Elena Dvoinik, et al v. Peter Philipp, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12240
Non-Argument Calendar
____________________
ELENA DVOINIK,
Master of Law,
BORIS ZAVADOVSKY,
M.D.,
Plaintiffs-Appellants,
versus
PETER PHILIPP,
Doctor of Law,
MARIO RABL,
Precinct Inspector,
SUSANNE HOFLINGER,
District Inspector,
GUNDA EBHART,
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 1 of 14

-- 1 of 14 --

2 Opinion of the Court 23-12240
Doctor of Law,
THOMAS HOFLINGER,
Defendants-Appellees,
CLEMENS DIETACHMAIR, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:22-cv-01127-TPB-CPT
____________________
Before B RASHER , ANDERSON, and H ULL , Circuit Judges.
PER CURIAM:
Elena Dvoinik and Boris Zavadovsky (collectively,
“Plaintiffs”), proceeding pro se, appeal the dismissal of their civil suit
in which they complained of actions by the Austrian Defendants
that occurred within Austria. The district court dismissed with
prejudice their second amended complaint (the “complaint”) based
on application of the “act of state” doctrine. On appeal, Plaintiffs
primarily argue that the doctrine is inapplicable because the
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 2 of 14

-- 2 of 14 --

23-12240 Opinion of the Court 3
Defendants were not on duty or acting as state agents during the
alleged actions.
Because Plaintiffs’ complaint is based on public acts
committed by Austrian officials within Austrian territory, we
affirm the district court’s dismissal with prejudice.
I. COMPLAINT’S ALLEGATIONS
We first review the complaint’s allegations.
In their complaint, Plaintiffs brought suit against (1) Mario
Rabl and Susanne Hoflinger, Austrian police officers, (2) Thomas
Hoflinger, an Austrian police department IT employee, (3) Gunda
Ebhart, an Austrian prosecutor, and (4) Peter Philipp, a “prominent
criminal attorney” in Austria (collectively, “Defendants”).
Plaintiffs contend that Defendants engaged in a scheme that began
with and arose out of an allegedly illegal search of Plaintiffs’ house
in Austria pursuant to a warrant issued by an Austrian court.
Plaintiffs allege Defendants acted illegally on information a
witness provided to police, obtained an illegal search warrant for
Plaintiffs’ house in Austria, conducted a search and illegally seized
property belonging to Plaintiffs, conducted various investigations
of Plaintiffs, filed official reports regarding Plaintiffs, threatened
Plaintiffs with prosecution, and charged them with crimes.
Plaintiffs presented their claims regarding the allegedly illegal
search and seizure to the Austrian courts, but the Austrian courts
rejected the claims.
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 3 of 14

-- 3 of 14 --

4 Opinion of the Court 23-12240
A. Search and Seizure
Specifically, Plaintiffs’ complaint alleges that on June 15,
2021, while Plaintiffs were in Florida, “A. Chuprikov” sent Austrian
authorities a “deliberately false denunciation” by email, indicating
that Plaintiffs were producing forged documents “for obtaining of
foreign citizenships” in their house in Gloggnitz, Austria with the
intent to sell the forged documents.
Based on Chuprikov’s information, the Austrian authorities
initiated a criminal investigation and issued a search warrant for
Plaintiffs’ house on June 30, 2021. The search warrant authorized
the Austrian authorities to seize exclusively “[e]quipment for
professional forgery of documents, certificates and other evidence
(special apparatus; embossed seals and stamps from government
authorities; UV transillumination device; etc.), forged documents
as well as other evidence related to the existent suspicion.” (Font
altered.)
Plaintiffs’ complaint alleges that on July 12, 2021,
Defendants Susanne and Thomas Hoflinger (Austrian police
department employees) presented the search warrant to Plaintiffs’
neighbors, the Rottensteiners, and obtained a key to Plaintiffs’
house from the Rottensteiners. Plaintiffs contend that the
Hoflingers entered the house and conducted a search. According
to Plaintiffs, Thomas Hoflinger used passwords obtained from
Plaintiffs’ notebooks to (1) log into Plaintiffs’ computers, (2) hack
Plaintiffs’ emails, and (3) obtain electronically stored information
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 4 of 14

-- 4 of 14 --

23-12240 Opinion of the Court 5
containing Plaintiffs’ personal and business data and
correspondence.
Then, Austrian police officer Rabl allegedly arrived on the
scene. Plaintiffs allege that police officers Rabl and Susanne
Hoflinger, along with police employee Thomas Hoflinger,
“inspected the [P]laintiffs’ personal computers, the [P]laintiffs’
ESI[,] and chaotically downloaded it.” Plaintiffs allege that police
officer Rabl seized: (1) two computers; (2) personal documents,
including U.S. classified information, birth certificates, and
education certificates; (3) valuable property, including “jewelry and
antiques worth more than $1 million”; and (4) tax declarations,
receipts, and proof of authorized deductions.
B. Continued RICO Enterprise1
The day after the search and seizure, police officer Rabl
called Plaintiffs and informed them of the search. Police officer
Rabl also recommended that Plaintiffs retain Defendant Philipp as
their criminal attorney. On July 14, 2021, Plaintiffs emailed police
officer Rabl regarding case testimony and a criminal complaint
against Chuprikov. That same day, Plaintiffs also called attorney
Philipp.
1 Plaintiffs explicitly state that their claims are limited to RICO acts
“committed between 7/12/2021 and 11/7/2021.” Thus, we do not discuss
facts recounted in the complaint that allegedly occurred after November 7,
2021.
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 5 of 14

-- 5 of 14 --

6 Opinion of the Court 23-12240
Pursuant to her conversation with Defendant Philipp,
Plaintiff Dvoinik sent Philipp an email summarizing what had
happened and listing the seized property. Plaintiffs also requested
that attorney Philipp “apply by prosecutor’s office an initiation of
criminal investigation against Chuprikov” for defamation and
extortion. Defendant Philipp agreed to represent Plaintiffs, “to
clarify the case matter[,] and to speak to the prosecutor
investigating the Plaintiffs’ case as soon as possible.”
As part of the scheme, Plaintiffs allege that on August 11,
2021, Defendant Philipp “tried to extort a bribe from the Plaintiffs
in favor of the Defendant Gunda Ebhart [the prosecutor] for the
return of Plaintiffs[’] property and the termination of the criminal
investigation” against Plaintiffs. Plaintiffs refused to pay the bribe.
Plaintiffs sent to the prosecutor’s office, by mail, a “criminal
Complaint against Chuprikov” and “a Complaint” against the
Austrian police based on the police’s July 12, 2021 search.
In November 2021, Plaintiffs also filed “a complaint” with
the Austrian Data Protection Committee, complaining of the
Austrian police’s disclosure of Plaintiffs’ personal data in Russia and
abroad. In addition, “Plaintiffs filed multiple complaints with
Austrian authorities.”2
2 Plaintiffs’ appellate briefs contain a number of factual allegations that are not
contained in the operative complaint, and thus we do not recite them.
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 6 of 14

-- 6 of 14 --

23-12240 Opinion of the Court 7
II. PROCEDURAL HISTORY
On May 16, 2022, Plaintiffs filed their initial complaint
against Defendants, among others. On August 29, 2022, Defendant
Philipp moved to dismiss. Then, on October 3, 2022, Plaintiffs filed
an amended complaint. After Plaintiffs filed their first amended
complaint, the district court denied Defendant Philipp’s motion to
dismiss as moot.
On October 28, 2022, Defendants Ebhart, Susanne
Hoflinger, Thomas Hoflinger, and Rabl filed a motion to dismiss
the first amended complaint based on, inter alia, the act of state
doctrine. Additionally, Defendant Philipp filed a number of letters
with the district court, all of which were in German.
On March 15, 2023, the district court granted Defendants
Ebhart, Susanne Hoflinger, Thomas Hoflinger, and Rabl’s motion
to dismiss and dismissed the first amended complaint without
prejudice as to all Defendants. In its order, the district court also
noted that Defendant Philipp raised the act of state doctrine in his
motion to dismiss the initial complaint but did not move to dismiss
the first amended complaint.
The district court further explained that the act of state
doctrine may be raised sua sponte and that its application turns on
the nature of the claims asserted rather than the status of a
particular defendant. Therefore, the district court concluded as to
all Defendants that the act of state doctrine “appears to foreclose
Plaintiffs’ claims by their very nature,” but “in an abundance of
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 7 of 14

-- 7 of 14 --

8 Opinion of the Court 23-12240
caution,” the court granted Plaintiffs leave to file a second amended
complaint.
On April 10, 2023, Plaintiffs filed their second amended
complaint, which we refer to as the complaint now at issue. On
April 24, 2023, Defendants Ebhart, Susanne Hoflinger, Thomas
Hoflinger, and Rabl filed a motion to dismiss again based on, inter
alia, the act of state doctrine.
On May 9, 2023, Plaintiffs filed a motion for a clerk’s default
against Defendant Philipp. The district court received
correspondence from Defendant Philipp in German dated April 18,
2023 and May 10, 2023 and entered the correspondence on the
docket on May 17, 2023.
On June 30, 2023, the district court dismissed Plaintiffs’
complaint with prejudice as to all Defendants. The district court
incorporated by reference its first, longer dismissal order (as to the
first amended complaint) that discussed why the act of state
doctrine applied here. The district court concluded that the current
complaint “essentially tells the same story and alleges the same
scheme of extortion and theft involving the Austrian police and
prosecutors” and that Plaintiffs’ “conclusory assertions” that
“Defendants’ actions took place while they were off duty and were
‘not related to their official duties,’ and that the police and
prosecutor’s offices were used by Defendants as ‘cover’ for their
illegal activities” were “belied by the inherent nature of the alleged
actions themselves as exercises of sovereign power.” The district
court also terminated any pending motions and deadlines.
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 8 of 14

-- 8 of 14 --

23-12240 Opinion of the Court 9
Plaintiffs also filed four other federal lawsuits in the United
States related to the incidents alleged in this case. See 8:22-cv-
01700-CEH-STF (M.D. Fla.); 1:22-cv-24226-JEM (S.D. Fla.); 8:23-cv-
00623-KKM-CPT (M.D. Fla.); 1:23-cv-04216-LTS (S.D.N.Y.).
Relevant to this appeal, Plaintiffs brought suit against the Republic
of Austria “for the activities of [the alleged] RICO [e]nterprise.” See
8:22-cv-01700-CEH-STF.
III. STANDARD OF REVIEW
We review de novo the applicability of the act of state
doctrine. Comparelli v. Republica Bolivariana de Venez., 891 F.3d
1311, 1318 (11th Cir. 2018).
We construe a pro se litigant’s pleadings liberally. Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). However, issues
raised for the first time in a reply brief are considered abandoned.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
IV. DISCUSSION
A. Act of State Doctrine
The act of state doctrine is a judicially created rule that
“precludes the courts of this country from inquiring into the
validity of the public acts a recognized foreign sovereign power
committed within its own territory.” Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 401 (1964); see also Mezerhane v. Republica
Bolivariana de Venez., 785 F.3d 545, 551-52 (11th Cir. 2015). The
doctrine stands on the principle that “conduct of one independent
government cannot be successfully questioned in the courts of
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 9 of 14

-- 9 of 14 --

10 Opinion of the Court 23-12240
another,” because “permit[ting] the validity of the acts of one
sovereign state to be reexamined and perhaps condemned by the
courts of another would very certainly imperil the amicable
relations between governments and vex the peace of nations.”
Banco Nacional de Cuba, 376 U.S. at 417-18 (citations and internal
quotations omitted).
The act of state doctrine applies where a court is required to
declare invalid the official act of a foreign sovereign, done within
its own territory. W.S. Kirkpatrick & Co. v. Env’t. Tectonics Corp.,
Int’l, 493 U.S. 400, 405-06 (1990); Mezerhane, 785 F.3d at 552. This
doctrine is premised on (1) “international comity,” (2) “respect for
the sovereignty of foreign nations on their own territory,” and (3)
domestic separation of powers concerns—the “strong sense of the
Judicial Branch that its engagement in the task of passing on the
validity of foreign acts of state may hinder the conduct of foreign
affairs.” See W.S. Kirkpatrick, 493 U.S. at 404, 408 (quotation marks
omitted).
Here, we conclude that the district court did not err in
dismissing Plaintiffs’ complaint with prejudice under the act of
state doctrine. Plaintiffs’ complaint almost exclusively concerns
events that they alleged happened in Austria and that were
performed in an alleged scheme by Austrian law enforcement, the
Austrian prosecutor, defense counsel, and the Austrian judiciary.
The only link this case has to the United States is that the named
Plaintiffs happen to reside in Florida. Yet Plaintiffs seek to have
United States courts determine the validity of Austrian officials’
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 10 of 14

-- 10 of 14 --

23-12240 Opinion of the Court 11
actions in Austria, which the act of state doctrine prohibits. See
Banco Nacional de Cuba, 376 U.S. at 401; Mezerhane, 785 F.3d at 552.
This type of scrutiny over Austrian officials’ actions could “imperil
the amicable relations between [the] governments.” See Banco
Nacional de Cuba, 376 U.S. at 417-18.
Plaintiffs argue that the act of state doctrine does not bar
their case because Defendants are either not officials or were not
on duty. The crux of this argument is that because the search of
Plaintiffs’ home in Austria was performed without a valid search
warrant and exceeded the scope of the search warrant, Defendants
were not “on duty.” Plaintiffs also contend that their property in
Austria was “seized without authority” because the scope of the
search warrant did not extend to items unrelated to forgery and did
not provide for the search of Plaintiffs’ computers.
Nonetheless, the act of state doctrine still applies because the
district court and our Court are necessarily being asked to declare
invalid the official acts of Austria, including the issuance of search
warrants and criminal charges. See Banco Nacional de Cuba, 376 U.S.
at 401; W.S. Kirkpatrick, 493 U.S. at 405-06; Mezerhane, 785 F.3d at
552. The alleged acts of Defendants, whether valid or not, were
ostensibly exercises of Austrian police power, were carried out
entirely within Austria, and involved a search and seizure affirmed
as legal by the Austrian courts.
At bottom, the factual predicate for Plaintiffs’ claim is that
an official act of a foreign sovereign was invalid. See W.S.
Kirkpatrick, 493 U.S. at 405. As such, Plaintiffs’ suit is barred by the
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 11 of 14

-- 11 of 14 --

12 Opinion of the Court 23-12240
act of state doctrine. See, e.g., Nocula v. UGS Corp., 520 F.3d 719, 728
(7th Cir. 2008) (holding that a lawsuit against a corporation for
losing computers which allegedly were wrongfully seized by the
Polish authorities in connection with criminal prosecution and
“mysteriously disappeared” was barred by the act of state doctrine
because it necessarily called for “an inquiry into the acts of a foreign
sovereign” (quotation marks omitted)); Hourani v. Mirtchev, 796
F.3d 1, 15 (D.C. Cir. 2015) (holding that a defamation lawsuit was
barred because it could not be decided “without a court having to
inquire into the legal validity or tortiousness” of statements on the
Kazakh embassy website); see also W.S. Kirkpatrick, 493 U.S. at 405
(stating that treating a sovereign action as “tortious would have
required denying [it] legal effect”); Underhill v. Hernandez, 168 U.S.
250, 251, 253-54 (1897) (holding that the alleged acts of the
defendant military commander in detaining the plaintiff “were the
acts of the government of Venezuela, and as such are not properly
the subject of adjudication in the courts of another government”
(quotation marks omitted)).
B. Second Hickenlooper Amendment
In their reply brief, Plaintiffs also cite the Second
Hickenlooper Amendment.3 Because Plaintiffs raised their
3 Congress passed the Second Hickenlooper Amendment in response to the
Supreme Court’s decision in Banco Nacional de Cuba v. Sabbatino. See Fogade v.
ENB Revocable Tr., 263 F.3d 1274, 1293-94 (11th Cir. 2001) (concluding the
Second Hickenlooper Amendment “overrule[d], at least with respect to
confiscations of property, the Sabbatino decision to the extent that it held that
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 12 of 14

-- 12 of 14 --

23-12240 Opinion of the Court 13
Hickenlooper argument for the first time in their reply brief, we
are not required to consider whether the Second Hickenlooper
Amendment applies here. See Timson, 518 F.3d at 874.
And in any event, Defendants Ebhart, Susanne Hoflinger,
Thomas Hoflinger, and Rabl moved to strike the Hickenlooper
argument in Plaintiffs’ appellate reply brief. Then Plaintiffs
responded with their own motion to strike the Defendants’ motion
and stated that Plaintiffs are not asking this Court to apply the
Second Hickenlooper Amendment. Specifically, Plaintiffs’ motion
to strike stated they “did not ask the Court to apply Second
Hickenlooper Amendment” and referenced the Second
Hickenlooper Amendment solely “with the purpose to explain
law.” Thus, we need not consider the Second Hickenlooper
Amendment for this reason too.4
C. Plaintiffs’ Motion for Clerk’s Default Against Philipp
Finally, in their appellate brief, Plaintiffs assert that they were
entitled to have the clerk enter default judgment against Defendant
Philipp under Federal Rule of Civil Procedure 55(b)(1). Rule
55(b)(1) requires the clerk to enter judgment against a defendant
who has been defaulted for not appearing “[i]f the plaintiff’s claim
the act of state doctrine would apply without regard to whether a foreign
state’s actions violated international law”).
4 In light of the above, the Court denies (1) Defendants-Appellees’ motion to
strike portions of Plaintiffs-Appellants’ reply brief and (2) Plaintiffs-Appellants’
motion to strike the Appellees’ motion and to impose sanctions on their
attorney.
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 13 of 14

-- 13 of 14 --

14 Opinion of the Court 23-12240
is for a sum certain or a sum that can be made certain by
computation.” FED. R. C IV. P. 55(b)(1). For entry of default
judgment by the clerk, the plaintiff must submit “an affidavit
showing the amount due.” Id.
Plaintiffs’ argument about a default judgment fails for two
reasons. First, Plaintiffs’ appellate brief contains only conclusory
references to a default judgment in their “Statement of the Issues”
and “Statement of the Case” that do not show why Rule 55(b)(1)
applies here. So, Plaintiffs have abandoned any argument regarding
default against Defendant Philipp. See Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2014) (holding that a party
abandons an issue by making only passing references to it in the
statement of the case, the summary of the argument, or the
argument sections of a brief ).
Second, even assuming arguendo that Plaintiffs properly
presented their default judgment argument, they have made no
showing that their claim is “for a sum certain or a sum that can be
made certain by computation” and they did not submit “an affidavit
showing the amount due” in the district court. See F ED. R. CIV. P.
55(b)(1). Accordingly, Plaintiffs have failed to show any default
judgment was proper.
V. CONCLUSION
For the forgoing reasons, we affirm the district court’s
dismissal of Plaintiffs’ second amended complaint with prejudice as
to all Defendants.
AFFIRMED.
USCA11 Case: 23-12240 Document: 37-1 Date Filed: 01/09/2024 Page: 14 of 14

-- 14 of 14 --