Billy Warner v. Tinder, INC.

Filing

Opinion issued by court as to Appellant Billy Warner. Decision: Reversed and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. Motion filed by Appellee Tinder, INC. is GRANTED. [7841680-2]. (See 01/17/2017 opinion)(CRW/RSR/RLA) The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-10537

Date Filed: 01/17/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10537
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-23790-JLK
BILLY WARNER,
individually and on behalf of all others similarly situated,
Plaintiff-Appellant,
versus
TINDER, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 17, 2017)
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:

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Billy Warner (“Warner”), a Florida resident and representative of a putative
class, appeals the dismissal, with prejudice, of his case against Tinder, Inc.
(“Tinder”). The instant action is substantially similar to another putative class
action filed by Warner in the Central District of California. Warner v. Tinder, Inc.,
No. 2:15-cv-01668-MMM-AJW (C.D. Cal. 2015). That case (“Warner I”) was
dismissed with leave to amend by the district court and then voluntarily dismissed
by Warner prior to the filing of the present action. Warner then filed this action in
the Southern District of Florida and Tinder moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6). After receiving briefing and without oral argument, the
district court found that both the first-filed doctrine and the prohibition against
judge shopping applied and that dismissal with prejudice was appropriate. 1 On
appeal, Warner argues that he violated neither the prohibition on judge shopping
nor the first-filed rule and that, in any event, the district court abused its discretion
when it dismissed the action with prejudice when lesser sanctions were available.
This Court has held that district courts possess the inherent power to police
their own dockets. Mingo v. Sugar Cane Growers Co-op of Fla., 864 F.2d 101, 102
(11th Cir. 1989). As a corollary to this power, judges have the authority to impose
formal sanctions on litigants ranging “from a simple reprimand to an order

1

There is a question on appeal as to whether the decision to grant the motion to dismiss
on these grounds was sua sponte. Because the answer to that question is immaterial to the
resolution of this case on appeal, we do not address it.
2

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dismissing the action with or without prejudice.” Id.; see also Goforth v. Owens,
766 F.2d 1533, 1535 (11th Cir. 1985) (“The court’s power to dismiss is an inherent
aspect of its authority to enforce its orders and insure prompt disposition of
lawsuits.”). Dismissal of a case with prejudice is considered “an extreme sanction
that may be properly imposed only when: (1) a party engages in a clear pattern of
delay or willful contempt (contumacious conduct); and (2) the district court
specifically finds that lesser sanctions would not suffice.” Betty K Agencies, Ltd.
v. M/V MONADA, 432 F.3d 1333, 1338 (11th Cir. 2005) (collecting cases).
“[F]indings satisfying both prongs of [this] standard are essential before dismissal
with prejudice is appropriate.” Id. at 1339. This Court reviews a decision of the
district court to dismiss with prejudice for abuse of discretion. Id. at 1337.
Warner first argues that this action is violative of neither the prohibition on
judge shopping nor the first-filed doctrine. As to the charge of judge shopping, he
argues that by refiling this action in the Southern District of Florida he was merely
being responsive to the concerns, expressed by the California federal court in
Warner I, that this action would be more properly prosecuted in his state of
residency. Likewise, to the extent that the district court’s ruling relied on the firstfiled rule, Warner argues that the doctrine is inapplicable. See Manuel v.
Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005) (“Where two actions
involving overlapping issues and parties are pending in two federal courts, there is
3

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a strong presumption across the federal circuits that favors the forum of the firstfiled suit under the first-filed rule.” (emphasis added)). Additionally, he argues that
the district court abused its discretion—the “outer boundary” of which this Court
has “articulated with crystalline clarity”—by failing to make findings on either of
the two prongs of the test laid out in Betty K Agencies.
As an initial matter, we are hesitant to conclude from the record on appeal
that this action is violative of either the prohibition on judge shopping or the firstfiled rule. 2 However, the resolution of this appeal does not require us to decide
those doctrines’ applicability because the district court failed to make the necessary
findings that Warner engaged in a clear pattern of delay or willful conduct and that
lesser sanctions—if indeed any were warranted—were insufficient. See, e.g., Betty
K Agencies, 432 F.3d at 1339 (“[F]indings satisfying both prongs of our standard
are essential . . . .); World Thrust Films, Inc. v. Int’l Family Entm’t, Inc., 41 F.3d
1454, 1456–57 (11th Cir. 1995) (vacating and remanding a dismissal with
prejudice for failure to make a finding on the second prong); Mingo, 864 F.2d at
102–03 (same). As this Court has noted, “[w]e rigidly require the district courts to
make these findings precisely ‘[b]ecause the sanction of dismissal with prejudice is
so unsparing . . . .’ ” Betty K Agencies, 432 F.3d at 1339 (quoting Mingo, 864 F.2d
2

Although we do not decide the issue, we are particularly skeptical of the conclusion that
this action would violate the first-filed rule. At no point was this case pending in two federal
courts at the same time—something that our case law appears to suggest is a requisite for
application of the rule. See Manuel, 430 F.3d at 1135.
4

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at 103) (alteration in original). Although this Court has occasionally concluded that
these necessary findings were implicit in a district court’s order, “we have never
suggested that the district court need not make that finding, which is essential
before a party can be penalized for his attorney’s misconduct.” World Thrust, 41
F.3d at 1456 (quoting Mingo, 864 F.2d at 102). Moreover, we have only been
willing to make such an inference when lesser sanctions would have greatly
prejudiced the defendant to the action. World Thrust, 41 F.3d at 1457.
In Mingo we empathized with the district court’s observations that “it would
be unfair to defendant to allow this unhappy litigation to drag on longer than it
already has,” and that “the circumstances of this case cry out for such a ‘just,
speedy, and inexpensive determination.’ ” Mingo, 864 F.2d at 103. Nonetheless we
concluded that “[b]ecause the sanction of dismissal with prejudice is so unsparing,
however, we hesitate to infer from this language that the trial court reflected upon
the wide range of sanctions at its disposal and concluded that none save dismissal
would spur this litigation to its just completion.” Id. Here, as there, we are
unwilling to sanction an imposition of the “extreme sanction” of dismissal with
prejudice absent clear findings that Warner engaged in contumacious conduct and
that lesser sanctions would have been insufficient to accomplish the district court’s
objective.3

3

We note as well that, unlike the court in Mingo, the district court here has provided no
5

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Accordingly, we REVERSE the decision of the district court to dismiss
Warner’s complaint with prejudice and REMAND for further proceedings not
inconsistent with this opinion.4
REVERSED AND REMANDED.

language from which we could make the necessary inference even if we were so inclined.
4

We have also reviewed Tinder’s Request for Judicial Notice and recognize its potential
relevance to these proceedings on remand. Accordingly, the Request for Judicial Notice is
GRANTED and we commit to the district court’s discretion its applicability on remand.
6