[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 27, 2006
No. 05-14665 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-80081-CV-KLR
CALVIN DAVID FOX,
Plaintiff-Appellant,
versus
PRUDENTIAL FINANCIAL,
d.b.a. Prudential Securities, Inc.,
a.k.a. Prudential Insurance,
NEW YORK STOCK EXCHANGE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 27, 2006)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Calvin David Fox appeals pro se 1 the district court’s order dismissing
without prejudice his complaint against Prudential Financial (Prudential) and the
New York Stock Exchange (NYSE) alleging retaliation for engaging in acts to
further a claim under the False Claims Act (FCA), 31 U.S.C. § 3730(h). The
district court denied several of Fox’s motions and dismissed his complaint under
Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim. Fox contends
that the district court abused its discretion in denying his motions: (1) for a default
judgment, (2) to amend his complaint (3) and to disqualify the judge. In addition,
Fox contends that the district court improperly dismissed his complaint under Rule
12(b)(6).
The factual allegations and procedural history in this case are long and
complicated, with this Court having issued an opinion in the case once before. For
present purposes, the relevant facts follow. Fox initially brought several claims
against Prudential and the NYSE under the FCA, all of which were dismissed by
the district court on the magistrate judge’s recommendation. Fox appealed, and on
1
Fox was an attorney licensed to practice in Florida until his license was suspended by
order of the Florida Supreme Court in November, 1999. Fox falsely claimed to Prudential, his
employer at the time, that his license suspension was stayed pending a motion for rehearing, and
Fox submitted to Prudential a fraudulently altered Florida Supreme Court Order to support his
bogus claim. Prudential states that it fired Fox for that reason.
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April 19, 2004 this Court remanded the case to the district court for consideration
of Fox’s whistleblower claim, holding that he “arguably stated” a claim under the
whistleblower provision of the FCA. On remand, on October 29, 2004, the district
court ordered the parties to show cause why the action should not be dismissed and
judgment entered. Fox responded on November 12, 2004 by filing a motion for
leave to amend and serve an amended complaint. The magistrate judge granted
Fox’s motion to amend his complaint on November 30, 2004, but Fox failed to do
so.
Instead, on December 17, 2004, he moved for default judgment against
Prudential because Prudential failed to respond to the complaint he had allegedly
served on November 17, 2004. The district court denied Fox’s motion explaining
that because he sought and received permission to file a second amended complaint
on November 30, 2004, he could not seek a default for failure to file a response to
a first amended complaint served before that date. The district court noted the
inherent contradictions in Fox’s position: he sought and was granted leave to file a
second amended complaint, but he wanted to penalize Prudential for failing to
respond to his first amended complaint.
Fox filed a second, and then a third motion for default. The clerk of the
court granted the third motion on February 3, 2005, but the district court struck that
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order on February 15, 2005. On February 14, 2005, because of Fox’s failure to file
a second amended complaint, the district court vacated the order granting Fox’s
motion to amend and directed Prudential to respond to the first amended complaint
within 20 days.
On February 25, 2005, apparently hoping the fourth time would be the
charm, Fox filed a renewed motion for default. Not charmed in the least, the
district court denied the motion pointing out that Fox’s fourth motion made the
same arguments as his previous three motions had. The court stated that Prudential
had 20 days from its February 14, 2005 order to respond to Fox’s amended
complaint, and the 20 days had not yet elapsed.
On March 3, 2005, Prudential did respond, and filed a motion to dismiss on
two grounds: (1) failure of service of process and (2) failing to state a claim.
Regarding the failure to state a claim, Prudential noted that Fox did not allege that
he was engaged in an activity that had a “distinct possibility” of leading to an FCA
action or that Prudential had knowledge of the activity, as required under the FCA
whistleblower provision.
Undeterred by the court’s previous warnings, Fox responded with a motion
to rehear and vacate the previous court orders denying his motion for default and
with a second amended renewed motion for default. For the fifth time, Fox made
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the same arguments about default to the district court. In the same motion, he also
alleged that the court breached its duty of impartiality by having ex parte
communications and “secret discussions” with Prudential. The court denied these
motions and explained to Fox that his identical successive motions were a tax on
court resources and that he would be sanctioned if he filed another such motion.
Fox finally responded to Prudential’s reply, and the magistrate judge
recommended that the district court dismiss Fox’s complaint without prejudice for
failure to state a claim on May 11, 2005. Fox objected to the magistrate’s report on
May 31, 2005, and he moved again to disqualify the court. The district court
adopted the magistrate’s report and recommendation and dismissed the case under
Rule 12(b)(6) without prejudice on June 3, 2005. Fox filed a renewed motion to
amend his complaint on June 13, 2005. The court denied Fox’s motion to amend
his complaint because Fox “caused a needless waste of this Court’s resources,” and
it denied Fox’s motion to disqualify the court because no reasonable person
familiar with the facts of the case would doubt the court’s impartiality.
I.
We review for abuse of discretion the district court’s denial of motions for
(1) default judgment, (2) to amend a complaint, and (3) to disqualify a judge.
Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir.
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2002) (motion for default); Green Leaf Nursery v. E.I. DuPont De Nemours & Co.,
341 F.3d 1292, 1300 (11th Cir. 2003) (motion to amend); Draper v. Reynolds, 369
F.3d 1270, 1274 (11th Cir.) (motion to disqualify).
A.
First, with respect to the denial of the motion for a default judgment, the
entry of a default judgment is appropriate “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend as
provided by [the Federal Rules of Civil Procedure].’” Mitchell, 294 F.3d at 1316
(quoting Fed. R. Civ. P. 55(a)). Prudential complied with these rules.
When a plaintiff is permitted to amend his complaint, the defendant is not
required to respond until ten days after the amended complaint has been served,
unless the court orders otherwise. Fed. R. Civ. P. 15(a).
When this case was remanded, Fox filed a motion for leave to amend his
complaint, and the magistrate granted that motion. On February 14, 2005, the
district court vacated that order thereby reinstating the first amended complaint and
giving Prudential 20 days to respond to it. Prudential filed its motion to dismiss on
March 3, 2005, within the 20 days required by the district court’s order. Because
Prudential timely responded to Fox’s first amended complaint, the district court did
not abuse its discretion in denying the motion for default judgment.
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B.
Second, we address Fox’s contention that the district court abused its
discretion in denying Fox’s renewed motion to amend his complaint. The Federal
Rules of Civil Procedure require that leave to amend should be freely given when
justice so requires. Fed.R.Civ.P. 15(a). Generally, a party should be given at least
one opportunity to amend before the district court dismisses the complaint with
prejudice. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). The district
court, however, need not “allow an amendment (1) where there has been undue
delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by
amendments previously allowed; (2) where allowing amendment would cause
undue prejudice to the opposing party; or (3) where amendment would be futile.”
Id.
Here, Fox was permitted to file a first amended complaint. After that, the
magistrate judge granted him permission to file a second amended complaint.
Between November 30, 2004 when the magistrate judge granted permission to file
a second amended complaint and February 14, 2005 when the district court vacated
that order, Fox never filed a second amended complaint. Instead, he filed a series
of baseless default motions. Fox caused undue delay and exhibited bad faith in
failing to file his second amended complaint. The district court, therefore, did not
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abuse its discretion in denying Fox’s renewed motion to amend his complaint a
second time. See id.
C.
Third, we consider Fox’s motion to disqualify the court. A judge may be
disqualified if his actions violate 28 U.S.C. § 455. Section 455 provides, in
relevant part:
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts concerning
the proceeding.
28 U.S.C. §455. The Supreme Court has held that “judicial rulings alone almost
never constitute valid basis for a bias or partiality motion.” Liteky v. United
States, 510 U.S. 540, 541, 114 S.Ct. 1147, 1150 (1994).
In this case, Fox’s conclusory statements that “secret discussions” between
Prudential and the court “manifestly deflate any confidence in the judiciary” are
unsupported by any evidence. No evidence in the record supports Fox’s theory
that the court became “personally involved in soliciting Prudential and its attorneys
to defend this case” in secret discussions. A reasonable person would not find
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partiality based on bare allegations of bias and nothing more. Nor do we. Fox’s
motion is based solely on his dissatisfaction with the court’s rulings against him,
and that is not a valid basis to disqualify the court. Liteky, 510 U.S. at 541, 114
S.Ct. at 1150. The district court did not abuse its discretion in denying the motion
to disqualify.
II.
Finally, we review de novo a district court’s dismissal under Rule 12(b)(6)
for failure to state a claim. Shands Teaching Hosp. and Clinics, Inc. v. Beach St.
Corp., 208 F.3d 1308, 1310 (11th Cir. 2000).
Fox contends that his termination was an act of retaliation that violated the
whistleblower provision of the FCA. That section states that an employee:
who is . . .discriminated against in the terms and conditions of
employment by his . . . employer because of lawful acts done by the
employee on behalf of the employee or others in furtherance of an
action under [the FCA], including investigation for, initiation of,
testimony for, or assistance in an action filed or to be filed under this
section, shall be entitled to all relief necessary to make the employee
whole.
31 U.S.C. § 3730(h).
A prior panel of this Court ruled that Fox’s first amended complaint
“arguably stated” a retaliation claim under § 3730(h). “Under the ‘law of the case’
doctrine, the findings of fact and conclusions of law by an appellate court are
9
generally binding in all subsequent proceedings in the same case in the trial court
or on a later appeal.” Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 1990)
(internal quotation marks and citation omitted). When a court decides a question
of law, the law of the case doctrine applies unless: (1) “new and substantially
different evidence is produced, or there has been a change in the controlling
authority” since the prior decision; or (2) “the prior decision was clearly erroneous
and would result in a manifest injustice.” Oladeinde v. City of Birmingham, 230
F.3d 1275, 1288 (11th Cir. 2000) (citations omitted).
In this case, the district court dismissed Fox’s first amended complaint for
failure to state a claim. The prior panel reversed and held that Fox’s first amended
complaint “arguably stated” a retaliation claim. That prior holding, specifically the
reversal of the district court’s Rule 12(b)(6) ruling, is binding on the district court
and this Court under the law of the case doctrine. Neither of the exceptions to the
law of the case doctrine apply: (1) no new or different evidence has been produced
and there has been no change in controlling precedent; and (2) the decision
refusing to dismiss Fox’s claim will not result in manifest injustice. See
Oladeinde, 230 F.3d at 1288. Thus, we are compelled to hold that the district
court erred in dismissing Fox’s complaint for failure to state a claim.
The magistrate judge concluded that Fox improperly served process, but the
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district court did not reach that issue and neither do we. The district court is free to
address it on remand.
III.
The district court did not abuse its discretion in denying Fox’s motions for
default, to amend his complaint, and to disqualify the court. The district court
improperly dismissed without prejudice Fox’s complaint for failure to state a claim
under Rule 12(b)(6). AFFIRMED in part, REVERSED and REMANDED in
part.
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