Case: 19-12378 Date Filed: 11/25/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 19-12378; 19-12901 Non-Argument Calendar ________________________
D.C. Docket Nos. 2:16-cv-00776-SPC-CM, 2:16-cv-00776-SPC-UAM
LOUIS MATTHEW CLEMENTS,
Plaintiff-Appellant,
versus
3M ELECTRONIC MONITORING,
Defendant-Appellee.
________________________
Appeals from the United States District Court for the Middle District of Florida ________________________
(November 25, 2019)
Before MARTIN, GRANT and TJOFLAT, Circuit Judges.
PER CURIAM: Case: 19-12378 Date Filed: 11/25/2019 Page: 2 of 7
Louis Clements, proceeding pro se, sued 3M Electronic Monitoring (“3M”) 1
in federal court alleging that an ankle-monitoring bracelet 3M manufactured was
defective. We have previously issued orders affirming the dismissal of his second
amended complaint and affirming the denial of two motions for reconsideration.
Clements now appeals from the denial of his third and fourth motions for
reconsideration. Following careful review, we affirm.
I.
Clements filed his initial complaint on October 19, 2016. He amended his
complaint twice, after which 3M moved to dismiss all his claims. The district
court dismissed Clements’s claims as time-barred and denied his motion for
reconsideration and recusal. Clements requested leave to amend to add a claim of
intentional infliction of emotional distress (“IIED”) in his opposition to the motion
to dismiss, the district court’s order on the motion to dismiss did not address
Clements’s request to amend. Clements, in turn, did not mention this request in his
motion for reconsideration or his initial appeal. We affirmed the district court’s
dismissal on the ground that Clements failed to allege physical harm to his person
or property. See Clements v. Attenti US, Inc. (“Clements I”), 735 F. App’x 661,
663–64 (11th Cir. 2018) (per curiam) (unpublished). Physical harm is a necessary
1 During this case, 3M Electronic Monitoring was sold by 3M Company and the company name was changed to Attenti US, Inc. For the sake of continuity, we continue to use “3M.” 2 Case: 19-12378 Date Filed: 11/25/2019 Page: 3 of 7
element to recovery under either a theory of strict products liability or negligence
in Florida. See id. at 663. Because the issue had not been raised, our order
affirming dismissal of Clements’s case did not address whether dismissal without
leave to amend was appropriate. Id. at 664.
Clements then filed a second motion for reconsideration before the district
court, this time arguing he should have been granted leave to amend his complaint
to allege claims of IIED. The district court denied his motion and again, this Court
affirmed. See Clements v. 3M Elec. Monitoring (“Clements II”), 770 F. App’x
506, 508–09 (11th Cir. 2019) (per curiam) (unpublished). Our order on the second
motion for reconsideration stated that, while the district court should have
addressed Clements’s request for leave to amend at the motion to dismiss stage of
litigation, the failure to do so was not so extraordinary as to require reconsideration
under Federal Rule of Civil Procedure 60(b). Id. at 508.
Following our issuance of the order in Clements II but before the mandate
issued, Clements submitted his third motion for reconsideration before the district
court. This time his motion urged the court to reconsider its initial motion
dismissing his complaint and grant him leave to amend his complaint. The district
court again denied Clements relief. Clements then moved the district court for
reconsideration a fourth time. In his fourth motion, Clements asked the district
court to reconsider its order denying his third motion for reconsideration. He
3 Case: 19-12378 Date Filed: 11/25/2019 Page: 4 of 7
argued he should be allowed to file a third amended complaint alleging a
“continuing tort” that would vitiate the court’s concerns about his claims being
time-barred and facts that would give rise to his emotional distress claims. The
district court denied the motion, holding Clements (1) waived his right to challenge
the denial of his first motion to amend by not including it in his initial appeal and
(2) had not shown reconsideration was needed to correct clear error or prevent
manifest injustice.
II.
In this consolidated appeal, Clements challenges the denial of his third and
fourth motions for reconsideration. 3M has filed a brief in opposition to both
appeals. 3M also asks us to impose a filing injunction on Clements.
A.
First, we affirm the district court’s denial of Clements’s motions for
reconsideration. Earlier this year, we said the district court did not abuse its
discretion when it denied Clements’s motion to reconsider the denial of his motion
for leave to amend. Clements II, 770 F. App’x at 508–09. We held that, even if
Clements was correct that the district court should have addressed his motion to
amend at an earlier stage in the litigation, he was not entitled to relief at this point
because he had forgone “the opportunity to challenge the district court’s failure to
address his motion for leave to amend both in his initial motion for reconsideration
4 Case: 19-12378 Date Filed: 11/25/2019 Page: 5 of 7
and during his first appeal to this Court.” Id. at 508. This holding is the law of the
case and binds us here. Clements’s third and fourth motions raise the same issues
based on the same evidence as in his earlier, unsuccessful motions. See United
States v. Escobar-Urrego, 110 F.3d 1556, 1561 (11th Cir. 1997) (“[A] decision of a
legal issue or issues establishes the ‘law of the case’ and must be followed in all
subsequent proceedings in the same case . . . .” (alteration adopted and quotation
marks omitted)).
Clements says denying him the ability to amend would result in substantial
injustice. However, this Court has already concluded that, even if the district court
should have addressed his request for leave to amend during the motion to dismiss
stage of litigation, this did not warrant extraordinary relief. See Clements II, 770
F. App’x at 508–09. In addition, Clements’s arguments regarding the district
court’s decision to take judicial notice of certain documents filed in state court are
irrelevant insofar as those documents related only to the district court’s dismissal
based on the statute of limitations. As stated above, this Court’s decision to affirm
the dismissal of Clements’s case was not based on the statute of limitations. See
Clements I, 735 F. App’x at 663–64. Thus, there is no manifest injustice
warranting relief. See Escobar-Urrego, 110 F.3d at 1561 (stating that manifest
injustice may be found where decision below was clear, reversible error).
5 Case: 19-12378 Date Filed: 11/25/2019 Page: 6 of 7
B.
3M urges us to enjoin Clements from making any further pro se filings
without the consent of a magistrate judge. Although we have the power to sanction
a frivolous litigant from filing further papers without leave of the court, see Higdon
v. Fulton County, 746 F. App’x 796, 800 (11th Cir.
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Case: 19-12378 Date Filed: 11/25/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 19-12378; 19-12901 Non-Argument Calendar ________________________
D.C. Docket Nos. 2:16-cv-00776-SPC-CM, 2:16-cv-00776-SPC-UAM
LOUIS MATTHEW CLEMENTS,
Plaintiff-Appellant,
versus
3M ELECTRONIC MONITORING,
Defendant-Appellee.
________________________
Appeals from the United States District Court for the Middle District of Florida ________________________
(November 25, 2019)
Before MARTIN, GRANT and TJOFLAT, Circuit Judges.
PER CURIAM: Case: 19-12378 Date Filed: 11/25/2019 Page: 2 of 7
Louis Clements, proceeding pro se, sued 3M Electronic Monitoring (“3M”) 1
in federal court alleging that an ankle-monitoring bracelet 3M manufactured was
defective. We have previously issued orders affirming the dismissal of his second
amended complaint and affirming the denial of two motions for reconsideration.
Clements now appeals from the denial of his third and fourth motions for
reconsideration. Following careful review, we affirm.
I.
Clements filed his initial complaint on October 19, 2016. He amended his
complaint twice, after which 3M moved to dismiss all his claims. The district
court dismissed Clements’s claims as time-barred and denied his motion for
reconsideration and recusal. Clements requested leave to amend to add a claim of
intentional infliction of emotional distress (“IIED”) in his opposition to the motion
to dismiss, the district court’s order on the motion to dismiss did not address
Clements’s request to amend. Clements, in turn, did not mention this request in his
motion for reconsideration or his initial appeal. We affirmed the district court’s
dismissal on the ground that Clements failed to allege physical harm to his person
or property. See Clements v. Attenti US, Inc. (“Clements I”), 735 F. App’x 661,
663–64 (11th Cir. 2018) (per curiam) (unpublished). Physical harm is a necessary
1 During this case, 3M Electronic Monitoring was sold by 3M Company and the company name was changed to Attenti US, Inc. For the sake of continuity, we continue to use “3M.” 2 Case: 19-12378 Date Filed: 11/25/2019 Page: 3 of 7
element to recovery under either a theory of strict products liability or negligence
in Florida. See id. at 663. Because the issue had not been raised, our order
affirming dismissal of Clements’s case did not address whether dismissal without
leave to amend was appropriate. Id. at 664.
Clements then filed a second motion for reconsideration before the district
court, this time arguing he should have been granted leave to amend his complaint
to allege claims of IIED. The district court denied his motion and again, this Court
affirmed. See Clements v. 3M Elec. Monitoring (“Clements II”), 770 F. App’x
506, 508–09 (11th Cir. 2019) (per curiam) (unpublished). Our order on the second
motion for reconsideration stated that, while the district court should have
addressed Clements’s request for leave to amend at the motion to dismiss stage of
litigation, the failure to do so was not so extraordinary as to require reconsideration
under Federal Rule of Civil Procedure 60(b). Id. at 508.
Following our issuance of the order in Clements II but before the mandate
issued, Clements submitted his third motion for reconsideration before the district
court. This time his motion urged the court to reconsider its initial motion
dismissing his complaint and grant him leave to amend his complaint. The district
court again denied Clements relief. Clements then moved the district court for
reconsideration a fourth time. In his fourth motion, Clements asked the district
court to reconsider its order denying his third motion for reconsideration. He
3 Case: 19-12378 Date Filed: 11/25/2019 Page: 4 of 7
argued he should be allowed to file a third amended complaint alleging a
“continuing tort” that would vitiate the court’s concerns about his claims being
time-barred and facts that would give rise to his emotional distress claims. The
district court denied the motion, holding Clements (1) waived his right to challenge
the denial of his first motion to amend by not including it in his initial appeal and
(2) had not shown reconsideration was needed to correct clear error or prevent
manifest injustice.
II.
In this consolidated appeal, Clements challenges the denial of his third and
fourth motions for reconsideration. 3M has filed a brief in opposition to both
appeals. 3M also asks us to impose a filing injunction on Clements.
A.
First, we affirm the district court’s denial of Clements’s motions for
reconsideration. Earlier this year, we said the district court did not abuse its
discretion when it denied Clements’s motion to reconsider the denial of his motion
for leave to amend. Clements II, 770 F. App’x at 508–09. We held that, even if
Clements was correct that the district court should have addressed his motion to
amend at an earlier stage in the litigation, he was not entitled to relief at this point
because he had forgone “the opportunity to challenge the district court’s failure to
address his motion for leave to amend both in his initial motion for reconsideration
4 Case: 19-12378 Date Filed: 11/25/2019 Page: 5 of 7
and during his first appeal to this Court.” Id. at 508. This holding is the law of the
case and binds us here. Clements’s third and fourth motions raise the same issues
based on the same evidence as in his earlier, unsuccessful motions. See United
States v. Escobar-Urrego, 110 F.3d 1556, 1561 (11th Cir. 1997) (“[A] decision of a
legal issue or issues establishes the ‘law of the case’ and must be followed in all
subsequent proceedings in the same case . . . .” (alteration adopted and quotation
marks omitted)).
Clements says denying him the ability to amend would result in substantial
injustice. However, this Court has already concluded that, even if the district court
should have addressed his request for leave to amend during the motion to dismiss
stage of litigation, this did not warrant extraordinary relief. See Clements II, 770
F. App’x at 508–09. In addition, Clements’s arguments regarding the district
court’s decision to take judicial notice of certain documents filed in state court are
irrelevant insofar as those documents related only to the district court’s dismissal
based on the statute of limitations. As stated above, this Court’s decision to affirm
the dismissal of Clements’s case was not based on the statute of limitations. See
Clements I, 735 F. App’x at 663–64. Thus, there is no manifest injustice
warranting relief. See Escobar-Urrego, 110 F.3d at 1561 (stating that manifest
injustice may be found where decision below was clear, reversible error).
5 Case: 19-12378 Date Filed: 11/25/2019 Page: 6 of 7
B.
3M urges us to enjoin Clements from making any further pro se filings
without the consent of a magistrate judge. Although we have the power to sanction
a frivolous litigant from filing further papers without leave of the court, see Higdon
v. Fulton County, 746 F. App’x 796, 800 (11th Cir. 2018) (per curiam)
(unpublished) (recognizing the federal courts’ inherent power to enjoin abusive
and vexatious litigation), we decline to do so here. Where one litigant seeks to
prevent another litigant from filing further papers in conjunction with a particular
action, relief is better sought from the district court in the first instance. See
Higdon, 746 F. App’x at 800 (collecting cases where district courts imposed a
filing injunction). A circuit-wide filing injunction could be a proper remedy
against a litigant who has engaged in abusive litigation practices across multiple
courts and cases. Cf. Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993) (“[T]he
scope of the [filing injunction] must be narrowly tailored to fit the particular
circumstances of the case before the District Court.”); Vinson v. Heckmann, 940
F.2d 114, 116–17 (5th Cir. 1991) (per curiam) (imposing circuit-wide filing
injunction after existing sanctions proved insufficient to deter frivolous litigation
tactics). However, 3M has presented no evidence of such widespread abuse. To
the extent 3M seeks monetary sanctions, we deny the motion given Clements’s pro
se status. See Weaver v. Mateer & Harbert, P.A., 523 F. App’x 565, 566 n.1 (11th
6 Case: 19-12378 Date Filed: 11/25/2019 Page: 7 of 7
Cir. 2013) (per curiam) (unpublished); Woods v. IRS, 3 F.3d 403, 404 (11th Cir.
1993) (per curiam). We note, however, that Clements’s repeated motions for
reconsideration smack of frivolity, and if this pattern continues, 3M could be
justified in seeking sanctions from the district court. See Weaver, 523 F. App’x
at 566 n.1.
III.
The district court’s orders denying Clements’s third and fourth motions for
reconsideration are AFFIRMED. 3M’s motion for sanctions is DENIED
WITHOUT PREJUDICE.