[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ March 3, 2006
THOMAS K. KAHN
No. 05-13542 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 04-00339-CV-DF-5
PHILLIP BROWN,
Plaintiff-Appellant,
versus
PAT BROCK,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(March 3, 2006)
Before BIRCH, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Phillip Brown, proceeding pro se, appeals the district court’s grant of
judgment on the pleadings in his action alleging employment discrimination under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). In granting
judgment, the district court considered Brown’s separate bankruptcy proceeding.
Because the district court did not observe the procedural requirement giving
Brown time to respond to documents outside of the pleadings, we VACATE the
district court’s order and REMAND for proceedings consistent with this opinion.
Brown also accuses the district judge of bias and argues that the district judge
should have recused himself. Finally, Brown requests that we review the district
court’s decision to award sanctions. Brown failed to file a notice of appeal with
regard to the sanctions awarded and failed to demonstrate that the district court
erred in not recusing himself, so we DISMISS these aspects of his appeal.
I. BACKGROUND
Brown sued defendant-appellee Brock in federal court alleging race
discrimination following his discharge from the Dollar General Store in Byron,
Georgia. Brock filed a motion to dismiss the complaint under Federal Rule of
Procedure 12(c), arguing that Brown should be judicially estopped for
perpetuating a fraud on the court, and attached a copy of Brown’s bankruptcy
petition, which showed that Brown failed to disclose his interest in these Title VII
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proceedings against Brock. Brown argues that the district court improperly
applied the doctrine of judicial estoppel because he did not intend to conceal the
fact of his employment discrimination lawsuit in his bankruptcy petition. Brown
also contends that the district court judge should have recused himself from the
case because the judge had a personal interest in the outcome of the case and one
of the judge’s former law clerks represented the defendant. Finally, Brown argues
that the district court erred by imposing sanctions against him. We discuss these
three issues in turn.
II. DISCUSSION
A. Judicial Estoppel
The district court granted Brock’s motion for judgment on the pleadings.
However, the court considered a document appended to Brock’s motion. Before
proceeding to the merits of the claim for judicial estoppel, we must determine
whether the court followed the proper procedure for granting judgment on the
pleadings.
We review a judgment on the pleadings de novo. Ortega v. Christian, 85
F.3d 1521, 1524–25 (11th Cir. 1996). Judgment on the pleadings is appropriate
when “no issues of material fact exist, and the movant is entitled to judgment as a
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matter of law.” Id. at 1524 (citing Fed. R. Civ. P. 12(c)). When reviewing a
judgment on the pleadings, we will accept the facts in the complaint as true and
view them in the light most favorable to the nonmoving party. Id. “[J]udgment
can be rendered by looking at the substance of the pleadings and any judicially
noticed facts.” Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint
Underwriting Ass’n, 137 F.3d 1293, 1295 (11th Cir. 1998) (per curiam). The only
relevant “pleadings” in this case include the complaint and the answer. See Fed.
R. Civ. P. 7(a).
If a document outside the pleadings is considered, Rule 12(c) contains a
conversion provision, which states that if, on a motion to dismiss,
matters outside the pleadings are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such
a motion by Rule 56.
Fed. R. Civ. P. 12(c). Under Federal Rule of Civil Procedure 56, which governs
summary judgment, the district court must give the nonmoving party ten days “to
supplement the record” prior to issuing a ruling. Trustmark Ins. Co. v. ESLU,
Inc., 299 F.3d 1265, 1267 (11th Cir. 2002). The district court did not give Brown
the opportunity to supplement the record in this case.
We have “consistently enforced the strict notice requirements,” thereby
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“creating a bright-line rule: If a district court fails to comply with the ten-day
notice requirement, the case will be reversed and remanded so that the district
court may provide the non-moving party with adequate notice.” Jones v. Auto.
Ins. Co. of Hartford, Conn., 917 F.2d 1528, 1532 (11th Cir. 1990) (emphasis in
original). We consider sua sponte whether the district complied with the “bright-
line” rule regarding notice of conversion. See Griffith v. Wainwright, 772 F.2d
822, 824 (11th Cir. 1985) (per curiam) (noting “sua sponte that the court below
failed to adhere to the dictates of Fed. R. Civ. P. 56(c)”).
There are three exceptions to the conversion and notice rules. First,
judicially noticed facts will not give rise to conversion. Bankers Ins. Co., 137
F.3d at 1295. Second, a document outside the pleadings may be considered if it is
essential to the plaintiff’s claim and not in dispute. Horsley v. Feldt, 304 F.3d
1125, 1134 (11th Cir. 2002) (referring to the incorporation by reference doctrine).
Third, conversion, even without notice, will be deemed harmless if the record
shows the parties understood conversion would take place and submitted all the
documents they would have even with sufficient notice. Denis v. Liberty Mut. Ins.
Co., 791 F.2d 846, 850 (11th Cir. 1986).
Here, the defendant moved for judgment on the pleadings but attached a
document outside the pleadings—Brown’s bankruptcy petition—in support
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thereof. Brock argued that the bankruptcy petition should be judicially noticed by
the district court, citing United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir.
1987). Rey, however, concerns facts that this circuit court will notice in the record
on appeal and is, therefore, inapplicable to facts that a district court may take
judicial notice of for purposes of ruling on a motion to dismiss. For the reasons
stated in the next paragraph, we conclude that the district court cannot take
judicial notice of the bankruptcy petition that was attached by the Rule 12(c)
movant.
None of the exceptions to the conversion and notice rules apply in this case.
With regard to the first exception, we have observed that courts may not take
judicial notice of documents in separate judicial proceedings. Concordia v.
Bendekovic, 693 F.2d 1073, 1076 (11th Cir. 1982) (“As a general rule, a court in
one case will not take judicial notice of its own records in another and distinct
case even between the same parties, unless the prior proceedings are introduced
into evidence.”). Likewise, the second exception does not apply because the
bankruptcy proceeding is not necessary to Brown’s Title VII claim. Finally, we
cannot conclude that denying Brown the opportunity to supplement the record was
harmless, and we consistently have required that district courts “be particularly
careful to ensure proper notice to a pro se litigant.” Herron v. Beck, 693 F.2d 125,
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127 (11th Cir. 1982).
The district court in this case granted Brock’s motion for judgment on the
pleadings, but it considered Brown’s bankruptcy petition, which we have
concluded may not be judicially noticed. Because the court did not provide notice
to Brown that Brock’s motion was converted to a motion for summary judgment
and because the court did not provide Brown with ten days in which to supplement
the record, the district court’s decision to dismiss Brown’s suit must be vacated.
For this reason, we do not reach the merits of the court’s decision regarding
judicial estoppel.
B. Recusal
Two federal statutes, 28 U.S.C. §§ 144 and 455, govern recusal. See Hamm
v. Bd. of Regents, 708 F.2d 647, 651 (11th Cir. 1983). Ordinarily, we review a
district judge’s decision not to recuse himself for an abuse of discretion. See
United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999) (per curiam).
However, because Brown failed to invoke the recusal statutes, we review his
recusal request for plain error. See Hamm, 708 F.2d at 651 (“The plaintiff . . .
invoked neither [recusal] statute in the district court so . . . the plain error standard
of review applies.”). Plain error exists when there is (1) error that is (2) plain,
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which (3) affects a defendant’s substantial rights and (4) “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (citation and quotation marks
omitted). “[A]dverse rulings alone do not provide a party with a basis for holding
that the court’s impartiality is in doubt.” Byrne v. Nezhat, 261 F.3d 1075, 1103
(11th Cir. 2001).
Under 28 U.S.C. § 144, a party can file a “timely and sufficient affidavit”
complaining of a trial judge’s personal bias. Because Brown did not file an
affidavit with the trial court, § 144 is inapplicable to this appeal.
Under 28 U.S.C. § 455, a judge should recuse if “his impartiality might be
reasonably questioned” or in five other specific circumstances. For recusal to
occur under § 455(a), we must determine 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.” United
States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003). To disqualify a judge under
§ 455(a), the bias “must stem from extrajudicial 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.
Brown argues that having a former law clerk practice before a judge
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jeopardizes the perception that the judge is impartial. However, an ethical danger
exists only if the law clerk knows the judge’s thoughts about a specific matter and
the law clerk subsequently represents one of the parties to the matter before the
judge. See Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251, 256 (5th
Cir. 1978) (“The impartiality of a trial judge is seriously open to question when the
judge refuses to recuse himself after being made aware that his former law clerk is
actively involved as counsel for a party in a case in which the law clerk
participated during his clerkship.”). This does not amount to a proscription on
former law clerks practicing in front of their judges. Id. (“We are not holding that
a former law clerk may never practice before the judge for whom he clerked.”).
The attorney in question clerked for the judge twelve years ago, and there is no
evidence in the record that this former law clerk breached the ethical concern of
having worked on this case while a law clerk.
Section 455(b) requires disqualification under specific circumstances,
including having personal bias against a party or personal knowledge of disputed
facts, expressing an opinion about the case, holding a financial interest in the
controversy, or having a spouse or relative involved with one of the parties.
Disqualification under § 455(b) is mandatory because “the potential for conflicts
of interest are readily apparent.” Patti, 337 F.3d at 1321. (citation and internal
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quotation marks omitted). Brown may have arguably asserted bias under
§ 455(b)(1) for personal animus or prejudice, however, he has presented no facts
in support of such bias. In addition, although Brown accused the judge of having
some personal and pecuniary interest in the case, he never presented any evidence
to support such claim. Brown’s allegations of bias are not related to the remaining
factors listed in § 455(b). Because the factual predicates for recusal under
§ 455(b) are not present, there was no error in not recusing.
Because there was no error in the district judge’s decision to preside over
the case and, therefore, no plain error in failing to disqualify himself, we dismiss
Brown’s appeal with regard to the district judge’s decision not to recuse.
C. Notice of Appeal
Civil litigants who appeal a judgment of a district court as of right must file
a notice of appeal within thirty days after the date that the district court entered its
order. Fed. R. App. P. 4(a)(1)(A). As the United States Supreme Court has
explained, filing a timely notice of appeal is “mandatory and jurisdictional;”
without it, a Court of Appeals is “without jurisdiction to review the decision on the
merits.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S. Ct.
1717, 1722 (1988).
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A notice of appeal requires that the notice “designate the judgment, order, or
part thereof appealed from.” Fed. R. App. P. 3(c)(B). In McDougald v. Jenson,
786 F.2d 1465, 1474 (11th Cir.1986), we held that a litigant who filed a notice of
appeal prior to the entry of the relevant order without referring to that order had
failed to comply with the rules of appellate procedure. We further held that,
because the litigant had failed to file a notice of appeal referring to a subsequent
order of the district court, the Court of Appeals was without jurisdiction to hear
the appeal of the subsequent order on the merits. Id.
Brown’s notice of appeal did not identify the order for sanctions because
that order came over a month after Brown filed his notice of appeal, and he failed
to amend or file a second notice of appeal subsequent to the district court’s order
for sanctions. Thus, the 24 June notice of appeal was insufficient to designate, for
consideration on appeal, the subsequently entered Rule 11 order, and, therefore,
we do not have jurisdiction to review the sanctions. Accordingly, we dismiss
Brown’s appeal in this respect for lack of jurisdiction.
III. CONCLUSION
Brown appealed the district court’s grant of judgment on the pleadings and
requested review of the district court’s decision to award sanctions. In granting
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judgment the district court considered Brown’s separate bankruptcy proceeding,
but, because the district court did not observe the requirement of giving Brown
time to respond to documents outside of the pleadings, judgment was
improvidently granted and must be VACATED. Brown’s appeal seeking recusal
does not warrant relief and is DISMISSED. Likewise, Brown failed to file a
notice of appeal with regard to the sanctions awarded, which means we do not
have jurisdiction to consider that aspect of his appeal. His appeal of sanctions
awarded is DISMISSED. We remand for proceedings consistent with this
opinion.
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