David Maus v. John Patrick Ennis, 11th Cir. (2013)

Case: 12-13802
Date Filed: 03/27/2013
Page: 1 of 7
[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13802
Non-Argument Calendar
________________________
D.C. Docket No. 6:10-cv-01904-GAP-TBS
DAVID MAUS,
MARK LOUIS ORNSTEIN,
Plaintiffs-Counter
Defendants-Appellees,
versus
JOHN PATRICK ENNIS,
Defendant-Counter ClaimantThird Party Plaintiff-Appellant,
TOM BUCK, et al.,
Third Party Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 27, 2013)
Case: 12-13802
Page: 2 of 7
Before HULL, JORDAN and FAY, Circuit Judges.

PER CURIAM:
John Ennis, proceeding pro se, appeals the district courts order granting a
total of $48,771.50 in attorneys fees and costs to David Maus and Mark Ornstein
(collectively, the plaintiffs) following the entry of a default judgment against
Ennis in an action filed pursuant to the Anticybersquatting Consumer Protection
Act (ACPA), 15 U.S.C. 1125(d) and Cyberpiracy Protection for Individuals
(CPI), 15 U.S.C. 8131(2). On appeal, Ennis argues that (1) the district court
erroneously entered a default judgment against him; (2) the district court and the
plaintiffs harassed him by not using his religious names; and (3) the district court
erred in finding him liable for damages, fines, and attorneys fees. For the reasons
set forth below, we affirm the district courts award of attorneys fees and costs.
I.
On December 21, 2010, Maus initiated a civil action against Ennis, and he
later added Ornstein as a plaintiff. Subsequently, the plaintiffs filed a motion for
sanctions, alleging that Ennis had sent them harassing e-mails, published a
defamatory internet article, and refused to communicate with their counsel.
Before the court ruled on the motion for sanctions, Maus and Ornstein filed
a second amended complaint, alleging: (1) violations of the ACPA, 15 U.S.C.
1125(d) (Count One); (2) invasion of privacy (Count Three); and
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Case: 12-13802
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(3) violations of the CPI, 15 U.S.C. 8131 (Count Four). In Count Two, the
plaintiffs requested injunctive relief. Ennis filed an answer and a counterclaim.
After the plaintiffs submitted their amended complaint, the magistrate judge
issued a report and recommendation that the plaintiffs motion for sanctions be
granted, in part, and denied, in part. Specifically, Ennis had exhibited conduct that
was reprehensible, and he had acted intentionally, in bad faith, and for
oppressive reasons. Thus, the court should admonish Ennis for his conduct and
advise him that any future rudeness or disrespect to counsel or the [c]ourt would
result in more severe sanctions. The district court adopted the magistrates report
and recommendation.
Subsequently, the plaintiffs filed a motion to compel Ennis to respond to
discovery requests, and the district court granted the motion. The plaintiffs then
filed a second motion for sanctions, including an entry of default judgment and
dismissal of Enniss counterclaim, alleging that Ennis had submitted inadequate
and incomplete responses to their discovery requests. The magistrate issued a
report and recommendation that the court grant the motion.
Over Enniss objections, on December 16, 2011, the district court adopted
the report and recommendation, and granted the plaintiffs motion for sanctions.
The court instructed the plaintiffs that they must file a motion for entry of default
Case: 12-13802
Page: 4 of 7
judgment and, on January 6, 2012, the plaintiffs filed such a motion, requesting
reasonable attorneys fees and statutory damages.
After an evidentiary hearing, the magistrate issued a report and
recommendation that the district court grant the plaintiffs motion for entry of a
default judgment as to the ACPA claim (Maus only) and the CPI claim (both
plaintiffs), and deny it as to the remaining claims. Further, considering the
egregiousness of Enniss conduct, an award of costs and attorneys fees was
appropriate, and the court should reserve jurisdiction to award those fees and costs
upon a motion by the plaintiffs. On April 13, 2012, the district court adopted the
report and recommendation, granting, in part, and denying, in part, the plaintiffs
motion for a default judgment.
On April 27, 2012, Maus and Ornstein filed the instant post-judgment
motion for attorneys fees and costs. The district court granted the plaintiffs
motion for $545 in costs, but denied without prejudice their request for attorneys
fees because they failed to provide an itemized billing statement.
Subsequently, the plaintiffs filed an amended motion for attorneys fees,
alleging that they had incurred $48,226.50 in attorneys fees. In support, they
submitted an itemized billing statement showing that they had been billed a total of
$49,553.25 by their attorneys and an affidavit from a Florida attorney declaring
that, in his opinion, $49,000 was a reasonable attorneys fee for this case.
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Case: 12-13802
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On June 14, 2012, the district court granted the plaintiffs request for
attorneys fees, finding that most of the fees were billed at $210 per hour, which
was well within the zone of reasonableness for federal trial lawyers in Central
Florida. Further, the time expended by the plaintiffs attorneys was also
reasonable under the circumstances, as the progress of the case was thwarted by
Enniss conduct. Thus, the court ordered the entry of a money judgment against
Ennis in the amount of $545 in costs and $48,226.50 in attorneys fees. On July
16, 2012, Ennis filed the instant notice of appeal from that order.
II.
We review an award of attorneys fees under the abuse of discretion
standard. Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712, 717
(11th Cir. 2002). Under an abuse-of-discretion standard, we must affirm unless we
find that the district court has made a clear error of judgment, or has applied the
wrong legal standard. Norelus v. Dennys, Inc., 628 F.3d 1270, 1280 (11th Cir.
2010). Pursuant to the CPI statute, a district court has discretion to award costs
and attorneys fees to the prevailing party. 15 U.S.C. 8131(2). However, issues
not briefed on appeal by a pro se litigant are deemed abandoned. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Generally, in a civil case, a notice
of appeal must be filed within 30 days after entry of the judgment or order
appealed from. Fed.R.App.P. 4(a)(1)(A). In civil cases, the timely filing of a
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Case: 12-13802
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notice of appeal is a mandatory prerequisite to the exercise of appellate

jurisdiction. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001).
As an initial matter, in the instant appeal, we lack jurisdiction to consider the
district courts December 16, 2011, order, imposing sanctions against Ennis or its
April 13, 2012, order, entering a partial default judgment against him, including a
determination that he was liable for attorneys fees and costs. Specifically, Enniss
instant notice of appeal was filed on July 16, 2012, more than 90 days after the
April 2012 order, and as such, he may not challenge issues that were resolved in
that order or in any prior orders. See Fed.R.App.P. 4(a)(1)(A); Rinaldo, 256 F.3d
at 1278.
Here, our jurisdiction is limited to a review of the district courts June 15,
2012, order granting the plaintiffs motion for $545 in costs and $48,226.50 in
attorneys fees. On appeal, Ennis has abandoned any challenge to the district
courts determination regarding the appropriate amount of attorneys fees and costs
because he fails to raise any arguments related to that issue on appeal. Timson, 518
F.3d at 874. Instead, Enniss brief focuses exclusively on the district courts
imposition of sanctions, its entry of a default judgment against him, and the district
court judges failure to address him by certain religious names. Although he made
passing references to attorneys fees and costs in challenging the merits of the
Case: 12-13802
Page: 7 of 7
default judgment, he does not argue that the district court abused its discretion in
determining that $48,771.50 in attorneys fees and costs was warranted.
Regardless, even if Ennis had not abandoned any challenge to the amount of
the award, the district court did not abuse its discretion in awarding the plaintiffs
$545 in costs and $48,226.50 in attorneys fees. See Shannon, 292 F.3d at 717.
Specifically, Elliss liability for costs and attorneys fees had already been
determined in a prior order and, before awarding a specific amount, the district
court required the plaintiffs to submit an itemized billing statement. The billing
statement verified that the plaintiffs had been billed a total of $49,553.25 by their
attorneys. Further, an affidavit from a Florida attorney declared that the amount
charged was reasonable for this case. Thus, the district courts determination as to
the appropriate amount of costs and attorneys fees was supported by the record
and did not constitute a clear error in judgment. See Norelus, 628 F.3d at 1280.
For the foregoing reasons, we affirm the award of attorneys fees and costs.
AFFIRMED.

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Case: 12-13802

Date Filed: 03/27/2013

[DO NOT PUBLISH]

Date Filed: 03/27/2013

Before HULL, JORDAN and FAY, Circuit Judges.

Date Filed: 03/27/2013

Date Filed: 03/27/2013

Date Filed: 03/27/2013

Date Filed: 03/27/2013

notice of appeal is a mandatory prerequisite to the exercise of appellate

Date Filed: 03/27/2013

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