Keith Stansell v. Samark Jose Lopez Bello

11th Cir.10/30/2024

View on CourtListener

AI Case Brief

Generate an AI-powered case brief with:

📋Key Facts

⚖️Legal Issues

📚Court Holding

💡Reasoning

🎯Significance

Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries

Full Opinion

[[COURTLISTENER_SUBOPINION {"id":"10629558","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
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.

Keith Stansell v. Samark Jose Lopez Bello

AI Case Brief

Ask AI About This Case

Full Opinion

Case Information