obviated their

involvement in the impending conference. Lankford added that

she planned to be in Puerto Rico on October 3.

The district court denied the motion to continue and

the motion to withdraw the next day -- October 1. The court

ordered both Lankford and Neyhart to appear and represent

Leonard and the related business entities at the pretrial

conference and explained that either attorney’s absence would

result in a further order holding counsel in contempt.

On October 2, Lankford responded to the court’s order

by filing a declaration. The declaration expanded her

explanation of how she came to request a continuance so close to

the date of the pretrial conference. Lankford asserted that she

did not receive the district court’s October 1 order directing

her to appear at the pretrial conference under pain of contempt

until she had already left for Puerto Rico. But she assured the

court that both Leonard and Neyhart would appear at the pretrial

3 Neither Leonard nor his business organizations, in fact,
filed for bankruptcy prior to the pretrial conference. Leonard
did file for personal bankruptcy, but not until October 10, a
week after the conference. The two business entities never
filed for bankruptcy while this action was pending against them.

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conference in person, while she would be available to appear via

teleconference.

As promised, Leonard and Neyhart both appeared in

person. However, the pretrial conference did not go well.

Having anticipated that a bankruptcy stay would delay both the

conference and the trial, Leonard and his counsel were not

prepared for either.

Preparation aside, Neyhart worried that a potential

conflict of interest had arisen. He reported to the court that

Leonard was disputing some of Lankford’s representations in her

declaration and in the motion to continue. Neyhart asked the

court for time to clarify the scope and consequences of any

dispute between counsel and client. This request was denied.

During the pretrial conference, RDLG moved for

sanctions, citing Leonard’s lack of preparation. RDLG argued

that entry of a default judgment would be appropriate. See Fed.

R. Civ. P. 16(f)(1)(B), 37(b). Neyhart opposed, arguing a

warning from the court was required prior to imposing default

judgment as a sanction. The court took the motion under

consideration. But prior to concluding the conference, it

expressly stated on the record that it was considering striking

Leonard’s answer and entering default judgment.

Two days later, the district court imposed sanctions

pursuant to Federal Rule of Civil Procedure 16(f) and the

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court’s inherent power, finding that “the actions of Defendants

and their counsel at the pretrial conference and leading up [to]

the conference made a mockery of the judicial process.” RDLG,

LLC v. RPM Grp., LLC, No. 1:10-cv-204, 2012 WL 4755669, at *7

(W.D.N.C. Oct. 5, 2012). Leonard was fined “$2500.00 pursuant

to Rule 16(f)(l)(C)” and ordered to pay his fine “to the Clerk

of Court within five (5) days of the entry of [the court’s]

Order.” Id. at *5. The court warned, “failure . . . to comply

with this Order within the time frame set forth in this Order

will result in the Court striking the answer . . . and entering

default judgment.” Id. Neyhart was also assessed a $2,500

fine, and Lankford was assessed a $5,000 fine.

Separately, the district court raised the prospect of

imposing additional sanctions against Lankford and Neyhart

pursuant to Federal Rule of Civil Procedure 11 and directed

Lankford and Neyhart “to Appear at a hearing at 10:00 a.m. on

Thursday, October 11, 2012, . . . and SHOW CAUSE why they should

not be further sanctioned.” RDLG, LLC, 2012 WL 4755669, at *7.

October 10 -- the deadline for paying the assessed

fines -- came and went without Leonard attempting to pay his

fine. Instead, he filed for personal bankruptcy.

On the other hand, Lankford and Neyhart paid their

fines on time. They also appeared at the Rule 11 hearing on

October 11 as directed. Leonard, who had not been ordered to

7
attend the hearing, chose not to attend. Lankford and Neyhart

both presented evidence at the show cause hearing.

The court decided no additional sanctions should be

imposed on the two attorneys. It then turned to the previously

imposed Rule 16 sanction, which Leonard had failed to pay. That

failure, the district court decided, warranted striking

Leonard’s answer and entering default judgment against him. The

court reasoned, “It’s my belief that even though he’s filed

bankruptcy, the court ordered sanctions are not

excusable . . . . [I]t was [Leonard] who plotted and schemed to

cause a delay and continuance of this matter and to cause the

Court difficulty in trying to administer this case and prepare

it for trial.” J.A. 204-05. 4

The court followed up with a written order on October

24. The court recounted that its October 5 order cautioned that

failure to pay any assessed fine would result in default.

“Despite this warning,” the court observed, Leonard “failed to

comply with the Court’s Order.” J.A. 211. The court then found

Leonard more blameworthy than his attorneys, concluding,

“[Leonard] manipulated counsel” and “undermined counsel’s

ability to prepare for the Pretrial Conference and for the

4
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.

8
trial.” Id. at 211-12. The court determined sanctions less

drastic than default judgment “would be of no avail in this

matter.” Id. at 212.

B.

The default judgment resolved the issue of liability

but did not set an amount of damages. That determination

required a jury trial, which began on January 12, 2015. 5

At trial, Leonard requested that the jury be

instructed, “Actual damages recoverable by the plaintiff for

fraudulent misrepresentation are limited to the amount of money,

property, services, or credit obtained by defendant from

plaintiff by means of defendant’s fraudulent

misrepresentations.” J.A. 243. The court declined to do so,

and the jury subsequently returned a verdict for $500,580.36 in

damages. The district court entered judgment accordingly. This

timely appeal followed.

II.

Leonard challenges both the default judgment and the

damages jury instruction. We begin with the argument that the

entry of default judgment violated his due process rights.

5The case was stayed due to Leonard’s bankruptcy for much
of the period between the October 2012 pretrial conference and
January 2015 damages trial.

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 A.

Normally, “[w]e review the district court’s grant of

sanctions under [Federal] Rule [of Civil Procedure] 37,

including the imposition of a default judgment, for abuse of

discretion.” 6 Anderson v. Found. for Advancement, Educ. & Emp’t

of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998); see also

Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639,

642 (1976) (per curiam). “In the case of default, the ‘range of

discretion is more narrow’ than when a court imposes less severe

sanctions.” Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d

36, 40 (4th Cir. 1995) (quoting Wilson v. Volkswagen of Am.,

Inc., 561 F.2d 494, 503 (4th Cir. 1977)).

Leonard is not challenging whether the district court

exceeded the bounds of its discretion, though. Rather, Leonard

contends that he is entitled to relief from the sanction because

he “had neither notice nor a meaningful opportunity to respond

6 The district court’s orders sanctioning Leonard refer to
Federal Rule of Civil Procedure 16, not Rule 37. Rule 16
authorizes a district court to sanction a party who is
unprepared to participate in a pretrial conference by “issu[ing]
any just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii).” Fed. R. Civ. P. 16(f)(1). Rule
37(b)(2)(A)(iii) authorizes the court to “strik[e] pleadings in
whole or in part,” and Rule 37(b)(2)(A)(vi) authorizes
“rendering a default judgment against the disobedient party.”
So while the district court referred to its authorization to
order default pursuant to Rule 16, the ultimate source of that
authorization is Rule 37. See Rabb v. Amatex Corp., 769 F.2d
996, 999-1000 (4th Cir. 1985).

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to the allegations leveled against him prior to the court

imposing” the default judgment. Leonard’s Br. 24.

We agree that there are due-process-based limits on a

court’s power to sanction through default judgment. “[T]he

provisions of the Fifth Amendment[, which provide] that no

person shall be deprived of property without due process of

law,” impose “constitutional limitations upon the power of

courts, even in aid of their own valid processes, to dismiss an

action without affording a party the opportunity for a hearing

on the merits of his cause.” Societe Internationale Pour

Participations Industrielles Et Commerciales, S. A. v. Rogers,

357 U.S. 197, 209 (1958). Accordingly, a default judgment

generally may not be entered as a sanction “without first giving

notice of . . . intent to do so and without affording an

opportunity for a hearing.” Ford v. Alfaro, 785 F.2d 835, 840

(9th Cir. 1986).

But Leonard was provided ample notice and hearing in

this case. Prior to imposing the sanction at issue, the

district court issued both oral and written warnings that

continued recalcitrance would result in default judgment. At

the pretrial conference, the court notified the parties that it

was considering “strik[ing] the answer . . . and rul[ing] in

default.” J.A. 118. Moreover, the court’s October 5 order

could not have been more clear, warning, “failure . . . to

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comply . . . will result in . . . default judgment.” RDLG, LLC

v. RPM Grp., LLC, No. 1:10-cv-204, 2012 WL 4755669, at *5

(W.D.N.C. Oct. 5, 2012) (emphasis supplied). Additionally, the

district court heard oral argument about potential sanctions at

a pretrial conference, which Leonard attended.

Such process was constitutionally adequate. And even

if it were not, Leonard fails to demonstrate that he was

prejudiced by any violation, so he is not entitled to relief on

appeal. We discuss the adequacy of the process employed by the

district court and Leonard’s inability to show prejudice in

turn.

B.

In this circuit, we “requir[e] explicit and clear

notice to” parties “when their failure to meet the . . .

conditions [of a court order] will” preclude their right to

adjudication on the merits. Choice Hotels Int’l, Inc. v.

Goodwin & Boone, 11 F.3d 469, 471 n.2 (4th Cir. 1993); see also

Hathcock, 53 F.3d at 40 (“[T]his court has emphasized the

significance of warning a defendant about the possibility of

default before entering such a harsh sanction.”); Lolatchy v.

Arthur Murray, Inc., 816 F.2d 951, 954 n.2 (4th Cir. 1987)

(“[The] fact is that in National Hockey League[ v. Metropolitan

Hockey Club, Inc.], as well as in Rabb[ v. Amatex Corporation,

769 F.2d 996 (4th Cir. 1985)], the district court explicitly

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warned the defaulting party in advance of the consequence of

default, which was dismissal. No such warning was given in this

case; had there been, another case would be presented.”

(citations omitted)). When provided, such notice is undoubtedly

constitutionally adequate. See Link v. Wabash R.R., 370 U.S.

626, 632-33 (1962).

Leonard received the requisite “explicit and clear

notice” in this case. Choice Hotels, 11 F.3d at 471 n.2.

Indeed, he received an unusually clear and explicit warning.

First, he was present at the October 3, 2012 pretrial conference

when the district court announced, “I may strike the answer in

this case and rule in default.” J.A. 118. Second, Leonard does

not dispute that he received notice of the court’s follow-on

October 5, 2012 order, which warns, “The failure of [Leonard] or

counsel to comply with this Order within the time frame set

forth in this Order will result in the Court striking the answer

of [Leonard] and entering default judgment against

[him] . . . .” RDLG, LLC, 2012 WL 4755669, at *5 (emphasis

supplied). Indeed, the warning was repeated twice. See id. at

*7 (“The Court, however, warns [Leonard] that any future

dilatory conduct will result in the Court striking [his]

Answer[] and entering default judgment against [him].” (emphasis

in original)); id. at *8 (“The failure of [Leonard] or counsel

to comply with this Order within the time frame set forth in

13
this Order will result in the Court striking the answer of

[Leonard] and entering default judgment against [him] . . . .”).

In Rabb v. Amatex Corporation, we upheld a sanction of

dismissal against a due process challenge because “counsel[]

conceded full awareness of and utter disregard for the district

court’s discovery timetable set forth in the pre-trial order.”

769 F.2d 996, 1000 (4th Cir. 1985). The instant case is even

more clear. Here, the order Leonard was fully aware of -- and

utterly disregarded -- specifically threatened default judgment.

Three times. That is far more than enough to accord Leonard

constitutionally adequate notice.

C.

Leonard was also provided an adequate opportunity to

be heard.

“[N]ot . . . every [dismissal] order entered

without . . . a preliminary adversary hearing offends due

process.” Link, 370 U.S. at 632. Following Link, other

circuits have expressly held that a court need not hold an oral

hearing before entering a default judgment sanction. See FDIC

v. Daily, 973 F.2d 1525, 1531 (10th Cir. 1992) (affirming a

default judgment sanction despite the lack of oral hearing

because “[t]he right to respond does not necessarily require an

adversarial, evidentiary hearing”); Spiller v. U.S.V. Labs.,

Inc., 842 F.2d 535, 538 (1st Cir. 1988) (“Lack of a hearing does

14
not offend due process where the plaintiff had ample warning of

the consequences of his failure to comply with court orders.”).

We need not go that far today, though, because Leonard

was permitted, through counsel, to oppose RDLG’s motion for

default judgment. At the pretrial conference, Neyhart argued in

opposition to the motion and, in fact, convinced the court that

default judgment should not be entered without first warning

Leonard that it could result from further noncompliance.

There is no question that this hearing was adequate.

Like notice, “[t]he adequacy of . . . hearing . . . turns, to a

considerable extent, on the knowledge which the circumstances

show such party may be taken to have of the consequences of his

own conduct.” Link, 370 U.S. at 632. As discussed, as between

the pretrial conference and the October 5 order, it is

abundantly clear that Leonard had knowledge of the consequences

of refusing to pay the court-imposed fine. No further hearing

was necessary.

Leonard concedes as much. At oral argument, his

counsel agreed there would have been no violation if, at the

October 11 hearing, the district court had simply entered

default judgment as a sanction for Leonard’s noncompliance. See

Oral Argument at 3:16–3:34, RDLG, LLC v. Fred M. Leonard, Jr.,

No. 15-1153 (Mar. 24, 2016), available at

http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-

15
arguments (“Had the magistrate judge wanted to find [Leonard] in

default for not paying that $2,500, he could have done so, in my

opinion, without any further hearing into [Leonard’s] conduct,

and he could have done it essentially with a one-sentence

order.”).

D.

Leonard nevertheless contends that his right to due

process was violated because he lacked notice that his failure

to pay his fine would be discussed at the October 11 hearing.

That hearing was set to address potential Rule 11 sanctions for

Leonard’s attorneys, but the district court proceeded further,

raising Leonard’s failure to pay, and then, according to

Leonard, relying on information drawn from the October 11

hearing when ordering default judgment. The court, for example,

ordered the Rule 11 hearing in part because it “ha[d] serious

concern regarding the factual ac[c]uracy of . . . statements in

[Lankford’s] Declaration and pleadings.” RDLG, LLC, 2012 WL

4755669, at *7. After considering the testimony Lankford gave

at the hearing, however, the district court relied on those same

documents as credible evidence supporting entry of default

judgment against Leonard, observing, “From the statements of Ms.

Lankford, in her declaration, it was [Leonard] who plotted and

schemed to cause a delay and continuance of this matter and to

cause the Court difficulty in trying to administer this case and

16
prepare it for trial.” J.A. 205. Leonard maintains that

reliance on findings and credibility assessments made in his

absence violates due process.

But having conceded that, consistent with due process,

the district court “could have [entered default judgment]

essentially with a one-sentence order,” Oral Argument at 3:23–

3:34, and having neglected to identify any evidence suggesting

that the district court’s findings would have been different had

Leonard attended and testified at the October 11 hearing,

Leonard necessarily concedes that any error is harmless. Even

if the court’s appeal to additional findings constituted a due

process violation, the violation did not prejudice Leonard if

the findings were neither material to the determination he seeks

to undo nor incorrect. See Tenn. Secondary Sch. Athletic Ass’n

v. Brentwood Acad., 551 U.S. 291, 303-04 (2007) (holding that

any due process violation arising from an athletic association’s

closed-door discussion with investigators after a disciplinary

hearing was “harmless beyond a reasonable doubt” where the

punished school “identified nothing the investigators shared

with the board that [the school] did not already know” and

“g[ave] no inkling of what” would have changed had the

investigators testified at the open hearing and been subject to

cross-examination).

17
 And if Leonard cannot show prejudice, his argument

cannot succeed. Where a sanctioned party “has not made any

showing of any possible prejudice[,] . . . failure to

afford . . . notice and hearing before imposition of the

sanction [i]s harmless error.” Ford, 785 F.2d at 840. Here,

there is no indication that a show cause hearing, Leonard’s

attendance at the October 11 hearing, or any additional notice

and hearing would have had any effect on the district court’s

decision to enter default judgment. Rather, the essential facts

are undisputed: Leonard willfully defied the initial sanctions

order, knowing that default judgment would result. “A party who

flouts such orders does so at his peril.” Update Art, Inc. v.

Modiin Pub., Ltd., 843 F.2d 67, 73 (2d Cir. 1988). And no

matter what Leonard would say in an additional hearing, it is

beyond dispute that he willfully flouted a court order of which

he was well aware. He is not entitled to relief from the

consequences of that choice.

III.

We turn next to the award of damages. Leonard

contends that the damages verdict must be vacated because the

district court erred when instructing the jury. Again, we

disagree.

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 A.

“We review a district court’s ‘decision to give (or

not give) a jury instruction and the content of an

instruction . . . for abuse of discretion.’” United States ex

rel. Drakeford v. Tuomey, 792 F.3d 364, 382 (4th Cir. 2015)

(alteration in original) (quoting United States v. Russell, 971

F.2d 1098, 1107 (4th Cir. 1992)). Reversal is appropriate “only

when the requested instruction (1) was correct; (2) was not

substantially covered by the court’s charge to the jury; and (3)

dealt with some point in the trial so important, that failure to

give the requested instruction seriously impaired that party’s

ability to make its case.” Id. (quoting Noel v. Artson, 641

F.3d 580, 586 (4th Cir. 2011)).

B.

Reversal is not appropriate here because Leonard’s

proposed instruction was not relevant to the issue submitted to

the jury. Irrelevant instructions do not, by definition,

“deal[] with some point in the trial so important, that failure

to give [them] seriously impair[s] [a] party’s ability to make

its case.” Tuomey, 792 F.3d at 382 (alterations supplied)

(quoting Noel, 641 F.3d at 586). Rather, “no valid objection”

lies when a court refuses instructions that are “irrelevant and

immaterial . . . to the ground upon which the case was placed

19
before the jury.” Brown v. Tarkington, 70 U.S. (3 Wall.) 377,

381 (1865).

Leonard asked the district court to instruct the jury

that damages must be “limited to the amount of money, property,

services, or credit obtained by [Leonard] from [RDLG] by means

of [Leonard]’s fraudulent misrepresentations.” J.A. 243. This

instruction was apparently adapted from In re Rountree, 478 F.3d

215 (4th Cir. 2007), an opinion in which we decided whether a

tort judgment was excepted from discharge in Chapter 7

bankruptcy by 11 U.S.C. § 523(a)(2)(A). See id. at 219-23.

Rountree dealt entirely with federal bankruptcy law. The

limitation set forth in Leonard’s proposed jury instruction

describes his interpretation of a limitation to the reach of the

fraud exception provided in the bankruptcy code.

No issue of federal bankruptcy law, however, was

submitted to Leonard’s jury. Rather, the jury was tasked with

deciding the extent to which he was liable to RDLG pursuant to

the state law causes of action alleged in this diversity suit.

And while “the issue of nondischargeability” addressed in

Rountree is “a matter of federal law governed by the . . .

Bankruptcy Code,” the question whether a valid debt exists “is

determined by rules of state law.” Grogan v. Garner, 498 U.S.

279, 283-84 (1991). The question presented to the jury --

whether and how much Leonard is indebted to RDLG pursuant to

20
North Carolina law -- thus remains a question of state law

despite Leonard’s collateral bankruptcy proceedings. Therefore,

his proposed instruction about the federal dischargeability

question was simply irrelevant.

The question whether Leonard’s judgment debt is

dischargeable is properly directed to the court overseeing his

bankruptcy. Indeed, Leonard did present his Rountree argument

there, and it was rejected. See In re Leonard, No. 15-5452,

2016 WL 1178649, at *7 (6th Cir. Mar. 28, 2016) (unpublished).

That decision was appealed to (and affirmed by) the Sixth

Circuit. See id. It cannot be challenged again here.

IV.

The district court’s decision to enter default

judgment as a sanction did not violate Leonard’s right to due

process, and Leonard’s proposed jury instruction was properly

refused. Accordingly, the judgment of the district court is

AFFIRMED.

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DAVIS, Senior Circuit Judge, concurring in the judgment:

This case is a closer call for me than it is for my friends

in the majority. I am somewhat puzzled by the manner in which

the district court sought to vindicate the court’s interest in

maintaining appropriate supervision and control over the

workflow in the busy United States District Court for the

Western District of North Carolina.

In addition to ordering that Leonard and his counsel pay

the plaintiff’s attorney’s fees in preparing for and attending

the pretrial conference, the court further sanctioned Leonard

and his counsel for failing to prepare for the pre-trial

conference by imposing a monetary penalty payable to the court.

Thereafter, with its crosshairs fixed on Leonard’s counsel, the

district court convened a hearing concerning the imposition of

further sanctions on Leonard’s counsel under Federal Rule of

Civil Procedure 11, which Leonard himself was not specifically

ordered to attend. Then, in Leonard’s absence, and in partial

reliance on the statements of his erstwhile counsel (coupled

with Leonard’s failure to timely pay the fine previously

imposed), the court switched its focus and entered an order of

default against Leonard. Ultimately, after a jury considered

solely damages evidence (but not evidence bearing on liability),

it returned a verdict in excess of half a million dollars in

favor of the plaintiff against Leonard. In my view, these

22
procedural machinations skirt the border of due process, even

for a litigant as disreputable as Leonard, who clearly

manipulated his own counsel, his adversary and its counsel, and

the district court, alike.

Manifestly, the district court would have been wise to have

built a more convincing record to explicate the appropriateness

of the ultimate sanction of default by affording Leonard an

opportunity to explain or justify his failure to pay the fine

and why something short of default would have been a more

appropriate sanction. Indeed, the usual course of action in

such circumstances is to hold a show cause hearing. I am

constrained, nonetheless, under the totality of the

circumstances shown by the record, to join in the judgment

affirming the district court.

23