[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-12776 DECEMBER 7, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-21050-CV-UUB
FEDERAL TRADE COMMISSION,
Plaintiff-Appellee,
versus
CAPITAL CHOICE CONSUMER CREDIT, INC., a
corporation, d.b.a. National Credit Shopper, d.b.a. NCS,
RICARDO E. MARTINEZ, individually and as an
officer of Capital Choice Consumer
Credit, Inc. and Millennium Communications and
Fulfillment, Inc., et al.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(December 7, 2005)
Before HULL, MARCUS and HILL, Circuit Judges.
PER CURIAM:
Capital Choice Consumer Credit, Inc., Millennium Communications and
Fulfillment, Ecommex Corp., Hartford Auto Club, Inc., Ricardo Martinez, Johnnie
Smith, and Wilfredo Lugo appeal from the district court’s order (after a bench trial)
entering final judgment against them in the amount of $36,594,684, and granting
other equitable relief in an action brought by the Federal Trade Commission for
violations of section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and the Telemarketing
Sales Rule, 16 C.F.R. pt. 310. After thorough review, we affirm.
The corporate defendants and Martinez raise six arguments on appeal: (1)
that the district court should have construed an April 23, 2002, consent order
pendente lite as having permanently resolved the issue of whether the defendants
could be ordered to pay consumer redress above the amount of refunds actually
requested by consumers; (2) that the FTC’s claims under the Telemarketing Sales
Rule, 16 C.F.R. § 310.3(b), are barred by the doctrine of claim preclusion in light
of a stipulated final judgment that disposed of the FTC’s claims against former
codefendants E-Credit Solutions, Inc., Scott Burley, and Zentel Enterprises, Inc.;
(3) that the district court abused its discretion when it refused to allow the
defendants to add an expert witness after the close of discovery; (4) that the district
court erred in granting partial summary judgment on the issue of whether the
corporate defendants’ “Approval Certificate” program was a deceptive marketing
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practice in violation of section 5(a) of the FTC Act; (5) that the district court
committed clear error in finding that the corporate defendants’ “Earn-a-Bankcard”
program was a deceptive marketing practice in violation of section 5(a) of the FTC
Act and an abusive telemarketing practice under the Telemarketing Sales Rule, 16
C.F.R. § 310.4, and, finally, (6) that the district court committed clear error in
imposing personal liability on Martinez for violations associated with the Approval
Certificate and Earn-a-Bankcard programs.
Appellant Smith has adopted the arguments raised about corporate liability
and the effect of the consent order pendente lite. Additionally, he argues (7) that
the district court committed clear error in finding him individually liable for
violations associated with the Approval Certificate program, the Earn-a-Bankcard
program, the upsale program, and unauthorized bank account debits. Finally,
appellant Lugo argues that (8) the district court erred in finding him individually
liable for violations associated with the Earn-a-Bankcard program, the upsale
program, and unauthorized bank account debits.
We have carefully reviewed the record and the arguments of the parties. As
for issues (2), (4), (5), (6), (7), and (8), we affirm based on the detailed findings
and thoroughly explained reasoning the district court provided in its orders of
February 19, 2004, June 2, 2003, and May 4, 2004. As for issue (1) -- the effect of
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the district court’s April 23, 2002, consent order pendente lite -- we find the
appellants’ argument unpersuasive. The April 23, 2002 order itself is
unambiguously labeled as an order pendente lite governing the parties only during
the course of the litigation. Nothing in the order or in the transcript of the
preliminary injunction hearing leading up to the preliminary agreement underlying
the April 23, 2002 order suggests that either of the parties contemplated any final
settlement on liability or remedies.
As for issue (3) -- the district court’s refusal to allow the addition of a late-
disclosed expert witness -- we can discern no abuse of discretion. We have
repeatedly recognized “the basic principle that an appellate court must afford the
district court’s gatekeeping determinations ‘the deference that is the hallmark of
abuse-of-discretion review.’” United States v. Frazier, 387 F.3d 1244, 1248 (11th
Cir. 2004) (en banc) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)).
Appellants sought to add an expert witness (Dr. Yoram Wind) only 25 days before
the trial was scheduled to begin, discovery having closed, and in violation of the
court’s scheduling order. Under these circumstances we can discern no error, let
alone an abuse of the trial court’s broad discretion in controlling the admissibility
of expert testimony.
In short, we affirm the judgment of the district court in all respects.
AFFIRMED.
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