590 F. App'x 927
11th Cir.
2014

David F. PETRANO, Mary Katherine Day-Petrano, Plaintiffs-Appellants, v. OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, et al., Defendants, Nationwide Mutual Fire Insurance Company, Earl Charles Law, Carl Schwait, Defendants-Appellees.

Nos. 13-11984, 13-13351, 13-13413, 13-14119

United States Court of Appeals, Eleventh Circuit.

Nov. 4, 2014.

correctly stated the law and substantially captured the idea that Mrs. Pointon‘s requested modification sought to convey. Snipes, 611 F.3d at 868.

Accordingly, we hold that the district court did not abuse its discretion by denying Mrs. Pointon‘s requested modification.

IV

Finally, Mrs. Pointon argues that the evidence presented by the government and relied on by the jury to convict her on Count I materially varied from the offense as alleged in the indictment. Mrs. Pointon concedes that, because she did not raise this claim before the district court, it is subject to plain-error review.

According to Mrs. Pointon, the criminal act alleged in Count I of the indictment was the preparation and submission of the fraudulent 2008 federal income tax return, yet the evidence presented by the government at trial centered on the acceptance, deposit, and use of the corresponding tax refund. Therefore, Mrs. Pointon contends, she was unfairly surprised at trial and her ability to defend against Count I was frustrated. We find her argument unconvincing.

Although Agent Hess testified that depositing a refund check is tantamount to filing a false claim with the IRS, the evidence presented at trial independently established that the Pointons intentionally filed a false tax return, knowing that it was false. And the jury convicted the Pointons of doing precisely that. Moreover, as to Count I, the district court instructed the jury that the Pointons had been charged with violating § 287 “by preparing and causing to be prepared and filing and causing to be filed a federal income tax return, ... with knowledge that such claims were false, fictitious, and fraudulent.” In short, there was no error, much less a plain error that affected the Pointon‘s substantial rights and the fairness of the proceedings. See United States v. Schultz, 565 F.3d 1353, 1356 (11th Cir. 2009).

V

For the reasons set forth above, we affirm.

AFFIRMED.

David Frank Petrano, Husband, Hawthorne, FL, pro se.

Mary Katherine Day-Petrano, Wife, Hawthorne, FL, pro se.

Mark D. Tinker, Banker Lopez Gassler, PA, Saint Petersburg, FL, Trevor Thomas Rhodes, Banker Lopez Gassler, PA, Tampa, FL, for Defendants-Appellees.

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 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 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 & 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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