Tara Productions, Inc. v. Hollywood Gadgets, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-13402 FILED

Non-Argument Calendar U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

DECEMBER 30, 2011

JOHN LEY

D.C. Docket No. 0:09-cv-61436-JIC

CLERK

TARA PRODUCTIONS, INC.,

a Florida corporation,

Plaintiff - Appellee,

versus

HOLLYWOOD GADGETS, INC.,

a Nevada corporation, et al.,

Defendants,

JUDA LEVIN,

Defendant - Appellant.

__________________________

Appeal from the United States District Court for the

Southern District of Florida

_________________________

(December 30, 2011)

Before CARNES, WILSON, and MARTIN, Circuit Judges.

PER CURIAM:

This appeal arises from a suit by Tara Production (“Tara”) to recover royalty

payments from Juda Levin in connection with Tara’s production of a television

commercial for a product known as the Kinoki Footpad. After Levin failed to

respond to Tara’s Second Amended Complaint, participate in discovery, and

appear for the December 9, 2010 calendar call, the district court entered a default

judgment against Levin in the amount of $438,813.91. The same court later

denied Levin’s motion to vacate the default judgment.

On appeal, Levin raises three challenges. First, he challenges the district

court’s decision to enter a default judgment against him. Levin claims he actively

defended himself against Plaintiff’s claims and that any failure to respond in a

timely or appropriate fashion should be attributed to his pro se status and poor

health. Second, Levin argues that the district court’s denial of his motion to

vacate the default judgment was an abuse of discretion because he had

successfully established all three elements of excusable neglect under Federal

Rule of Civil Procedure 60(b)(1). Finally, Levin insists the district court erred by

not holding an evidentiary hearing on damages, given that the damages were

contested. After thorough review, we affirm.

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I.

We review the district court’s decision to enter a default judgment for an

abuse of discretion. Sanderford v. Prudential Ins. Co. of Am., 902 F.2d 897, 898

(11th Cir. 1990). We have stated that “[a]n abuse of discretion occurs if the judge

fails to apply the proper legal standard or to follow proper procedures in making

the determination, or . . . [makes] findings of fact that are clearly erroneous.”

Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir. 2000) (quotation marks

omitted).

Under Federal Rule of Civil Procedure 55(a), 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, and that failure is shown

by affidavit or otherwise.” Fed. R. Civ. P. 55(a). While the filings of a pro se

party are held “to less stringent standards than formal pleadings drafted by

lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), a pro se litigant is not

exempt from this rule, see Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)

(“[O]nce a pro se [in forma pauperis] litigant is in court, he is subject to the

relevant law and rules of court, including the Federal Rules of Civil Procedure.).

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Based on a thorough review of the record, we conclude the district court did

not abuse its discretion. Levin failed to comply with the court’s order to respond

to the Second Amended Complaint by May 7, 2010 and did not produce anything

that could have conceivably amounted to a response for six additional months.1

Consequently, in its November 30, 2010 order, the court put Levin on notice that

he still had not yet responded to the Second Amended Complaint and asked him to

show cause by December 7, 2010. After this deadline also passed without the

filing of a proper response, the district court entered default judgment against

Levin. In light of Levin’s “repeated failure” to respond to the Second Amended

Complaint, together with his failure to respond to the district court’s orders and

“to cooperate in good faith with Plaintiff,” we cannot say the court abused its

1

The document that Levin ultimately submitted was simply a memorandum written in

opposition to Tara’s motion for summary judgment. Under the Federal Rules of Civil Procedure,

this did not qualify as a response to the Second Amended Complaint, even if construed liberally.

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discretion when it entered default judgment under Rule 55.2 See Fed. R. Civ. P.

55(a), (b)(2).

II.

“We reverse the district court’s denial of a motion to set aside a default

judgment only if the district court abused its discretion in denying the motion.”

Fla. Physician’s Ins. Co., Inc. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993).

“Although there is a ‘strong policy of determining cases on their merits,’” we have

recognized that “the district court ha[s] a ‘range of choice’ and that we cannot

reverse just because we might have come to a different conclusion had it been our

call to make.” Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 934 (11th Cir. 2007).

A default final judgment may be vacated if there is excusable neglect. Fed.

R. Civ. P. 60(b)(1). To establish excusable neglect, the defaulting party must

show that: “(1) it had a meritorious defense that might have affected the outcome;

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The district court could also have acted within its discretion had it entered a default

judgment against Levin under Federal Rule of Civil Procedure 37. Levin did not appear at the

October 15, 2010 deposition in New Jersey for which he was duly noticed, and did not respond to

written discovery requests. In addition, he neither complied with the court’s order that he

participate in the preparation of the “Joint Pretrial Stipulation,” nor responded by the deadline to

the court’s order to show cause for his “failure to respond to discovery and failure to appear for

deposition.” Finally, Levin failed to appear at the December 9, 2010 Calendar Call. Since

sanctions up to, and including, entry of default judgment are permissible where a party has failed

to comply with a court order to “provide or permit discovery,” Fed. R. Civ. P. 37(b)(2), attend its

own deposition, answer interrogatories, or respond to a request for production, Fed. R. Civ. P.

37(d), we observe that entry of a default judgment could have been appropriate alternatively

under this basis.

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(2) granting the motion would not result in prejudice to the non-defaulting party;

and (3) a good reason existed for failing to reply to the complaint.” In re

Worldwide Web Systems, Inc., 328 F.3d 1291, 1295 (11th Cir. 2003) (citation

omitted). If no good reason for failing to respond to the complaint has been

shown, excusable neglect cannot be established. See Eurisol, 488 F.3d at 934

(concluding that because the defaulting party had failed to show good reason for

failing to respond to the complaint, excusable neglect had not been established).

Seeing no error in the district court’s assessment that Levin failed to provide

a good reason for not responding to the Second Amended Complaint, we conclude

that Levin has failed to establish excusable neglect. The record reveals that in the

seven-month period between the filing of the Second Amended Complaint and

entry of default judgment, Levin exhibited a pattern of inexplicably evasive

behavior, underscored by his repeated failure to comply with the court’s orders,

including its order directing him to respond to the Second Amended Complaint by

May 7, 2010. Levin may have been impaired by his stroke in early 2009 and by

his pro se status. But, on this record, we cannot set aside the district court’s

refusal to credit Levin’s claims of extreme impairment. Nor can we say that the

district court inflexibly or impatiently enforced procedural rules against an

uninformed or unsophisticated pro se defendant. Indeed, even after the court-

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ordered deadline had lapsed, the court gave Levin a number of chances over many

months to file a proper response to the Second Amended Complaint. “[T]aking

into account the totality of the circumstances surrounding [Levin’s] omission,”

Eurisol, 488 F.3d at 934, we cannot conclude that the district court erred in finding

that Levin failed to excuse his neglect.

III.

We review the district court’s refusal to hold an evidentiary hearing to

determine damages for abuse of discretion. SEC v. Smyth, 420 F.3d 1225, 1230

(11th Cir. 2005).

Under Rule 55(b), the district court “may conduct hearings . . . when, to

enter or effectuate [a default] judgment, it needs to: . . . determine the amount of

damages.” Fed. R. Civ. P. 55(b)(2). “[S]peak[ing] of evidentiary hearings in a

permissive tone,” however, Rule 55(b)(2) does not mandate an evidentiary hearing

in all circumstances. Smyth, 420 F.3d at 1232 n.13. Rather, it leaves the decision

to hold an evidentiary hearing to the court’s discretion.

We conclude the district court did not abuse its discretion. Tara provided

evidentiary material from third parties to support its request for the specific

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amount of damages it sought. By contrast, Levin made “unsupported claims” that

“failed to controvert the record.” We have held that “mere conclusions and

unsupported factual allegations, as well as affidavits based, in part, upon

information and belief, rather than personal knowledge, are insufficient to

withstand a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1327

(11th Cir. 2005). We believe the same principle applies in the default judgment

context here. Because Levin failed to provide material that controverted the

amount of damages that Tara was seeking, the district court did not abuse its

discretion in finding that an evidentiary hearing was unnecessary.

AFFIRMED.

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