USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 1 of 27
[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-13798 ____________________
KEITH STANSELL, MARC GONSALVES, THOMAS HOWES, JUDITH JANIS, as Personal Representative of the Estate of Greer Janis, MICHAEL JANIS, et al., Plaintiffs-Counter Defendants-Appellees, versus REVOLUTIONARY ARMED FORCES OF COLOMBIA, COLES ADVENTURES, LLC, et al.,
Defendants, USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 2 of 27
2 Opinion of the Court 22-13798
SAMARK JOSE LÓPEZ BELLO, YAKIMA TRADING CORPORATION,
Intervenors-Cross Defendants-Appellants,
EPBC HOLDINGS, LTD., 1425 BRICKELL AVE 63-F LLC, 1425 BRICKELL AVE UNIT 46B LLC, 1425 BRICKELL AVE 64E LLC, 200G PSA HOLDINGS LLC, et al.,
Intervenors-Appellants,
CITIBANK N.A.
Cross Claimant-Counter Claimant,
SIX SIS LTD.
Cross Defendant. USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 3 of 27
22-13798 Opinion of the Court 3
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cv-20896-RNS ____________________
Before JORDAN, BRASHER, and ABUDU, Circuit Judges. JORDAN, Circuit Judge: This appeal is yet another chapter in a decade-long attempt by a number of plaintiffs to satisfy a 2010 default judgment in the sum of $318 million against the Revolutionary Armed Forces of Colombia, colloquially referred to as the FARC, in a suit brought pursuant to the Anti-Terrorism Act, 18 U.S.C. § 2333. For those interested in the chronology, our previous decisions are Stansell v. Revolutionary Armed Forces of Colombia, 704 F.3d 910 (11th Cir. 2013); Stansell v. Revolutionary Armed Forces of Colombia, 771 F.3d 713 (11th Cir. 2014); Stansell v. Revolutionary Armed Forces of Colombia, 772 F. App’x 772 (11th Cir. 2019); Stansell v. López Bello, 802 F. App’x 445 (11th Cir. 2020); and Stansell v. López Bello, 45 F.4th 1340 (11th Cir. 2022). Our most recent case in 2022 involved attempts by the plain- tiffs to garnish blocked assets—bank accounts and property— owned by Samark José López Bello and certain companies he owned or controlled. We held that Mr. López and the companies were entitled to a jury trial under Fla. Stat. § 77.08 on whether they USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 4 of 27
4 Opinion of the Court 22-13798
were agents or instrumentalities of the FARC so as to allow gar- nishment of their blocked assets pursuant to § 201(a) of the Terror- ism Risk Insurance Act of 2002, Pub. L. No. 107297, codified as a note to 28 U.S.C. § 1610. See Stansell, 45 F.4th at 1356–60. On remand, and before a jury trial could be held, the district court entered default judgment against Mr. López and the compa- nies for disobeying its orders and for failing to comply with their discovery obligations. They now seek review of the default judg- ment and two rulings by the district court on discovery motions. Following review of the record, and with the benefit of oral argument, we affirm. Mr. López willfully disobeyed the district court’s order by failing to appear for his scheduled deposition on Zoom, and he and his companies willfully failed to comply with their discovery obligations. Given its findings that Mr. López and the companies acted willfully, and that they did not intend to com- ply with its discovery orders, the district court did not abuse its dis- cretion in entering default judgments against them as a sanction.1 I A comprehensive procedural and factual background is set out in our previous opinions. We recount here only what is neces- sary to resolve this appeal.
1 In the rest of the opinion we sometimes refer to Mr. López and the compa-
nies as the López appellants. As to any issues not discussed, we summarily affirm. USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 5 of 27
22-13798 Opinion of the Court 5
A In 2010, four individuals—Keith Stansell, Marc Gonsalves, Thomas Howes, and Judith G. Janis (as personal representative of the estate of Thomas Janis)—sued the FARC and other related par- ties under the ATA, 18 U.S.C. § 2333. The FARC failed to appear after service and the district court entered default judgment against it in the amount of $318 million. See Stansell, 771 F.3d at 722–23. Pursuant to § 201(a) of the TRIA, the assets of a third party who is an agency or instrumentality of a terrorist entity are subject to execution or attachment. A party who seeks to execute a judg- ment against a third party under the TRIA must establish that the third party “is actually an agency or instrumentality” of the terror- ist party. See id. at 723. Unable to execute the judgment against the FARC, the plaintiffs sought to satisfy the judgment in part by attaching the as- sets belonging to Mr. López and a number of companies he owns or controls—Yakima Trading Corporation, EPBC Holdings, Ltd., 1425 Brickell Ave 63-F, LLC, 1425 Brickell Ave Unit 46B LLC, 1425 Brickell Ave 64E LLC, and 200G PSA Holdings LLC. See Stansell, 45 F.4th at 1346–48. In 2019, in accordance with § 201(a) of the TRIA, the plaintiffs filed an ex parte motion in the district court for writs of garnishment and execution against assets owned or controlled by the López appellants. To show that the López appellants were agencies or instrumentalities of the FARC, the plaintiffs relied on 2017 findings made by the Office of Foreign Assets Control, which USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 6 of 27
6 Opinion of the Court 22-13798
concluded that Mr. López had provided material assistance, finan- cial aid, or goods and services in support of the drug-trafficking activities of Tareck Zaidan El Aissami Maddah. The plaintiffs sub- mitted evidence and sworn statements to show that Mr. López could be tied to the FARC through his connections with Mr. El Aissami. The district court concluded, among other things, that the plaintiffs had established that the López appellants were agencies and instrumentalities of the FARC. The López appellants appealed that decision, arguing that they were entitled to a jury trial on the issue of whether they were in fact agencies or instrumentalities of the FARC. We agreed with the López appellants and held that they had established “issues of material fact [that] necessitated a jury trial” on the issue. See Stansell, 45 F.4th at 1358. Accordingly, we reversed and remanded for a jury trial. See id. 2 B On remand, the district court issued a scheduling order. The order scheduled the jury trial for November 21, 2022, and also set the date by which trial exhibits, expert motions, and deposition des- ignations were to be submitted.
2 We noted that the fugitive disentitlement doctrine might have some bearing
on the case due to Mr. López’s failure to turn himself in on federal criminal charges pending in New York, but decided not to consider it because neither party had raised it before the district court or on appeal. See Stansell, 45 F.4th at 1348. USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 7 of 27
22-13798 Opinion of the Court 7
The plaintiffs subsequently moved for entry of final judg- ment based on the fugitive disentitlement doctrine. Separately, the plaintiffs issued a notice setting Mr. López’s deposition for October 12, 2022. The plaintiffs also propounded several document re- quests to the López appellants. In an email sent on October 6, 2022, counsel for Mr. López informed the plaintiffs that Mr. López would not be appearing for his scheduled deposition. Several days later, the López appellants filed a motion for a protective order, arguing that the plaintiffs were improperly seeking discovery. In their motion, the López appel- lants sought “to preclude the [p]laintiffs from conducting any dis- covery in this matter, including but not limited to, [Mr.] López’s deposition.” D.E. 516 at 3. According to the López appellants, the district court’s scheduling order did not permit any fact or expert discovery. See id. at 3–4. The district court denied the López appellants’ motion for a protective order on October 12, 2022. First, it determined that the López appellants had failed to show that good cause necessitated entry of a protective order. The scheduling order, the court ex- plained, contemplated discovery. In addition, the plaintiffs were en- titled to discovery by applicable law. Second, the court ruled alter- natively that the application of the fugitive disentitlement doctrine barred the López appellants from seeking any form of affirmative relief and constituted an independent basis to deny the motion for a protective order. The court, however, permitted Mr. López—de- spite his fugitive status—to appear remotely for his deposition, USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 8 of 27
8 Opinion of the Court 22-13798
which was to take place within seven days from its order. Finally, the court warned against noncompliance. Specifically, the court told the López appellants that failure to comply with their discov- ery obligations would “result in sanctions, up to and including the . . . entry of final judgment.” D.E. 523 at 5. Following the district court’s order, the plaintiffs issued a sec- ond notice for Mr. López to appear for a virtual deposition on Oc- tober 17, 2022, at 9:00 A.M. They also renewed their written dis- covery requests to the companies owned or controlled by Mr. López. On October 14, 2022, the López appellants filed a second motion for a protective order—this time as an emergency mo- tion—asking the district court to postpone Mr. López’s deposition by two days. They asserted that the plaintiffs were not entitled to the documents they requested through their duces tecum request to Mr. López for his deposition. First, they argued that the duces tecum request improperly circumvented the time limitations set forth in Federal Rule of Civil Procedure 34. Second, they asserted that the duces tecum request was not proportional to the needs of the case. For example, there was no need, in the view of the López appel- lants, for asset discovery. But the López appellants represented that “[Mr.] López intends to provide responses to all written discovery within the time prescribed by [Rule] 34.” 3
3 The emergency motion said nothing about the requests for production pro-
pounded to the companies owned or controlled by Mr. López. USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 9 of 27
22-13798 Opinion of the Court 9
The district court denied the emergency motion for a pro- tective order the same day it was filed. See D.E. 527. The court first explained that there was no good cause to change the date of the deposition. The fact that Mr. López preferred a different day for the deposition was insufficient, as was the fact that one of the at- torneys for the López appellants was travelling on the day of the deposition. See id. at 1. In addition, the court noted that Mr. López was “barred from seeking affirmative relief ” pursuant to the fugi- tive disentitlement doctrine. See id. at 1–2. With respect to the du- ces tecum requests, the court declined to grant Mr. López relief due to the fugitive disentitlement doctrine but observed that Rule 30(b)(2) allows a notice of deposition to be accompanied by a Rule 34 request for production of documents. See id. at 2 (“If the [p]laintiffs have issues with the [López appellants’] responses to spe- cific discovery requests, the [p]laintiffs may raises those issues with the [c]ourt by motion at the appropriate time.”). Finally, the court closed by again warning the López appellants that their failure to “respond to appropriate discovery requests will result in sanctions, up to an including the striking of [their] pleadings and entry of final judgment against [them]” under Rule 37(b)(2)(C). See id. at 5 (em- phasis in original). That very same day, on October 14, 2022, the López appel- lants filed a notice of appeal seeking review of the district court’s denial of both motions for a protective order. Months later, we dismissed that appeal for lack of jurisdiction. See Stansell v. López Bello, No. 22-13454 (11th Cir. Feb. 17, 2023). USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 10 of 27
10 Opinion of the Court 22-13798
On October 16, 2022, counsel for the López appellants in- formed the plaintiffs via email that Mr. López would not be appear- ing at the scheduled Zoom deposition due to the then-pending ap- peal. Consistent with that email, Mr. López did not appear for his deposition on October 17, 2022. Neither Mr. López nor the López appellants ever complied with the district court’s order to respond to the plaintiffs’ discovery requests. As far as we can tell from the record, the plaintiffs did not receive any of the documents they requested from the López ap- pellants. C The district court thereafter considered and denied the plain- tiffs’ motion for entry of final judgment based on the fugitive dis- entitlement doctrine. See D.E. 536. The court opined that applying the doctrine to completely preclude the López appellants from de- fending the plaintiffs’ garnishment action would be inappropriate under Eleventh Circuit precedent. See id. at 4. But the district court concluded that the entry of default judgment was an appropriate sanction against Mr. López under Rule 37 because he disobeyed its orders and failed to appear for his deposition. The court specifically found that the pending appeal from the denial of the motions for a protective order did not relieve Mr. López of his obligation to appear. See id. at 5. It also found that the López appellants’ “ongoing gamesmanship and disregard of the [c]ourt’s orders demonstrate[d] that the violation here [was] willful and . . . deserving of sanctions.” Id. The court explained USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 11 of 27
22-13798 Opinion of the Court 11
that it lacked the ability to compel Mr. López to comply with its orders given his fugitive status, and determined that “less severe sanctions” would not suffice. The court could “think of no other sanction that would adequately punish and deter this conduct.” Id. Based on these findings, the court entered default judgment against Mr. López. In the same order, the district court instructed the other de- fendants—the companies which were controlled or owned by Mr. López—to show cause as to why default judgment should not be entered against them based on Mr. López’s failure to appear at his deposition and failure to comply with its orders. In response, the companies asserted that entry of default judgment against them would be inappropriate because the filing of the notice of appeal deprived the court of jurisdiction. Finding their explanation inad- equate and unpersuasive, the court entered default judgment against the companies as well. See D.E. 547. The court explained that the companies were owned or controlled by Mr. López. The pending appeal, moreover, did not allow Mr. López to disobey its order to appear for his deposition. See id. at 1–3. The López appellants now seek review of the default judg- ment and the denials of their motions for a protective order. II We review the imposition of sanctions for abuse of discre- tion. See Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005). The same deferential standard applies to our re- USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 12 of 27
12 Opinion of the Court 22-13798
view of the denial of a motion for a protective order and the appli- cation of the fugitive disentitlement doctrine. See Chi. Trib. Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001); F.D.I.C. v. Pharaon, 178 F.3d 1159, 1162 (11th Cir. 1999). A district court abuses its discretion when it applies an incorrect legal stand- ard, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous. See Chi. Trib. Co., 263 F.3d at 1309. III The López appellants advance four main arguments. First, they contend that their October 2022 notice of appeal, which sought review of the denial of their motions for a protective order, deprived the district court of jurisdiction to do anything further while the appeal was pending. Second, they argue that the entry of default judgment was an extreme sanction which constituted an abuse of discretion. Third, they assert that the district court erro- neously relied on the fugitive disentitlement doctrine in denying their motions for a protective order. Fourth, they maintain that the statements by the district court that it would not grant any affirm- ative relief while Mr. López remained a fugitive amounted to an impermissible injunction and an unconstitutional prior restraint on his rights. We address these arguments below. 4
4 The López appellants also argue that the fugitive disentitlement doctrine
should not prevent consideration of their appeal. We affirm on the merits and have no reason to consider the application of the fugitive disentitlement doc- trine. USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 13 of 27
22-13798 Opinion of the Court 13
A The López appellants contend that their notice of appeal de- prived the district court of jurisdiction to enter the default judg- ments. They are mistaken. The district court’s orders denying the motions for protec- tive orders were not final because they did not end “the litigation on the merits.” CSX Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000). Indeed, there was much left to be done, in- cluding a jury trial—the precise reason we remanded in the earlier appeal. See Supreme Fuels Trading FZE v. Sargeant, 689 F.3d 1244, 1246 (11th Cir. 2012) (explaining that an order adjudicating fewer than all of the claims in a suit, or adjudicating the rights and liabil- ities of fewer than all of the parties, is not a final judgment from which an appeal may be taken). The orders were also not immediately appealable under the collateral order doctrine. An order is considered collateral if it “(1) conclusively determines an important issue that is both (2) completely separate from the merits of the case and (3) effec- tively unreviewable on appeal from a final judgment.” Parker v. Am. Traffic Sols., Inc., 835 F.3d 1363, 1367 (11th Cir. 2016). The López appellants have failed to convincingly explain how the orders satisfy this standard. They claim that the application of the fugitive dis- entitlement doctrine would have been unreviewable on appeal from a final judgment because the “district court ordered [Mr.] López and his counsel not to file any motions seeking relief.” Ap- pellants’ Br. at 6. But the district court never made such a ruling. USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 14 of 27
14 Opinion of the Court 22-13798
It stated that it would not grant Mr. López any affirmative relief while he remained a fugitive. Moreover, in assessing the “third condition of the collateral order doctrine, which asks whether a right or claim can be vindi- cated adequately on appeal following final judgment,” the focus is not on the specific case under consideration but rather on the “en- tire category to which a claim belongs.” Smile Direct Club, LLC v. Bottle, 4 F.4th 1274, 1282 (11th Cir. 2021) (en banc) (citation omit- ted). Absent unique matters like the denial of anonymity for a party, see In re Chiquita Brands Int’l, Inc., 965 F.3d 1238, 1245–46 (11th Cir. 2020), orders denying motions for a protective order do not satisfy the collateral order standard. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981) (“[W]e have generally denied re- view of pretrial discovery orders.”); Drummond Co. v. Collingsworth, 816 F.3d 1319, 1325 (11th Cir. 2016) (“Discovery orders generally do not present ‘important questions’ warranting collateral order re- view.”). In sum, there was no final or immediately appealable order. The filing of the notice of appeal in October 2022 therefore did not deprive the district court of jurisdiction. As we have explained: “[F]iling a notice of appeal from a nonappealable order should not divest the district court of jurisdiction[,] and . . . the reasoning of the cases that so hold is sound. . . . [A] contrary rule leaves the court powerless to prevent intentional dilatory tactics, forecloses without remedy the nonappealing party’s right to continuing trial court ju- risdiction, and inhibits the smooth and efficient functioning of the USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 15 of 27
22-13798 Opinion of the Court 15
judicial process.” United States v. Hitchmon, 602 F.2d 689, 694 (5th Cir. 1979). B The López appellants argue that the district court abused its discretion in entering default judgment as a sanction under Rule 37. We disagree. Under Rule 37, a district court has a number of options when a party “fails to obey an order to provide . . . discovery.” These options include orders (i) directing that the matters embraced in the order or other designated facts be taken as established for pur- poses of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobe- dient party; or (vii) treating as contempt of court the failure to obey. Fed. R. Civ. P. 37(b)(2)(A). USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 16 of 27
16 Opinion of the Court 22-13798
A court may also issue sanctions against a party who, after being served with proper notice, fails to appear for a deposition. See Fed. R. Civ. P. 37(d)(1)(A)(i). Such sanctions may include the entry of default judgment against the offending party. See id. Default judgment pursuant to Rule 37 “is appropriate only as a last resort, when less drastic sanctions would not ensure com- pliance with the court’s orders.” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). Because of its severe conse- quences, “a default judgment sanction requires a willful or bad faith failure to obey a discovery order.” Id. As a general matter, “the imposition of sanctions for failure to provide discovery rests with the sound discretion of the district court and will not be overturned absent abuse of that discretion.” Props. Int’l, Ltd. v. Turner, 706 F.2d 308, 310 (11th Cir. 1983). A dis- trict court necessarily abuses “its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” McGregor v. Bd. of Comm’rs of Palm Beach Cnty., 956 F.2d 1017, 1022 (11th Cir. 1992) (quoting Cooter & Gell v. Hart- marx Corp., 496 U.S. 384, 405 (1990)). Where there is no such error, “[t]he question, of course, is not whether [we] would . . . have [im- posed the sanction in question]; it is whether the [d]istrict [c]ourt abused its discretion in so doing.” NHL v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976). Here there are no errors of law or clearly erroneous findings of fact. As background, the arguments the López appellants made USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 17 of 27
22-13798 Opinion of the Court 17
in support of their first motion for a protective order were un- founded. For example, the post-remand scheduling order contem- plated that all parties were entitled to fact and expert witness dis- covery, as it provided a deadline for the filing of Daubert motions, see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and a procedure for designating deposition excerpts. See D.E. 512 at 1–2. Indeed, the general rule is that “post-judgment discovery [governed by Florida law] is appropriate as long as the judgment is enforcea- ble.” Salinas v. Ramsey, 881 F.3d 876, 876 (11th Cir. 2018). Yet the López appellants moved for a protective order arguing that the scheduling order did not permit any fact or expert discovery. In any event, even if the López appellants were reasonably mistaken about the scheduling order, the district court cleared up any confusion when it denied the first motion for a protective or- der. The court noted that the scheduling order contemplated both fact and expert discovery and explained that the plaintiffs were “en- titled to seek discovery in aid of execution of a judgment under Florida and federal law.” D.E. 523 at 2. The court, moreover, warned the López appellants that failure to comply with their dis- covery obligations would “result in sanctions, up to and including the . . . entry of final judgment.” D.E. 523 at 5. The court also made it easier for Mr. López to comply with his discovery obliga- tions by permitting him to appear virtually for his deposition even though he remained a fugitive. See id. Despite this warning and the accommodation of Mr. López, the López appellants filed a second motion for a protective order USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 18 of 27
18 Opinion of the Court 22-13798
seeking to put off Mr. López’s deposition for two days and to avoid complying with many of the plaintiffs’ discovery requests. The court denied the second motion the same day it was filed and in- structed Mr. López to appear at the Zoom deposition on October 17, 2022, as scheduled. The court again warned the López appel- lants that their failure to comply with its orders and their discovery obligations would result in sanctions, including the entry of final judgment. See D.E. 527 at 2. The López appellants, however, ig- nored the court’s warnings. Mr. López did not appear at his sched- uled deposition, and the López appellants failed to comply with the plaintiffs’ document requests. Given Mr. López’s failure to comply with its order to appear for his deposition, the district court determined that sanctions pur- suant to Rule 37 were appropriate against him and against the com- panies he owned or controlled. Of the options available, the court chose the entry of default judgment after finding that the disobedi- ence of its orders was willful and that it could not fashion a less severe sanction to ensure compliance due to Mr. López’s fugitive status. See D.E. 536 at 5. Referencing its previous orders, the court noted that it had warned the López appellants that the failure to comply with its orders and their discovery obligations would result in sanctions. On this record, we find no abuse of discretion. See generally United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc) (“The application of an abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach.”). We have USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 19 of 27
22-13798 Opinion of the Court 19
previously upheld the entry of default judgment as a sanction for the failure to comply with discovery obligations and for disobedi- ence to a district court’s orders. For example, in Turner, we af- firmed the entry of default judgment under Rule 37(b) where the sanctioned party repeatedly failed to comply with discovery obliga- tions, including failing to provide witnesses at depositions and sub- mitting incomplete and improper responses to interrogatories. See Turner, 706 F.2d at 310. And Turner is not an outlier. See Consumer Fin. Prot. Bureau v. Brown, 69 F.4th 1321, 1323 (11th Cir. 2023) (up- holding the dismissal of claims as sanctions where the plaintiff “vi- olat[ed] the district court’s clear orders and derail[ed] multiple dep- ositions”); Malautea, 987 F.2d at 1542–44 (affirming the entry of a default judgment against the defendants in a vehicle rollover case because they willfully violated three district court orders to provide discoverable information to the plaintiff); Hashemi v. Campaigner Publ’ns, Inc., 737 F.2d 1538, 1539 (11th Cir. 1984) (affirming the dis- missal of a complaint under Rule 37(d) due to a party’s “flagrant disregard and willful disobedience of the court’s discovery orders”) (citations and internal quotation marks omitted). As the López appellants see it, the entry of default judgment was an unjustifiably harsh consequence of Mr. López’s failure to appear at a single deposition. See Appellants’ Br. at 9, 16, 50. We need not address whether or not a single unexcused failure to ap- pear at a court-ordered deposition in a run-of-the mill civil case warrants entry of default judgment under Rule 37. What makes this case unique is that Mr. López was a fugitive. And because of USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 20 of 27
20 Opinion of the Court 22-13798
his fugitive status, the district court lacked the practical ability to compel him to obey its orders. The Second Circuit’s decision in S.E.C. v. Razmilovic, 738 F.3d 14 (2d Cir. 2013), is instructive given its procedural and factual sim- ilarities. In that case, the district court entered default judgment against a civil defendant who was a fugitive from criminal charges in the United States and who had refused to comply with an order to appear for his in-person deposition at the offices of the S.E.C. in New York City. Like Mr. López, the defendant in Razmilovic failed to show up for his first scheduled deposition. The district court denied his motion to permit him to appear for the deposition by teleconfer- ence, ordered him to appear in person for his rescheduled deposi- tion, and warned him that failure to appear might result in Rule 37 sanctions, including the entry of default judgment. See id. at 20– 21. When the defendant again did not appear for his deposition, the S.E.C. moved for default judgment against him. The district court granted the motion, explaining that the defendant had no valid excuse for failing to appear for the deposition, that his disobe- dience of its order was willful and intentional, that he had been warned that sanctions could be imposed if he did not appear, and that a lesser sanction (like allowing the deposition to take place in Sweden) would not work. See id. at 21–22. The Second Circuit upheld the district court’s entry of de- fault judgment against the defendant under Rule 37. Acknowledg- ing that a default judgment is an extreme sanction, it noted that USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 21 of 27
22-13798 Opinion of the Court 21
there was no challenge to the finding of willfulness, and provided this explanation for its holding: “Although [the defendant] diso- beyed only that single court order, his adamance in the face of the court’s warning of possible sanctions that included the extreme sanction of default clearly supported an inference that renewed or- ders to appear would be unavailing and that no lesser sanction would be effective to induce [him] to appear in New York [City] for his deposition. The court was not required to relieve him of that obligation.” Id. at 27. Mr. López, unlike the defendant in Razmilovic, was allowed to appear virtually for his deposition. Yet he still disobeyed the dis- trict court’s order and failed to appear. On the record before us, we find Razmilovic persuasive. As the López appellants concede, default judgment is appro- priate where a less severe sanction would not ensure compliance. See Appellants’ Br. at 50. The district court’s determination on this score was not an abuse of discretion, as the López appellants tried to obstruct and delay the jury trial they demanded and obtained. Mr. López and his companies, in other words, demonstrated through their conduct that a less drastic sanction would not ensure compliance. A fugitive’s “absence entitles him to no advantage. If his unwillingness to appear in person results in non-compliance with a legitimate order of the court respecting pleading, discovery, the presentation of evidence, or other matters, he will be exposed to the same sanctions as any other uncooperative party.” Degen v. United States, 517 U.S. 820, 827 (1996). USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 22 of 27
22 Opinion of the Court 22-13798
C The López appellants assert that the denial of their motions for a protective order constituted reversible error because (i) the district court interpreted its own scheduling order inaccurately; (ii) they showed good cause for a protective order; and (iii) the court improperly applied the fugitive disentitlement doctrine. We are unpersuaded. Pursuant to Federal Rule of Civil Procedure 26(c) a court may “issue a protective order upon a finding of good cause.” In re Chiquita Brands Int’l, Inc., 965 F.3d at 1249. The party seeking such an order bears the burden of establishing that good cause exists. See id. at 1250. Good cause usually requires a particular and specific demonstration of fact, as distinguished from stereotyped and con- clusory statements. See United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978); 8A Richard L. Marcus. Fed. Prac. & Proc. § 2035 (3d ed. & June 2024 update). The López appellants argued in their first motion for a pro- tective order that no discovery whatsoever was permitted because the scheduling order did not expressly allow discovery and because the parties had not conducted a Rule 26(f ) scheduling conference. The district court, interpreting and explaining its own scheduling order, confirmed that discovery was contemplated, and that the plaintiffs were entitled to discovery. The court also explained that discovery was appropriate whether or not a Rule 26(f ) scheduling USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 23 of 27
22-13798 Opinion of the Court 23
conference had occurred because “once proceedings supplemen- tary have begun, the parties are entitled to discovery.” D.E. 523 at 2. See Salinas, 881 F.3d at 876. We find no abuse of discretion in the denial of the first mo- tion for a protective order. First, a district court is afforded wide discretion in interpreting its own orders, and “when an issuing judge interprets alleged ambiguities in his or her own order, we ac- cord substantial deference to that interpretation.” McLaurin v. Ter- minix Int’l Co., LP, 13 F.4th 1232, 1241 (11th Cir. 2021). Such defer- ence is appropriate here. The court understandably explained that it would not have provided a deadline for deposition designations if it did not intend to allow for discovery. Second, although a party generally may not seek discovery before a scheduling conference, discovery is permitted where a court orders it. See Fed. R. Civ. P. 26(d)(1). The court’s ruling that the López appellants had failed to establish good cause in support of their first motion for a protective order was therefore not erroneous. In their second motion for a protective order, the López ap- pellants asked to postpone Mr. López’s deposition by two days and objected to the duces tecum request for documents. But they pro- vided no persuasive reason as to why this requested delay was needed. Given that Mr. López was to appear virtually, his own travel or other logistical concerns could not have been the reasons. And, as the district court explained, the fact that one of his attor- neys might have been traveling did not prevent another of the at- torneys on the defense team from defending the deposition. USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 24 of 27
24 Opinion of the Court 22-13798
Mr. López also challenged some of the plaintiffs’ duces tecum requests in the second motion for a protective order. For example, he argued that the plaintiffs were not entitled to asset discovery. The district court rejected his challenges because of the fugitive disentitlement doctrine, and the López appellants contend that this constituted reversible error. Under Rule 34(b)(2)(C), “if a request for production is objec- tionable only in part, production should be afforded with respect to the unobjectionable portions.” Fed. R. Civ. P. 34, Advisory Com- mittee’s Note to 1993 Amendment. See also McLeod, Alexander, Pow- ell & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (“[E]ven if some of the law firm’s requests for production were ir- relevant, Quarles must have a valid objection to each one in order to escape the production requirement.”); Jay E. Granig & Jeffrey S. Kinsler, Handbook of Fed. Civ. Discovery and Disclosure § 9:3 (4th ed. & July 2024 update) (“If a request for production is objectiona- ble only in part, production should be afforded with respect to the unobjectionable portions.”). The problem for Mr. López is that, despite his representation to the district court that he would re- spond to requests for production within the time prescribed by Rule 34, he never provided the plaintiffs with a single document. And his complete failure to respond to or comply with the plain- tiffs’ duces tecum request makes it difficult for us to see how the de- nial of the second motion for a protective order improperly af- fected the court’s finding of willfulness or the entry of default judg- ment. USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 25 of 27
22-13798 Opinion of the Court 25
D The López appellants maintain that the district court orders denying their motions for a protective order acted as an injunction against them and violated Mr. López’s constitutional right of access to the court. As noted earlier, the court stated in its orders that the fugitive disentitlement doctrine barred Mr. López from seeking af- firmative relief with respect to the discovery sought by the plain- tiffs, but there was no blanket prohibition on the filing of motions. We need not address this argument with respect to the de- nial of the first motion for a protective order. As set out above, the district court denied that motion for lack of good cause, and only ruled alternatively that the fugitive disentitlement doctrine also barred Mr. López from seeking affirmative relief. Having upheld the court’s finding that the López appellants failed to establish good cause in their first motion for a protective order, there is no reason for us to consider whether the court’s alternative rationale consti- tuted an impermissible injunction. As to the denial of the second motion for a protective order, we come to the same conclusion with one caveat which we discuss below. In denying the second motion, the district court again found that the López appellants had failed to show good cause for post- poning Mr. López’s deposition by two days, and only ruled alterna- tively that the fugitive disentitlement doctrine also barred Mr. López from seeking affirmative relief. Because we have upheld the court’s finding that the López appellants failed to establish good cause in their second motion for a protective order, we need not USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 26 of 27
26 Opinion of the Court 22-13798
address whether the court’s alternative rationale amounted to an impermissible injunction. The caveat concerns Mr. López’s objection to the plaintiffs’ duces tecum request for documents. As to that objection, the district court rejected the challenge based only on the fugitive disentitle- ment doctrine. But the denial of the objection did not adversely affect Mr. López or the López appellants. Although Mr. López never produced any documents, he and the López appellants were sanctioned only for his failure to appear at the court-ordered depo- sition. Any error in denying the objection—if there were one— was harmless. See 28 U.S.C. § 211; Fed. R. Civ. P. 61. See also Palmer v. Hoffman, 318 U.S. 109, 116 (1943) (“He who seeks to have a judg- ment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.”). In any event, it seems to us that nothing prevented Mr. López from filing formal objections to the plaintiffs’ duces tecum re- quest, which would have required the plaintiffs to move to compel and forced the district court to rule on the objections. But Mr. López did not file any formal objections and also failed to produce any documents to the plaintiffs. Due to this complete failure to comply with his discovery obligations, we conclude that the district court’s application of the fugitive disentitlement doctrine to the duces tecum objections do not taint the finding of willfulness on the part of Mr. López or the entry of default judgment against him and the companies. USCA11 Case: 22-13798 Document: 47-1 Date Filed: 10/30/2024 Page: 27 of 27
22-13798 Opinion of the Court 27
IV We affirm the district court’s entry of default judgments against the López appellants as a sanction under Rule 37. AFFIRMED.