David Petrano, et al v. Nationwide Mutual Fire Insuran, et al

Filing

Opinion issued by court as to Appellants Mary Katherine Day-Petrano and David Frank Petrano in 13-11984, 13-13351, 13-13413, 13-14119. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. [13-11984, 13-13351, 13-13413, 13-14119]

Case: 13-11984

Date Filed: 11/04/2014

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 13-11984, 13-13351, 13-13413, 13-14119
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-00086-SPM-GRJ
DAVID F. PETRANO,
MARY KATHERINE DAY-PETRANO,
Plaintiffs-Appellants,
versus
OLD REPUBLIC NATIONAL
TITLE INSURANCE COMPANY, et al.,
Defendants,
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY,
EARL CHARLES LAW,
CARL SCHWAIT,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(November 4, 2014)

Case: 13-11984

Date Filed: 11/04/2014

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Before WILSON, WILLIAM PRYOR and FAY, Circuit Judges.
PER CURIAM:
David Petrano and his wife, Mary Katherine Day-Petrano, appeal pro se the
dismissal with prejudice of their amended complaint against Nationwide Mutual
Fire Insurance Company, and two of its agents, Earl Charles Law and Carl
Schwait. After the Petranos filed a complaint in a Florida court, Old Republic
National Title Insurance Company removed the action based on federal question
jurisdiction. See 28 U.S.C. §§ 1331, 1441(a). The district court dismissed the
Petranos’ original complaint and their amended complaint for failure to comply
with Federal Rule of Civil Procedure 8. The Petranos challenge the dismissal of
their amended complaint; an award of $40,316 to Nationwide and Schwait; and the
denial of their motions for sanctions and for relief from the final judgment. We
affirm.
The Petranos argue that the district court lacked subject-matter jurisdiction
to entertain their original complaint, but we disagree. Old Republic was entitled to
remove the action because the Petranos’ complaint alleged violations of federal
laws, including the Americans with Disabilities Act, 42 U.S.C. §§ 1981, 1982,
1985, 1986, 12112, 12182, the Rehabilitation Act, 29 U.S.C. § 794, and the Equal
Protection Clause of the Fourteenth Amendment, U.S. Const. Amend. 14. See 28
U.S.C. §§ 1331, 1441(a). Although Old Republic removed the action without

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obtaining the express consent of at least one defendant, see id. § 1446(b)(2)(A), the
Petranos failed within 30 days to move to remand the action based on that nonjurisdictional defect in the removal procedure, see id. § 1447(c). See In re Bethesda
Mem’l Hosp., Inc., 123 F.3d 1407, 1410 (11th Cir. 1997). And the district court
correctly denied the Petranos’ belated motion to remand the action because a final
judgment had already been entered against them. See 28 U.S.C. § 1447(c).
The district court did not abuse its discretion when it dismissed with
prejudice the Petranos’ amended complaint. The dismissal of a complaint is an
appropriate sanction when a plaintiff engages in “willful conduct and . . . lesser
sanctions are inadequate,” Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006),
and the record supports the finding that the Petranos defiantly refused to comply
with an order to amend their complaint to comply with the Federal Rule of Civil
Procedure 8. The Petranos complained that about being discriminated against by
public officials, federal and state agencies, insurance companies and their agents,
and legal firms involved in claims for insurance benefits and in disputes over a
contract and real property. A magistrate judge issued a 21-page order that
described the complaint as a “shotgun pleading”; identified its deficiencies;
explained how to remedy those deficiencies; and instructed the Petranos to file an
amended complaint “limited to one—and only one—occurrence, which raises a
federal claim.” In contravention to that order, the Petranos amended their
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complaint by enlarging it from a 139-page pleading that alleged 17 claims against
14 defendants to a 223-page pleading that alleged 16 claims against 157
defendants. And when ordered to show cause why the amended complaint should
not be dismissed, Mary Petrano moved to file a second amended complaint that
was 204 pages long and alleged 19 claims against 156 defendants. The district
court was entitled to find that the Petranos willfully disobeyed the court order and
that the dismissal of the amended complaint was an appropriate sanction for their
contumacious conduct. See Fed. R. Civ. P. 41(b); Zocaras, 465 F.3d at 483. The
Petranos argue that they were incapable of complying with the rules of procedure,
but the district court was entitled to find that the Petranos—at least one of whom is
licensed to practice law in Florida— could comply with the rules of procedure.
The district court also did not abuse its discretion when it awarded more than
$40,000 in costs and attorney’s fees to Nationwide and Schwait. A district court
may impose monetary sanctions if a party’s filings are frivolous and needlessly
increase the cost of litigation, Fed. R. Civ. P. 11(b),(c), and the Petranos do not
dispute the finding that they required Nationwide and Schwait to respond to
“repeated frivolous claims” and motions for sanctions that were “devoid of merit,
frivolous, and retaliatory and vexatious in nature.” The Petranos fail to explain
how the district court “made a clear error of judgment[] or . . . applied the wrong
legal standard” when it awarded damages to Nationwide and Schwait. Amlong &
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Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1238 (11th Cir. 2007) (quoting Maiz
v. Virani, 253 F.3d 641, 662 (11th Cir. 2001)).
The district court did not abuse its discretion when it denied the Petranos’
six motions for sanctions and their motion for relief from the final judgment. The
Petranos argue that the district court denied summarily their motions for sanctions,
but the district court explained in its rulings that the motions lacked factual and
legal merit. And the district court was entitled to dismiss summarily the Petranos’
motion for relief from the judgment in which they argued that Nationwide and its
agents fraudulently induced the district court to dismiss the amended complaint.
See Fed. R. Civ. P. 60(b). The district court plainly dismissed the complaint for the
Petranos’ failure to file a short and plain statement for relief, id. 8(a), and their
willful disregard of a court order, id. 41(b).
We AFFIRM the dismissal of the Petranos’ amended complaint and the
award of sanctions against them.

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