Benjamin Vient v. Highlands News-Sun

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12140
Non-Argument Calendar
____________________
BENJAMIN VIENT,
Plaintiff-Appellant,
versus
HIGHLANDS NEWS-SUN,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:19-cv-14012-RLR
____________________
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2 Opinion of the Court 22-12140
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Benjamin Vient, a
pro se litigant, appeals following the de-
nial of six post-judgment motions for reconsideration, and the de-
nial of a motion for transparency, after the district court granted
summary judgment against him in his suit for copyright infringe-
ment. Before he could file his initial brief, the appellee, the High-
lands News-Sun, has moved for dismissal, summary affirmance in
part, and to stay the briefing schedule, as well as for sanctions.
Vient filed the present
pro se suit in 2019. In a fifth amended
complaint, he alleged that the Highlands News-Sun (“Highlands”),
a news organization, had violated various copyright statutes by
publishing, distributing, and reproducing two of his articles with-
out his permission—“Welcome on board, enjoy the ride” and “Us-
ing a tower to sell a station.” He alleged that the Highlands Journal
was connected to Highlands and Highlands had authorized his
work to be distributed and reproduced without his permission to
the Highlands Journal and a third party, Newsbank.
Highlands initially responded by moving to dismiss the case.
The district court, noting
sua sponte that Highlands’s motion also
raised concerns under Fed. R. Civ. P. 11, later dismissed the case as
a sanction thereunder, without addressing Highlands’s motion.
Vient appealed, however, and we ultimately reversed and re-
manded the case for further proceedings.
See Vient v. Highlands
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22-12140 Opinion of the Court 3
News-Sun, 829 F. App’x 407 (11th Cir. 2020). In doing so, we held
that “Vient did not take a frivolous legal position without eviden-
tiary support.”
Following discovery, Highlands moved for summary judg-
ment, arguing in part that Vient lacked a valid copyright claim over
the two articles he was suing for, and he could not establish the first
element of a copyright infringement claim. Vient opposed the mo-
tion, arguing that Highlands had not provided evidence sufficient
to support the grant of summary judgment and material facts re-
mained in dispute.
The district court granted Highlands’s motion for summary
judgment, noting that Vient had not cited to or provided evidence
that he owned the copyright for the two disputed articles. It en-
tered a judgment to this effect in October 2021. Rather than im-
mediately filing an appeal, Vient filed six motions for reconsidera-
tion.
In Vient’s first motion for reconsideration filed in November
2021, under Fed. R. Civ. P 60(a), he argued that the district court
made a mistake in overlooking that some articles in his copyright
listing were identical to the two articles at issue, just under different
names, and he had proven his copyright claim.
The district court denied Vient’s first motion for reconsider-
ation, finding that Vient used it to present evidence that could have
been presented previously.
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4 Opinion of the Court 22-12140
Vient moved for reconsideration four more times under
Rule 60(a), and Fed. R. Civ. P. 56(e)(1), and the district court denied
each motion in paperless orders. In his sixth motion for reconsid-
eration, he argued that the previous paperless order omitted the
district court’s basis for its decision and that it should reconsider his
other five motions for reconsideration and its grant of summary
judgment. Vient also filed a self-styled motion “to our Court for
Transparency,” requesting the judges and clerks to certify in writ-
ing that they had adhered to “Canon 3 standards” throughout the
case.
In an order entered on June 1, 2022, the district court denied
Vient’s last motion for reconsideration and his other pending mo-
tions. It also ordered the clerk of court to not accept any more
filings from Vient aside from a notice of appeal.
On June 28, 2022, Vient filed his notice of appeal designating
for review the October 2021 summary judgment ruling and final
judgment, and the June 2022 order denying his last motion for re-
consideration and his “Motion to our Court for Transparency.”
Before briefing, Highlands filed a motion to dismiss Vient’s
appeal for lack of jurisdiction and a motion for summary affir-
mance on anything we deemed we had jurisdiction over and to stay
the briefing. Highlands separately moved for sanctions under Fed.
R App. P. 38.
We will discuss each motion in turn.
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22-12140 Opinion of the Court 5
I.
In its motion to dismiss, Highlands argues that we lack juris-
diction over Vient’s appeal. First, Highlands argues that Vient’s
notice of appeal was untimely to challenge the district court’s Oc-
tober 2021 order entering summary judgment because it was filed
more than 30 days after the district court resolved his first motion
for reconsideration, and his subsequent post-judgment motions
could not further toll the appeal period. Second, Highlands argues
we lack jurisdiction to review the district court’s order denying
Vient’s sixth motion for reconsideration because that motion
raised the same substantive arguments as his previous motions
and, if allowed to toll, would have the effect of indefinitely tolling
the time to appeal from his first such motion, which is not allowed.
Highlands further argues that even if Vient’s subsequent motions
for reconsideration tolled the time to appeal from his first such mo-
tion, some of those motions were not filed within 28 days of the
previous one, which broke the “chain” of tolling motions. Third,
Highlands argues that we lack jurisdiction over Vient’s appeal from
the denial of his “Motion to our Court for Transparency” because
it was untimely to attack the district court’s October 2021 order en-
tering summary judgment.
Vient responds that a “chain” existed between his motions
for reconsideration for the purposes of tolling the time to appeal
because each was mailed to the district court within 28 days of the
prior motion for reconsideration, some were affected by “systemic
delays” in the mail caused by COVID-19, and these delayed filings
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6 Opinion of the Court 22-12140
were not his fault. Vient further argues that his motions for recon-
sideration do not make the same argument, as shown in an excel
spreadsheet he appended to his response. Regarding Vient’s appeal
from the denial of his “Motion to our Court for Transparency,” he
argues that we “ha[ve] jurisdiction over [his] Constitutional rights
at Court and a District Court’s discretion,” specifically noting his
“Constitutional rights of fairness at Court.”
The timely filing of a notice of appeal in a civil case is a juris-
dictional requirement and we cannot entertain an appeal that is out
of time.
See Green v. Drug Enf’t Admin., 606 F.3d 1296, 1300-02
(11th Cir. 2010). A notice of appeal in a civil case must be filed
within 30 days after the judgment or order appealed from is en-
tered. Fed. R. App. P. 4(a)(1)(A); 28 U.S.C. § 2107(a). However, if
a party files a timely motion listed in Fed. R. App. P. 4(a)(4)(A), then
the appeal period runs from the entry of the order disposing of the
last such remaining motion. Fed. R. App. P. 4(a)(4)(A). To toll the
time to appeal from an order or judgment, a motion for reconsid-
eration must be filed within 28 days after the entry of the order or
judgment. Fed. R. Civ. P. 59(e);
Advanced Bodycare Sols., LLC v.
Thoine Int’l, Inc., 615 F.3d 1352, 1359 n.15 (11th Cir. 2010) (noting
that an untimely post-judgment motion does not toll the time to
appeal). A party cannot file successive motions for reconsideration
to indefinitely toll the time to appeal from the underlying judg-
ment.
Finch v. City of Vernon, 845 F.2d 256, 259 (11th Cir. 1988).
Here, although Vient’s first motion for reconsideration
tolled the time to appeal from the district court’s October 19, 2021,
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22-12140 Opinion of the Court 7
order entering summary judgment, he was required to file his no-
tice of appeal from that order on or before January 7, 2022—30 days
after the court’s December 8, 2021, order disposing of his first mo-
tion for reconsideration.
See Fed. R. App. P. 4(a)(1), 4(a)(4). Be-
cause Vient filed his notice of appeal on June 28, 2022, it was un-
timely to challenge the summary judgment order, and thus, we
lack jurisdiction to review it.
See Green, 606 F.3d at 1300-02;
Finch,
845 F.2d at 259. For the reasons set forth in Highlands’ Motion to
Dismiss for Lack of Jurisdiction, we doubt we have jurisdiction to
review either the district court’s denial of Vient’s sixth motion for
reconsideration or its denial in that same order of Vient’s motion
for transparency. However, to the extent that Vient’s sixth motion
for reconsideration or his motion for transparency might be
deemed to raise some issue over which we might have jurisdiction,
we hold below that the district court’s judgment should be sum-
marily affirmed.
II.
Highlands also argues that even if we have the jurisdiction
to consider the denial of Vient’s sixth motion for reconsideration,
the district court did not abuse its discretion in that respect, because
it was substantively identical to the first motion, and the district
court properly denied the first motion for presenting arguments
and evidence that could have been presented before judgment was
entered. It contends that that the denial of the motion for trans-
parency was proper because there is no rule or statute authorizing
litigants to request or require that a district judge issue a written
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8 Opinion of the Court 22-12140
certification that the judge is complying with the code of conduct
for United States judges, nor did he allege any instances of judicial
misconduct in the motion.
Vient, who is still
pro se, responds that Highlands is not cor-
rect as a matter of law, and he has a right to brief the merits of his
appeal. He asserts that Rule 56(e)(1) allows a district court the dis-
cretion to allow the opportunity to properly support or address a
fact, and the district court’s refusal to grant that motion was an
abuse of discretion. He does not explicitly address the motion for
transparency in his summary affirmance arguments; however, un-
der his jurisdictional argument, he argues that there should be au-
thorization for him to move for transparency to improve account-
ability in government.1
Summary disposition is appropriate, in part, where “the po-
sition of one of the parties is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the case,
or where, as is more frequently the case, the appeal is frivolous.”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969).
We review the denial of a Fed. R. Civ. P. 60(b) motion for
abuse of discretion.
Aldana v. Del Monte Fresh Produce N.A., Inc.,
741 F.3d 1349, 1355 (11th Cir. 2014). And we may “affirm the
1 In light of Vient’s response to the motion for summary affirmance,
we conclude that we are in a position to rule on that motion even in the ab-
sence of an initial brief from Vient.
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22-12140 Opinion of the Court 9
district court's ruling on any basis the record supports . . . regardless
of the grounds addressed, adopted or rejected by the district court.”
Fla. Wildlife Fed’n Inc. v. U.S. Army Corps of Eng’rs, 859 F.3d 1306,
1316 (11th Cir. 2017) (citations and quotations omitted). We re-
view the district court’s broad discretion in the management of a
trial for abuse of discretion.
United States v. Hiliard, 752 F.2d 578,
582 (11th Cir. 1985).
The scope of appellate review for reconsideration is fairly
circumscribed and deferential because it “does not bring up the un-
derlying judgment for review.”
See Cavaliere v. Allstate Ins. Co.,
996 F.2d 1111, 1115 (11th Cir. 1993) (stating that the Court would
consider only the denial of relief as to the Rule 60(b) motion itself,
not the efficacy of the underlying judgment, and that a Rule 60(b)
motion cannot be used as a substitute for proper and timely appeal
of the district court's judgment).
Pro se pleadings are generally held to a less stringent stand-
ard than pleadings drafted by attorneys and will be liberally con-
strued.
Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir.
2014).
Rule 60(a) allows for corrections based on a clerical mistake
or a mistake arising from an oversight or omission. Fed. R. Civ. P.
60(a). Rule 60(b) allows a court to relieve a party from final judg-
ment for mistake, newly discovered evidence that could not have
been discovered in time to move for a new trial, fraud, void judg-
ment, a satisfied judgment, or any other reason that merits relief.
Fed. R. Civ. P. 60(b)(1)–(6). A motion for reconsideration cannot
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10 Opinion of the Court 22-12140
be used to relitigate old matters, raise arguments, or present evi-
dence that could have been raised prior to the entry of judgment.
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir.
2009).
Rule 56(e)(1) states that if, in a summary judgment proceed-
ing, a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact, the district court
may give an opportunity to properly support or address the fact.
Fed. R. Civ. P. 56(e)(1).
Under our Local Rules, the filing of a motion for summary
affirmance “shall postpone the due date for the filing of any remain-
ing brief until the court rules on such motion.”
See 11th Cir. R. 31-
1(c).
Here, we conclude that the district court did not abuse its
discretion when it denied Vient’s sixth motion for reconsideration
and his motion for transparency. Although he claimed his sixth
motion for reconsideration was brought under Rule 60(a), Vient
appeared to be asking the district court to reverse its decision under
Rule 60(b), rather than correct a clerical mistake under Rule 60(a).
Campbell, 760 F.3d at 1168. Vient appears to have tried to use his
motion for reconsideration to raise evidence that he already had
available to him and add to the record through Rule 56(e)(1). A
Rule 60(b) motion cannot be used to raise arguments that could
have been raised before and also cannot be used to relitigate old
arguments, so the district court did not abuse its discretion when it
denied his sixth motion that sought to introduce previously
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22-12140 Opinion of the Court 11
available evidence and relitigate his previous five motions.
Wil-
chombe, 555 F.3d at 957.
As for his motion to compel transparency, the district court
did not abuse its discretion in denying it. The district court has
broad discretion in managing how a case progresses and a review-
ing court will not interfere absent a clear showing of abuse.
Hiliard,
752 F.2d at 582. Vient does not cite, and research does not reveal,
any published case, rule, or statute giving a party a right to compel
a district court to make a certification or affidavit stating it followed
judicial canons. Thus there was no abuse of that broad discretion.
In sum, because Highlands’s position is clearly correct as a
matter of law, we grant its motion for summary affirmance and
affirm the decision of the district court to the extent we have juris-
diction.
Groendyke Transp., Inc., 406 F.2d at 1162. We also deny
as moot its motion to stay the briefing schedule because our local
rules already provide that relief.
III.
Highlands has also moved for sanctions, arguing that Vient’s
appeal is frivolous due to a lack of jurisdiction over the case and
that the sixth motion for reconsideration and the motion for trans-
parency lack legal precedent.
Vient responds that there are valid grounds for appeal, as his
motions for reconsideration were timely, and his motion for trans-
parency was not frivolous.
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12 Opinion of the Court 22-12140
We have imposed Rule 38 sanctions against appellants who
raise clearly frivolous claims in the face of established law and clear
facts.
Farese v. Scherer, 342 F.3d 1223, 1232 (11th Cir. 2003). Gen-
erally, though, we have declined requests to impose sanctions un-
der Rule 38 on
pro se litigants.
See Woods v. I.R.S., 3 F.3d 403,
404 (11th Cir. 1993);
Hyslep v. United States, 765 F.2d 1083,
1084–85 (11th Cir. 1985). Nevertheless, we have made exceptions
and imposed sanctions against
pro se appellants who were attor-
neys themselves or who were explicitly warned by the district
court that their claims were frivolous.
See, e.g.,
United States v.
Morse, 532 F.3d 1130, 1132–33 (11th Cir. 2008) (imposing sanctions
on
pro se appellant who had been warned in the district court that
his tax claims were “utterly without merit”).
Here, we decline to impose sanctions on Vient. To date, no
court has warned Vient that his underlying claim, or an appeal re-
lating thereto, was frivolous.
See Morse, 532 F.3d at 1130, 1132–
33. Moreover, we have already vacated imposition of one sanc-
tion—the initial dismissal of his suit under Rule 11—and held that
Vient had not taken “a frivolous legal position without evidentiary
support” at that point. Therefore, we follow our general practice
of not sanctioning
pro se litigants and deny Highlands’s motion for
sanctions.
Woods, 3 F.3d at 404;
Hyslep, 765 F.2d at 1084–85.
IV.
In sum, in Part I, we GRANT, in part at least, Highland’s
motion to dismiss the case for lack of jurisdiction. To the extent
that Vient’s sixth motion for reconsideration or his motion for
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22-12140 Opinion of the Court 13
transparency might be deemed to raise some issue over which we
might have jurisdiction, we hold in Part II that the district court’s
judgment should be summarily AFFIRMED. We DENY as moot
Highlands’s motion to stay the briefing schedule. We DENY High-
lands’s motion for sanctions. All other pending motions are
DENIED AS MOOT.
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