Donnahue George v. Ken Griffin, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14208
Non-Argument Calendar
____________________
DONNAHUE GEORGE,
Plaintiff-Appellant,
versus
KEN GRIFFIN,
CITADEL SECURITIES MARKET MAKER,
CITADEL CONNECT DARK POOL,
CITADEL LLC HEDGE FUND,
SECURITIES EXCHANGE COMMISSION, et al.,
Defendants-Appellees.
____________________
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2 Opinion of the Court 21-14208
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cv-61719-KMM
____________________
Before J ORDAN, BRANCH , and J ULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff’s claims in this pro se action arise from investment
losses allegedly caused by the January 2021 GameStop short selling
incident and other market manipulation schemes he claims were
orchestrated by the various individuals, corporate entities, and gov-
ernment agencies named as defendants in the case. The district
court dismissed the case without prejudice when the parties failed
to submit a joint scheduling report within the time frame required
by the pretrial order. Plaintiff appeals the dismissal, and he also
appeals the district court’s rulings on his related motions to reopen
the case, require Defendants to participate in the scheduling pro-
cess, impose Rule 37 sanctions, and grant preliminary injunctive
relief, among other things.
Based on our review of the record, Plaintiff has filed his ap-
peal prematurely and without giving the district court an oppor-
tunity to rule on his latest round of pending motions. Accordingly,
we do not address the merits of the appeal but rather REMAND
the case so the district court can make the appropriate rulings.
Given our decision to remand instead of addressing the merits of
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21-14208 Opinion of the Court 3
the appeal, we DENY as moot the motion filed by Defendants to
dismiss the appeal for lack of jurisdiction.
BACKGROUND
Plaintiff filed this pro se action on August 17, 2021, asserting
claims against an individual and several corporate entities involved
in the January 2021 GameStop short selling incident and other al-
leged stock market manipulation schemes. Plaintiff claimed the
GameStop incident and other schemes caused him to incur nearly
$2 million in investment losses. In addition to the entities allegedly
involved in the scheme, Plaintiff named the Securities Exchange
Commission (“SEC”) and various other government agencies and
government affiliated entities as defendants in the action, claiming
that their failure to properly oversee and regulate the stock market
contributed to his losses.
Plaintiff alleged in his initial complaint that Defendants col-
lectively conspired to create an illegal monopoly to “control and
manipulate the price” of GameStop and other stock via illegal ac-
tions that included counterfeiting and selling fake shares of stock.
According to Plaintiff, the SEC and other government agencies
turned a blind eye to and were thus complicit in the manipulation.
In his initial complaint, Plaintiff asserted breach of contract, federal
antitrust, and civil Racketeer Influenced and Corrupt Organiza-
tions Act (“RICO”) claims against Defendants.
The district court entered a pretrial order in the case requir-
ing the parties to hold a scheduling conference within twenty days
after the first responsive pleading by the last responding defendant
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4 Opinion of the Court 21-14208
or within sixty days after the filing of the complaint, whichever oc-
curred first. The order advised Plaintiff that if all the named de-
fendants had not been served by the expiration of that deadline,
Plaintiff should move for an enlargement of time to perfect service
and complete the scheduling process, not to exceed ninety days
from the filing of the complaint. The parties were further in-
structed to file a joint scheduling report within ten days of the
scheduling conference and told that failure to comply with that
deadline could result in “dismissal, default, and the imposition of
other sanctions.” The order outlined various items that should be
included in the conference and report, including the procedure for
exchanging documents and witness lists and the process for discuss-
ing the nature and basis of the claims asserted in the complaint and
the possibility for settlement.
Plaintiff subsequently filed an amended complaint, which as-
serted the same claims as his initial complaint and added allegations
related to a Ponzi scheme Defendants allegedly were conducting.
Plaintiff attached a statement to the amended complaint indicating
that a copy of the complaint and a summons, along with a waiver
of service form and a stamped return envelope, had been sent to
the following defendants on August 17, 2021: the SEC, Ken Griffin,
Citadel Securities Market Maker, Citadel Connect Dark Pool, Cita-
del LLC Hedge fund, the Financial Industry Regulatory Authority
(named in the complaint as “FINRA”), the Depository Trust
& Clearing Corporation (“DTCC”), WeBull Financial LLC, and
Robinhood Financial LLC. Plaintiff later indicated that the
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21-14208 Opinion of the Court 5
Commodity Futures Trading Commission (“CFTC”) had been
added as a defendant in the case.
In connection with his amended complaint, Plaintiff filed a
motion for a preliminary injunction prohibiting Defendants from
continuing to trade in or destroying documents related to the
stocks at issue in the case. Plaintiff attached a statement certifying
that he had sent a copy of the motion by certified mail to Defend-
ants. The district court stayed briefing on the motion, noting that
Defendants had yet to appear in the case and that it was not clear
they had been properly served with the motion despite Plaintiff’s
statement. The court indicated that it would set a briefing schedule
for the preliminary injunction motion upon a showing that De-
fendants were on notice of the motion or upon their appearance in
the case.
Defendants Griffin, Robinhood Financial, and the Citadel
entities subsequently waived or provided proof of service. As to
the remaining defendants—FINRA, DTCC, CFTC, WeBull, and
the SEC—Plaintiff filed a motion for an order authorizing alterna-
tive service by email, publication, or certified mail return receipt.
In support of the motion, Plaintiff claimed he had made several un-
successful attempts to perfect service by a professional process
server, and he submitted evidence in the form of a certified mail
return receipt that all these defendants were aware of the lawsuit.
The district court denied the motion, noting that Plaintiff did not
reference or appear to have complied with Federal Rule 4(i)(2),
which governs service on a federal agency.
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6 Opinion of the Court 21-14208
Shortly thereafter, defendants FINRA and DTCC submitted
a waiver of service, leaving the SEC, WeBull Financial LLC, and
CFTC to be served. Upon receiving notice of the FINRA and
DTCC waivers, the district court entered an order setting a briefing
schedule on Plaintiff’s pending motion for a preliminary injunc-
tion. The court noted in its order that nearly all the named defend-
ants had filed an appearance or waived service and were on ade-
quate notice of the preliminary injunction motion. Accordingly,
the court ordered the defendants who had appeared and/or waived
service to respond to the motion within two weeks and set a time
for Plaintiff’s reply.
On October 29, 2021, while the preliminary injunction mo-
tion remained pending, the district court entered a paperless order
after undertaking a “sua sponte examination of the record.” The
court noted in its order that, based on the timelines set out in the
pretrial order, the deadline for the parties to submit a joint sched-
uling report was October 27, 2021. Because the deadline had
passed and the parties had not yet submitted a report, the court
ordered that the case be dismissed without prejudice, and it denied
the pending motion for a preliminary injunction as moot. The
court instructed the clerk to close the case, but advised the parties
that they could move to reopen the matter upon the filing of the
required report. The case was closed that same day.
Plaintiff immediately filed a motion to reopen the case and
to amend the complaint. However, Plaintiff did not address in his
motion the court’s rationale for dismissing the case: the failure to
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21-14208 Opinion of the Court 7
submit a joint scheduling report. Instead, Plaintiff inexplicably ar-
gued that he was unaware of the deadline for filing an amended
complaint because he did not receive notice of orders entered in
the case until they were mailed to him, and that he recently had to
travel to the Dominican Republic to care for his elderly father.
Plaintiff stated that his amended complaint was ready to be filed
and he urged the court to reopen the case and/or reconsider its
order dismissing the case. The court denied Plaintiff’s motion in a
paperless order, clarifying its reason for dismissing the case and en-
couraging Plaintiff to review and comply with its instructions for
moving to reopen the case upon the filing of a joint scheduling re-
port.
Plaintiff subsequently filed a motion asking the district court
to order Defendants to contact him within seven days to hold a
scheduling conference. In support of his motion, Plaintiff stated
that he was available anytime to participate in a conference and
that he had sent Defendants a letter about scheduling but had not
heard back from them. The court denied Plaintiff’s motion with-
out prejudice, noting that it would be premature to order Defend-
ants to contact Plaintiff without giving them an opportunity to do
so of their own accord. The court stated in its order that it expected
the parties to use the contact information listed on the docket and
in Plaintiff’s motion to schedule a conference without a court order
to do so. Nevertheless, the court indicated that Plaintiff could refile
his motion if Defendants made no attempt to contact him within
five days.
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8 Opinion of the Court 21-14208
Plaintiff subsequently filed a motion titled an “opposition”
to the refusal by Defendants to participate in submitting a joint
scheduling report. In the motion, Plaintiff advised the court (and
provided evidence in the form of an email) that he had told Defend-
ants he was available to confer anytime and provided Defendants a
preliminary joint scheduling report for their review. According to
Plaintiff, Defendants refused to respond and confirmed in a zoom
call that they would not participate in a scheduling conference until
all the named defendants were served. Plaintiff provided evidence
purporting to show that the SEC had recently been served, and he
concluded his motion by asking the court to reopen the case and
order Defendants to participate in a scheduling conference within
seven days. While this motion was pending, Plaintiff submitted to
the court a scheduling report he unilaterally prepared, as well as
another motion to reopen the case.
In response to Plaintiff’s opposition motion, Defendants ad-
vised the district court that they had conferred with Plaintiff on No-
vember 12, 2021, to discuss case management issues and that they
had offered to conduct a scheduling conference within seven days
of the completion of service on all the named defendants. How-
ever, Defendants noted that the SEC was not present at the No-
vember 12 conference, that Plaintiff’s purported service on the SEC
did not appear to comply with Federal Rule 4(i)(2)1, and that there
1 Defendants pointed out that the affidavit of service attested that a process
server delivered copies of the summons and complaint to an SEC office, which
alone is insufficient to serve a government agency under Rule 4(i)(2).
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21-14208 Opinion of the Court 9
was no evidence that WeBull Financial or CFTC had been served.
Defendants emphasized that they were willing to hold a scheduling
conference within seven days of service on these defendants. Fi-
nally, Defendants argued that the proposed scheduling report filed
by Plaintiff was a unilateral submission that should be rejected be-
cause it did not contain the input of Defendants.
The district court denied Plaintiff’s opposition motion and
his related motions in another paperless order. The court agreed
in its order that Plaintiff’s unilaterally-prepared scheduling report
did not comply with the pretrial order or with the court’s instruc-
tions for reopening the case. And it pointed out that Plaintiff had
otherwise failed to comply with the pretrial order by not perfecting
service on all the named defendants in the case. The court ex-
plained that, in its view, Plaintiff was solely responsible for delaying
progress in the case while Defendants had made every effort to
comply with the court’s orders and the federal rules. As such, the
court denied Plaintiff’s opposition motion and other pending mo-
tions, including his motion to reopen the case.
Plaintiff subsequently moved to dismiss WeBull Financial
and CFTC from the case pursuant to Federal Rule 4(m), which gov-
erns the time limit for service. The district court denied Plaintiff’s
motion and advised him to pursue dismissal based on the proce-
dures set out in Federal Rule 41(a) pertaining to the voluntary dis-
missal of a defendant at different stages in litigation. The following
day, Plaintiff filed a notice of dismissal under Federal Rule 41(a) as
to WeBull Financial and CFTC. Thereafter, Plaintiff filed another
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10 Opinion of the Court 21-14208
motion requesting the district court to order Defendants to hold a
scheduling conference, in which motion he stated that Defendants
still were refusing to engage in a scheduling conference despite all
the named defendants in the case having been served.
In response to Plaintiff’s latest motion, Defendants argued
that the SEC still had not appeared in the case, and it explained that
Plaintiff’s attempted service on the agency did not comply with the
requirements of Federal Rule 4(i)(2). Defendants emphasized once
again that they were prepared to hold a scheduling conference
within seven days of Plaintiff’s proper service on the SEC, the last
remaining unserved defendant in the case, and they noted that
Plaintiff’s repeated filings asking a subset of defendants to partici-
pate in the scheduling process without perfecting service on all the
named defendants was improper and not in compliance with the
pretrial order. Defendants advised the court that they had told
Plaintiff he did not appear to have properly served the SEC, but
that Plaintiff refused to discuss the issue or to describe his interac-
tions—or lack thereof—with the SEC.
Plaintiff did not respond to the above arguments, and he did
not wait for the district court to enter a ruling on his latest motion.
Instead, he filed a notice of appeal challenging the court’s dismissal
of the case and its related rulings denying his motions to (1) reopen
the case, (2) order Defendants to participate in the scheduling pro-
cess, and (3) impose Rule 37 sanctions, among other things. Upon
receiving notice of Plaintiff’s appeal, the district court entered a
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21-14208 Opinion of the Court 11
paperless order stating that the appeal divested it of jurisdiction to
rule on Plaintiff’s latest pending motion.
Defendants moved to dismiss Plaintiff’s appeal for lack of ju-
risdiction, arguing that there was no final, appealable order in the
case because the district court dismissed the case without prejudice
and with the expectation it would be reopened upon the submis-
sion of a joint scheduling order that complied with the pretrial or-
der. We need not rule on the jurisdictional issue raised by the mo-
tion to dismiss because we do not reach the merits of the appeal.
As discussed below, we conclude that Plaintiff has filed his appeal
prematurely and without giving the district court the opportunity
to rule on his latest pending motion to reopen the case and/or to
order Defendants to participate in the scheduling process. Accord-
ingly, we DENY as moot the motion filed by Defendants to dismiss
the appeal for lack of jurisdiction, and we REMAND the case so the
district court can rule on these issues.
DISCUSSION
It is evident from the procedural history of this case de-
scribed above that Plaintiff has filed the appeal prematurely, and
that the case must be remanded to the district court to rule on
Plaintiff’s pending motions. After the district court closed the case
without prejudice on October 29, 2021, Plaintiff filed numerous
motions seeking different forms of essentially the same relief: an
order reopening the case and requiring Defendants to participate
in the scheduling process. In response to these motions, Defend-
ants repeatedly advised the court and explained to Plaintiff that
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12 Opinion of the Court 21-14208
several of the named defendants had not been served, and that they
would hold a scheduling conference within seven days of Plaintiff’s
perfecting service on those defendants. Plaintiff acknowledged in
his fourth (and next to last) motion related to this issue filed on
November 15, 2021, that several of the named defendants had not
been served. Because of this failure, the district court denied this
fourth motion, as it had denied all of Plaintiff’s preceding motions,
stating: “It remains the case that Plaintiff has failed to comply with
the [pretrial order] because not all of [d]efendants have been served
in this case.”
Plaintiff subsequently took some action to address the ser-
vice issue. On November 15, 2021, Plaintiff submitted an affidavit
of service as to the SEC, although there is a dispute as to whether
the affidavit shows that service was perfected in compliance with
Federal Rule 4(i)(2), which governs service on a government
agency. And on November 29, 2021, Plaintiff voluntarily dismissed
two of the remaining unserved defendants, WeBull and CFTC,
pursuant to Federal Rule 41(a). Subsequently, on November 30,
2021, Plaintiff filed his final motion asking the district court to reo-
pen the case and order Defendants to participate in the scheduling
process. In that motion, Plaintiff advised the court that he had dis-
missed defendants WeBull and CFTC from the case and that all the
remaining named defendants had been served. That information
might have resulted in a different ruling than Plaintiff had received
from the court on his prior, similar motions. However, Plaintiff
did not give the court an opportunity to rule on the matter. In-
stead, Plaintiff filed a notice of appeal two days after he submitted
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21-14208 Opinion of the Court 13
his final motion that divested the district court of jurisdiction as to
the issues raised in the motion.
As Defendants point out in their motion to dismiss this ap-
peal for lack of jurisdiction, it is questionable whether this Court
has the jurisdiction to consider the merits of this appeal. Neverthe-
less, and even assuming we have such jurisdiction, the district court
should have the opportunity in the first instance to rule on the is-
sues raised in Plaintiff’s last motion. Specifically, the district court
should have the opportunity to determine (1) whether Plaintiff has
properly served the SEC and (2) if so, whether the case should be
reopened and Defendants required to participate in the scheduling
process given the dismissal of WeBull and CFTC. Accordingly, we
remand the case to the district court for that purpose.
CONCLUSION
For the foregoing reasons, we REMAND this case to the dis-
trict court, and we DENY as moot the motion filed by Defendants
to dismiss the appeal for lack of jurisdiction.
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