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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14866
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-01181-TWT
WILLIAM JAMES,
Sui Juris,
TERRI V. TUCKER,
Sui Juris
a.k.a. Terri V. Donald-Strickland
a.k.a. TLo-Redness,
Plaintiffs-Counter Defendants-Appellants,
versus
BARBARA HUNT,
JUDGE THOMAS W. THRASH, JR.,
Defendants-Appellees,
HARPO,
LIONSGATE ENTERTAINMENT,
OPRAH WINFREY NETWORK,
(OWN),
OPRAH WINFREY,
d.b.a. Oprah Winfrey Network,
TYLER PERRY COMPANY,
TYLER PERRY STUDIOS,
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(TPS),
TYLER PERRY,
a.k.a. Emmett Perry Jr.,
a.k.a. Emmett J. Perry,
a.k.a. Buddy,
a.k.a. John Ivory,
a.k.a. Emmett M. Perry,
a.k.a. Emmbre R. Perry,
a.k.a. Emmitt R. Perry,
a.k.a. Emmett T. Perry,
a.k.a. Willie M. Perry,
a.k.a. Emmett Ty Perry,
a.k.a. Emmett Perry,
a.k.a. Tyler E. Perry,
a.k.a. Tyler Perry Studios,
Defendants-Counter Claimants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 20, 2018)
Before WILSON, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
William James and Terri V. Tucker (the Plaintiffs) appeal pro se the district
court’s grant of two Defendants’ motions to dismiss claims under Federal Rule of
Civil Procedure 12(b) and the remaining Defendants’ motion for judgment on the
pleadings under Federal Rule of Civil Procedure Rule 12(c). The Plaintiffs bring
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five issues on appeal.1 First, they argue the district court erred in granting
judgment on the pleadings to Lionsgate Entertainment (Lionsgate), Tyler Perry,
Tyler Perry Company, Tyler Perry Studios (collectively, the Perry Defendants),
Oprah Winfrey, Oprah Winfrey Network, and Harpo, Inc. (collectively, the
Winfrey Defendants), because claim and issue preclusion did not apply to the
instant case and they stated a plausible Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. § 1962 (RICO) claim. Second, they contend the
district court erred in dismissing the claims against defendant Barbara Hunt for
lack of personal jurisdiction. Third, they assert the district court abused its
discretion in its rulings on the parties’ motions for reassignment, recusal, and
reconsideration. Fourth, they argue the district court mismanaged the proceedings
and/or violated their due process rights by hurriedly issuing various orders.
Finally, the Plaintiffs contend the district court abused its discretion in its rulings
on the parties’ motions related to service of process and default judgment. After
review, we affirm the district court.
I. Judgment on the Pleadings
1
While the Plaintiffs have appealed from several more of the district court’s orders in the
underlying case, their failure to plainly and prominently address issues as to the remaining orders
renders such issues abandoned. See Brown v. United States, 720 F.3d 1316, 1332 (11th Cir.
2013) (explaining a party abandons a claim or issue on appeal that is not plainly and prominently
addressed in its brief). Thus, we will not address any issues related to the district court’s:
(1) dismissal of the claims against Chief Judge Thrash; (2) rulings on the remaining
discovery-related motions; (3) denial of their motions for judgment as a matter of law, for
judgment on the pleadings, for summary judgment, and for appeal under 28 U.S.C. § 1292(b)
and to transfer the docket to this Court; and (4) Fed. R. Civ. P. 54(b) certification.
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As an initial matter, the district court did not abuse its discretion in
concluding the Plaintiffs improperly and untimely attempted to amend their
complaint, such that their initial complaint was the operative complaint in the
underlying proceedings. See Coventry First, LLC v. McCarty, 605 F.3d 865, 869
(11th Cir. 2010) (stating we generally review the denial of a motion to amend a
complaint under Federal Rule of Civil Procedure 15(a) for an abuse of discretion).
The Lionsgate/Perry/Winfrey Defendants filed their answers to the complaint
between May 5 and 22, 2017, and Hunt filed her Rule 12(b)(2) motion on May 22,
2017. The Plaintiffs failed to file their amended complaint until July 5, 2017.
Thus, their amended complaint was untimely by at least 23 days, and at most 40
days. See Fed. R. Civ. P. 15(a)(1) (providing a party may amend its pleading once
as a matter of course if it files a motion to amend within either: (a) 21 days after
serving the pleading; or (b) if the pleading requires a responsive pleading, 21 days
after service of the responsive pleading, or 21 days after service of a 12(b), (e), or
(f) motion, whichever is earlier). Further, the record shows the Plaintiffs never
asked for, nor received, the Defendants’ written consent or the court’s leave to file
an amended complaint, such that they were not permitted to file the amended
complaint. See Fed. R. Civ. P. 15(a)(2) (providing, if the amended complaint is
untimely, the party can amend its pleading only upon receiving the opposing
party’s written consent or the court’s leave). Despite their pro se status, the
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Plaintiffs were required to comply with Rule 15(a). See Moton v. Cowart, 631
F.3d 1337, 1340 n.2 (11th Cir. 2011) (stating pro se litigants must comply with
procedural rules).
Nor did the district court err in considering the documents from the
Plaintiffs’ prior lawsuits, as attached to the Defendants’ initial and amended
answers, and such consideration did not convert the Rule 12(c) motion for a
judgment on the pleadings into a Rule 12(b)(6) motion or Rule 56 motion for
summary judgment. Rather, these documents were properly considered in the Rule
12(c) motion because they were central to the Plaintiffs’ claims, as they
specifically listed their prior lawsuits in their complaint and alleged the lawsuits
demonstrated the Defendants’ pattern of racketeering and their conspiracy to
monopolize the television and film industry. See Horsley v. Feldt, 304 F.3d 1125,
1134-35 (11th Cir. 2002) (stating for documents attached to pleadings to be
considered in a motion for judgment on the pleadings, they must be central to the
plaintiff’s claim and undisputed).
The district court did not err in dismissing the Plaintiffs’ RICO claims 2 on
the pleadings because—even assuming arguendo the Plaintiffs pled applicable
2
While the Plaintiffs clearly challenge the dismissal of their RICO claims in their initial
brief on appeal, they fail to sufficiently brief the remaining claims mentioned in their complaint,
as they make only a few passing references, or no reference at all, to the Sherman Anti-Trust
Act, the Clayton Act, the Hobbs Act, the U.S. Copyright Act, the First Amendment, the Georgia
constitution, or the World Intellectual Property Organization Treaty. See Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (stating while we read pro se briefs liberally, issues not
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predicate acts for their RICO claims—they failed to plead the claims with the
required level of specificity. 3 See Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335
(11th Cir. 2014) (reviewing de novo the district court’s grant of judgment on the
pleadings); Ambrosia Coal & Constr. Co. v. Morales, 482 F.3d 1309, 1316 (11th
Cir. 2007) (explaining a plaintiff must plead her civil RICO claim, which is
essentially a type of fraud claim, with an increased level of specificity). Instead,
the Plaintiffs incorporated by reference all prior paragraphs of their complaint,
which contained numerous allegations against the Defendants without setting forth
specific allegations against each Defendant. See Lehman v. Lucom, 727 F.3d 1326,
1330 (11th Cir. 2013) (stating to show a violation of 18 U.S.C. § 1962, a plaintiff
must establish conduct of an enterprise through a pattern of racketeering activity);
Cox v. Adm’r, U.S. Steel & Carnegie, 17 F.3d 1386, 1396 (11th Cir. 1994) (stating
to recover on a civil RICO claim, plaintiffs must prove § 1962 was violated, they
were injured in their business or property, and the § 1962 violation caused the
injury). Namely, the Plaintiffs failed to specifically allege any precise statements,
documents, or misrepresentations the Defendants made to them. See Ambrosia
briefed on appeal by a pro se litigant are deemed abandoned and we will not consider them);
Brown, 720 F.3d at 1332 (explaining the party must go beyond making passing references to the
claim under different topical headings, and must clearly and unambiguously define the claim and
devote a distinct section of his argument to it).
3
This Court may affirm a district court ruling on any basis supported by the record.
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir), cert denied, 138 S. Ct. 557 (2017).
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Coal & Constr. Co., 482 F.3d at 1316-17 (explaining to satisfy the Rule 9(b)
standard, a RICO claimant must allege: “(1) the precise statements, documents, or
misrepresentations made; (2) the time and place of and person responsible for the
statement; (3) the content and manner in which the statements misled [her]; and
(4) what the Defendants gained by the alleged fraud”). Additionally, the Plaintiffs
failed to specifically allege the time and place of, and the person responsible for,
any fraudulent or misleading statements, documents, or misrepresentations, and
how they were misled by any of the Defendants’ statements, documents, or
misrepresentations. See id. Even accepting as true all material facts alleged in the
Plaintiffs’ pleading and viewing those facts in the light most favorable to the
Plaintiffs, there are no material facts in dispute and the Lionsgate/Perry/Winfrey
Defendants were entitled to judgment as a matter of law, given the Plaintiffs’
failure to plead their RICO allegations with the requisite specificity. See Perez,
774 F.3d at 1335 (stating judgment on the pleadings is appropriate if—upon
accepting as true all material facts alleged in the non-movant’s pleading and
viewing those facts in the light most favorable to the non-movant—no material
facts are in dispute and the movant is entitled to judgment as a matter of law).
II. Dismissal for Lack of Personal Jurisdiction
The district court did not err in grating Hunt’s motion to dismiss for lack of
personal jurisdiction. See Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)
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(reviewing de novo the district court’s dismissal of a case for lack of personal
jurisdiction). The Plaintiffs could not rely upon § 1965(d) of the RICO statute4 to
establish jurisdiction over Hunt because their asserted RICO claim against her is
both (1) wholly immaterial, where their true claim against Hunt falls under
copyright infringement rather than RICO; and (2) wholly insubstantial, where they
failed to state their RICO claims with the requisite specificity. See Republic of
Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 941-42 (11th Cir.
1997) (stating as long as an asserted federal claim is not wholly immaterial or
insubstantial, a plaintiff is entitled to invoke the federal statute’s
nationwide-service provision to establish jurisdiction).
III. Motions for Reassignment, Recusal, and Reconsideration
The initiating judge did not abuse his discretion in granting the Perry
Defendants’ motion to reassign the case to Chief Judge Thrash because the
initiating judge had inherent authority to manage the district court docket and
reassign the case to a judge who had presided over a prior related case. See Equity
Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240
(11th Cir. 2009) (explaining district courts have inherent authority to manage their
own dockets to promote the orderly and expeditious disposition of their cases);
4
The Plaintiffs have abandoned on appeal any arguments as to jurisdictional bases other
than pursuant to § 1965(d). Their single, perfunctory mention of minimum contacts, with no
substantive arguments or authority, is insufficient to save such an argument from abandonment.
See Old West Annuity & Life Ins. Co. v. Apollo Group, 605 F.3d 856, 860 n.1 (11th Cir. 2010).
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Young v. City of Palm Bay, Fla., 358 F.3d 859, 863-64 (11th Cir. 2004) (reviewing
a district court’s decision on how to manage its docket for abuse of discretion).
Next, Chief Judge Thrash did not abuse his discretion in denying the Plaintiffs’
initial recusal motion because they failed to show a basis for recusal. See 28
U.S.C. § 455(a), (b)(1) (providing a presiding judge must recuse himself from a
proceeding in which his impartiality might reasonably be questioned, or when he
has a personal bias or prejudice toward or against a party); Christo v. Padgett,
223 F.3d 1324, 1333 (11th Cir. 2000) (reviewing a district court judge’s refusal to
recuse himself for an abuse of discretion). Further, Chief Judge Thrash did not
abuse his discretion in denying the Plaintiffs’ subsequent motions for recusal,
reassignment, and/or reconsideration, as nothing prevented him from ruling on the
motion to recuse him, and the Plaintiffs’ remaining arguments were either
improperly raised for the first time in their reply brief, refuted by the record, or too
speculative and conclusory to warrant recusal.
IV. Mismanagement of Proceedings and/or Violation of Due Process Rights
The district court did not abuse its discretion in making its discovery rulings,
did not mismanage the docket, and did not violate the Plaintiffs’ due process rights.
See Borden, Inc. v. Fla. E. Coast Ry. Co., 772 F.2d 750, 756-57 (11th Cir. 1985)
(reviewing a district court’s discovery decisions for an abuse of discretion);
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Barfield v. Brierton, 883 F.2d 923, 931 (11th Cir. 1989) (reviewing a district
court’s ruling on a motion to stay for an abuse of discretion).
First, the district court had wide discretion to rule on any discovery requests
and did not abuse its discretion by staying the proceedings, filings, and discovery
until ruling on the Defendants’ pending motions for judgment on the pleadings and
motions to dismiss, especially in light of the fact the Plaintiffs’ fraud-based claims
would have substantially enlarged the scope of discovery and were largely
unpersuasive. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1368 (11th
Cir. 1997) (providing when a district court is presented with a motion to dispose of
a claim for relief that would substantially enlarge the scope of discovery, it should
rule on the motion before entering discovery orders). The court’s decision to stay
the proceedings and filings furthered the goals of controlling the case and saving
the time and effort of the court, counsel, and the parties, as the Plaintiffs had filed a
substantial amount of motions and other rulings, many of which were frivolous,
within three months of the commencement of the lawsuit. See Landis v. N. Amer.
Co., 299 U.S. 248, 254 (1936) (explaining a court’s power to stay proceedings is
incidental to its inherent power to control the disposition of the cases on its docket
to save the time and effort of the court, counsel, and the parties).
While the district court ruled on the Defendants’ motion to stay within only
six days, the Plaintiffs’ contention they had no opportunity to respond is belied by
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the record. Rather, the record shows they made three filings in the time between
the Defendants’ motion and the court’s ruling, two of which specifically noted the
Defendants’ motion to stay, and they fail to explain why they were unable to also
file a separate response in opposition to the Defendants’ motion to stay. The
Plaintiffs fail to articulate the basis of their claim for a due process violation, and
the record shows no due process violation. Also, the Plaintiffs fail to connect their
assertion the district court unfairly allowed the Defendants to proceed, despite
being in default, to the court’s grant of a stay. Nevertheless, such an assertion is
belied by the record, as neither the clerk of court nor the district judge entered
default against the Defendants.
Second, the Plaintiffs’ assertions—that the district court could not have
considered thoroughly their filings when it issued multiple orders on October 19
and that it failed to give in-depth explanations as to each ruling—are speculative
and conclusory. In so asserting, the Plaintiffs fail to account for the fact that some
of the motions and filings ruled on had been pending for months prior to the
district court’s multiple orders, and many of the motions and filings overlapped in
subject matter. Moreover, the Plaintiffs fail to point to specific orders and explain
why they were deficient, such that this Court cannot meaningfully review such a
claim. A review of the record shows that, while the district court’s orders were
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concise, they did not evidence a failure to consider the presented motions or any
mismanaging of the docket.
V. Service-of-Process and Default-Judgment Motions
Plaintiffs have failed to show how they were harmed by the district court’s
grant of the Defendants’ motion to quash service and returns of service and denial
of the Plaintiffs’ motion to strike the motion to quash. Rather, the Defendants
nevertheless filed answers and responsive pleadings to the Plaintiffs’ complaint,
and the district court granted the Defendants’ dispositive motions for judgment on
the pleadings and to dismiss on several bases other than improper service of
process. Additionally, the district court did not abuse its discretion in denying the
Plaintiffs’ default-judgment motions because their complaint failed to state
plausible RICO claims against the Defendants, such that default judgment would
have been improper. See Chudasama, 123 F.3d at 1370 n.41 (explaining “default
judgment cannot stand on a complaint that fails to state a claim”); Solaroll Shade
& Shutter Corp., v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1134 (11th Cir. 1986)
(reviewing a district court’s default-judgment ruling for an abuse of discretion).
Because the Defendants were not in default, their subsequently filed answers and
motions were not improper, and the Plaintiffs’ motions to strike those answers and
motions were meritless.
AFFIRMED.
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