“Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”

It is hard not to conclude that Judge Donald L. Graham is more valued than his colleagues at the Southern District of Florida when Judge Graham “teflon don” is affirmed on appeal while his colleagues at the S.D. Fla. are reversed. This is the second of two posting on this site where this has happened. Judge Daniel T. K. Hurley met a similar fate. See posting this site, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“. It is difficult to see how such a system advances the notion of equal justice. It would seem that justice is a function not of the “rule of law”, but of whether or not the judge is favored by the appellate courts.

U.S. Dist. Judge Ursula Ungaro-Benages was reversed on appeal by the Eleventh Circuit for failing to make Fed.R.Civ.P. 41(b)’s requisite finding that “lesser sanctions would not suffice” while her colleague U.S. Dist. Judge Donald L. Graham, “Teflon Don”, failed to make the same finding but was affirmed on appeal. In addition to the omission of the requisite finding under Fed.R.Civ.P. 41(b), the Eleventh Circuit had to take the following extreme measures to keep from reversing “Teflon Don”:

  • The Eleventh Circuit, though admittedly briefed, failed to review for validity the very orders that were used by Judge Graham to justify dismissal of the case under Fed.R.Civ.P. 41(b). See Documents Nos. 201 and 246. The Eleventh Circuit was quite willing to discuss violations of these orders, but not their validity.
  • The Eleventh Circuit explicitly accepted Judge Graham’s thesis that the government, Highlands County Board of County Commissioners had a right not to be communicated with and further that Highlands County Board of Commissioners were prejudiced by lawful communication with it by Mason.
  • The Eleventh Circuit, though admittedly briefed, failed to review the issue as to whether or not Judge Graham should have disqualified or not.
  • The Eleventh Circuit used two documents that were beyond the scope of appeal to affirm Judge Graham.
  • The Eleventh Circuit struck Mason the Appellant/Plaintiff’s brief for arguing an order that it deemed beyond the scope of appeal and then turned around used the very same order to affirm Judge Graham. “Putrid Dishonesty:Beyond the Scope of Appeal”
    For support of these assertions, see “Additional Issues Faced by Judge“, below.

    A US Circuit Judge On the Potential Dangers of Unpublished Opinions

    “If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don’t say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I’m not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.” 1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas – Little Rock School of Law ; Richard S. Arnold

    Publication

    The Eleventh Circuit used a published opinion to reverse Judge Ursula Ungaro-Benages, World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995) , Phyllis A. Kravitch,Judge Hatchett, Senior Cir. Judge Clark, while it used a unpublished or non-published opinion to affirm Judge Graham, Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, et.al., Case No. 01-13664, (11th Circuit 2002) , Judge Stanley F. Birch, Jr., Judge Stanley Marcus, and Judge Susan H. Black.

    The Law on Rule 41(b) Dismissals

    The Eleventh Circuit rigidly requires district courts to make findings explaining why lesser sanctions would not suffice. Rhini Cellular, Inc. v. Greenberg, 2006 U.S. App. LEXIS 14266, *15 (11th Cir. 2006). The Eleventh Circuit has consistently vacated and reversed Rule 41(b) dismissals where the district court failed to explicitly make the finding that lesser sanctions would not suffice. See e.g., Turner v. United States, 2006 Fed. Appx. 952 (11th Cir. 2006); Rex v. Monaco Coach, 155 Fed Appx. 485 (11th Cir. 2005); Betty K Agencies, LTD v. M/V Monada, 432 F.3d 1333 (11th Cir. 2006); Ford v. Fogarty Van Lines, 780 F. 2d 1582, 1583 (11th Cir.1986);Tweed v. Florida, 151 Fed. Appx. 856, 857 (11th Cir. 2005).

    The Eleventh Circuit “has clearly stated that because dismissal is considered a drastic sanction, a district court may only implement it, as a last resort, when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice.” World Thrust Films v. International Family Entertainment, 41 F. 3d 1454 (11th Cir. 1995). “A district court has authority under Federal Rules of Civil Procedure 41(b) to dismiss actions for failure to comply with local rules.” id..

    Although we occasionally have found implicit in an order the conclusion that “lesser sanctions would not suffice’, we have never suggested that the district court need not make that finding, which is essential before a party can be penalized for his attorney’s misconduct.” Mingo v. Sugar Cane Growers Co-op of Florida, 864 F.2d 101, 102 (11th Cir.1989) (citations omitted). This court has only inferred such a finding “where lesser sanctions would have “greatly prejudiced’ defendants.

    Facts Supporting Rule 41(b) Dismissal

    Judge Graham

    On June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:
    [I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” See Docket Entry No. 201

    On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

    ORDERED AND ADJUDGED that Defendants’ Renewed Motion for Preliminary Injunction is GRANTED… Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” See Docket Entry No. 246.

    Highlands County asked and got Judge Graham to dismiss a lawsuit because of alleged violations of these orders, which Mason contended on appeal, were illegal. Highlands County filed two motions for sanctions in the form of dismissal of the plaintiff’s lawsuit. Docket Entry Nos. 511 and 646. These motions depicted out of court communications between Highlands County and the Plaintiff, Marcellus Mason. Judge Graham and his Magistrate granted these motions and dismissed the case on June 20, 2001. See Docket Entry Nos. 766 an and 791.
    The following alleged out of court lawful communications were used to dismiss the lawsuit.

    • “They claimed that, during the week of 5 February 2001, Mason had demanded to view his personnel file from Highlands County’s Human Resource Director Fred Carino, a named defendant in the case.” See Opinion, pg. 4.
    • They stated that, on 13 and 14 February 2001, Mason also appeared at Carino’s office and demanded to view the billing records for Highlands County’s attorney and Highlands County’s liability insurance documents. See Opinion, pgs. 4-5.
    • They attached a copy of an e-mail apparently sent by Mason in which he explained that he would file a criminal complaint against Carino if he was denied any requested documents and expressed his belief that the county had “waived” its rights under the Orders as a result of Carino’s conversations with Mason and letter. See Opinion, pg. 5.
    • On 6 April 2001, Heartland again moved for sanctions in the form of dismissal because Mason had “repeatedly personally contacted [by e-mail] supervisory employees and/or individual Defendants” in the case since the magistrate judge’s 27 March order. See Opinion, pg. 6.

    In this case, the Eleventh Circuit stated:

    “Although the district court did not make an explicit finding that a sanction less than dismissal with prejudice would have sufficed, it is unclear what lesser sanction would have been more appropriate in this situation.”

    There is no mention as to how Highlands County was “greatly prejudiced”, a necessary finding, by lawful out of court communications with it by the Plaintiff Mason. Such a notion would be absurd on its face. In order to make the “implicit finding”, the Eleventh Circuit, used two documents that were beyond the scope of appeal and that Mason did not have a chance to oppose. Moreover these documents should not have been a part of the record as both were produced subsequent to the closing of the case on June 20 2001. The Case was closed on June 20, 2001 and the notice of appeal filed on June 25, 2001. The Eleventh Circuit used two documents that were beyond the scope of appeal to affirm Judge Graham. Docket No. 878, a prefiling injunction, was issued sua sponte, on September 20, 2001. Pgs. 13-14 of the Opinion states:

    Moreover, despite the closure of the case by the district court, Mason’s continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings. Therefore, the record supports the district court’s implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.

    Additionally, Docket Entry No. 900, dtd March 22, 2002, is directly referenced “R19-900-7” and used for justification at pg. 12. “R19-900-7” stands for record volume 19, Document no. 900.
    The Eleventh Circuit admitted that the following were at issue on the appeal:

    Mason also raises issues that relate to non-sanction matters,..the denial of his motions to disqualify the district court and magistrate judges, and the merits of his complaint.

    See Opinion, pg. 10.

    On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.

    See Opinion, pg. 9.

    Judge Ungaro-Benages

    The case was dismissed because of the following:

    • Plaintiffs violated Federal Rules of Civil Procedure and Local Rule 16.1 by failing to timely file a scheduling report.
    • Plaintiffs failed to effect service of process, and file proof thereof

    In this case, the court declined to evaluate the first prong as to whether or not engaged World Thrust in a clear pattern of delay or willful contempt. The court concluded it need not analyze that prong because the district court, Judge Ursula Ungaro-Benages failed to make a finding that lesser sanctions would not suffice. The Court stated:

    We need not decide, however, whether the conduct of World Thrust’s lawyers was contumacious because the district court failed to make the necessary finding that lesser sanctions would not suffice in this instance, as required in the second prong of the inquiry.

    Additional Issues Faced by Judge

    Judge Graham faced additional issues on appeal which, anyone of which would have required reversal. However, the Eleventh Circuit simply chose to ignore the following issues on appeal:

    • Judge Graham should have disqualified or recused.
    • Judge Graham issued injunctions that were invalid. Violations of these same orders formed the basis of the Fed.R.Civ.R. 41(b) dismissal. These orders prohibited direct communication by the Plaintiff , Mason with the Highlands County Government. For discussion of these orders, see posting “A Federal Magistrate May Issue An Injunction So Long As He Does Not Call it An Injunction
    • Judge Graham failed to rule on a motion for a preliminary that was pending from November 24, 1999 until the case was closed on June 20, 2001. The opinion does not discuss this issue.
    • Judge Graham mismanaged the case by allowing scores of filings to go undecided.
    • Judge Graham intentionally misrepresented the law. The opinion does not discuss this issue.
    • The Eleventh Circuit used two documents that were beyond the scope of appeal to affirm Judge Graham. The Case was closed on June 20, 2001 and the notice of appeal filed on June 25, 2001. The Eleventh Circuit used two documents that were beyond the scope of appeal to affirm Judge Graham. Docket No. 878, a prefiling injunction, was issued sua sponte, on September 20, 2001. Pgs. 13-14 of the Opinion states:

      Moreover, despite the closure of the case by the district court, Mason’s continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings. Therefore, the record supports the district court’s implicit finding that a sanction less than dismissal of the action with prejudice would have had no effect.

      Additionally, Docket Entry No. 900, dtd March 22, 2002, is directly referenced “R19-900-7” and used for justification at pg. 12. “R19-900-7” stands for record volume 19, document no. 900.
      The Eleventh Circuit admitted that the following were at issue on the appeal:

      Mason also raises issues that relate to non-sanction matters,..the denial of his motions to disqualify the district court and magistrate judges, and the merits of his complaint.

      See Opinion, pg. 10.

      On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.

      See Opinion, pg. 9.

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8 Responses to ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal”

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    […] paragon2pieces wrote an interesting post today onHere’s a quick excerptThey stated that, on 13 and 14 February 2001, Mason also appeared at Carino’s office and demanded to view the billing records for Highlands County’s attorney and Highlands County’s liability insurance documents. u>See Opinion, pgs. 4-5. … […]

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