John D. DUPREE, Petitioner-Appellant, v. WARDEN, Attorney General, State of Alabama, Respondents-Appellees.
No. 11-12888.
United States Court of Appeals, Eleventh Circuit.
May 7, 2013.
715 F.3d 1295
The factors a district court must consider before granting a forum non conveniens dismissal are whether an adequate alternative forum is available, whether the public and private factors weigh in favor of dismissal, and whether the plaintiffs can reinstate their suit in the alternative forum without undue inconveniencе or prejudice. Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir.2001). Though the Baptes consistently argued that Martinique was an unavailable forum in each of the French courts they encountered—the Regional Court of Fort-de-France, the Fort-de-France Court of Appeals, and the Court of Cassation—they failed to raise that argument to the Southern District of Florida in 2007 during the pendency of Defendants’ motion to dismiss. Indeed, in its FNC order, the district court noted that the Baptes did not dispute the adequacy of Martinique as an alternate forum. [R. 184 at 7.] Moreover, in affirming the FNC order, this court noted that the Baptes “d[id] not challenge the district court‘s determination that Martinique is an adequate alternative forum or that they [could] reinstate their suit in Martinique without undue prejudice or inconvenience.” Pierre-Louis, 584 F.3d at 1059. The appropriate time for a plaintiff to argue the unavailability of an alternate forum is in their brief opposing a defendant‘s motion to dismiss based on forum non conveniens. The Baptes failed to do that in the district court. They have also not offered any explanation for their failure to argue unavailability at the appropriate time in the Southern District of Florida instead of waiting until they presented their claims to the courts in Martinique. Thus, the Baptes’ motion to vacate appears to be nothing more than an effort to raise arguments in opposition to the forum non conveniens dismissal which they failed to raise initially in their opposition to Defendants’ motion to dismiss. Such circumstances are not “sufficiently extraordinary” to warrant
IV.
The Baptes’ success in arguing to the Court of Cassation that a plaintiff‘s initial choice of forum under the Montreal Convention precludes other available forums from exercising jurisdiction over the same claims does not constitute “sufficiently extraordinary” circumstances to warrant
AFFIRMED.
Michael G. Dean, John Cowles Neiman, Jr., Luther J. Strange, III, Attorney General‘s Office, Montgomery, AL, for Respondents-Appellees.
Before WILSON and COX, Circuit Judges, and BOWEN,* District Judge.
COX, Circuit Judge:
The issue on appeal is whether the district court violated the rule laid down in Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc). In Clisby, this court instructed district courts to resolve all claims for relief presented in a
I. FACTS & PROCEDURAL HISTORY
In October 2004, John Dupree, represented by Patricia Granger, pleaded guilty to several state law drug-related offenses in an Alabama state court. Before sentencing, Dupree hired a new attorney, Dani Bone. Bone moved to set aside Dupree‘s guilty plea. The trial court denied the motion.
At sentencing, Dupree, represented by yet another attorney, Roderick Walls, again moved to set aside the guilty plea. The court denied the motion and sentenced Dupree to thirty years’ imprisonment. Dupree appealed to the Alabama Court of Criminal Appeals. The court affirmed his conviction and denied his application for rehearing. Dupree then petitioned the Supreme Court of Alabama for a writ of certiorari, which the court denied.
In December 2006, Dupree filed a petition for post-conviction relief under
In May 2009, Dupree, proceeding pro se, filed a
The Respondents answered Dupree‘s petition. (Dkt. 8.) The answer thoroughly addresses Dupree‘s argument that Granger had rendered ineffective assistance of counsel. (Id. at 18-21.) But it only addresses Bone in a footnote, saying, “To the extent that [Dupree‘s allegations about Bone] could be construed as an ineffective assistance of counsel claim, Dupree is not entitled to relief ....” (Id. at 21 n. 8.) Dupree replied to the answer but failed to mention Bone. (Dkt. 10.)
The district court referred the petition to a magistrate judge, and the magistrate judge recommended that the district court dismiss the petition. (Dkt. 14.) In the report and recommendation, the magistrate judge concludes that Dupree‘s claim that Granger had provided ineffective assistance of counsel is meritless. (Id. at 13-18.) The magistrate judge did not address Dupree‘s allegations about Bone‘s representation.
At the end of the report and reсommendation, the magistrate judge warns the parties of the consequences of failing to object to the report and recommendation. (Id. at 18-19.) Specifically, the magistrate judge cautions:
Failure to file written objections to the proposed findings and recommendations of the magistrate judge‘s report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. [Unit B] 1982). A copy of the objections must be served upon all other partiеs to the action.
(Id.)
Dupree filed objections to the report and recommendation. (Dkt. 15.) But his objections fail to mention the magistrate judge‘s failure to address his ineffective-assistance-of-counsel claim based on Bone‘s performance.
The district court adopted the report and recommendation in its entirety, (Dkt. 16,) and dismissed Dupree‘s petition, (Dkt. 17). Dupree then sought a certificate of appealability, which this court granted. (Dkt. 23.)
II. ISSUE ON APPEAL & STANDARD OF REVIEW
We granted a certificate of appealability on the issue of “[w]hether the district court violated Clisby by failing to address the allegations in Dupree‘s memorandum, attached to his § 2254 petition, regarding Bone‘s representation.” (Dkt. 23.) We review de novo issues of law presented in a certificate of appealability. Medberry v. Crosby, 351 F.3d 1049, 1053 (11th Cir. 2003).
III. DISCUSSION
In Clisby, this court, in the exercise of our supervisory authority, directed district courts to resolve all claims for relief raised in a
The Respondents argue that Dupree failed to present the claim in the district court, and the court‘s failure to resolve the claim therefore did not violate the rule established in Clisby.
A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it. See Smith v. Sec‘y, Dep‘t of Corr., 572 F.3d 1327, 1352 (11th Cir.2009). We liberally construe petitions filed pro se. Green v. Nelson, 595 F.3d 1245, 1254 n. 4 (11th Cir.2010).
In Rhode v. United States, 583 F.3d 1289, 1291-92 (11th Cir.2009), we concluded that a pro se litigant had presented his ineffective-assistance-of-counsel claim before the district court for Clisby purposes when, in his motion to vacate, he “stаtes that his ineffective assistance of counsel claims are described in his attached memorandum,” and in his attached memorandum, he sets out the facts supporting his claim.
In this case, Dupree filed his habeas petition pro se. Like the litigant in Rhode, Dupree refers to his attached memorandum when asked to describe the ineffective-assistance-of-counsel claim. (Dkt. 1 at 5.) In the memorandum, Dupree writes, “Bone also failed to go into detail as to exactly what it was that Dupree failed to understand about the plea agreement. Instead he allowed Dupree, in his inexperience, and under a state of duress to testify on his own behalf.” (Id. at 9-10.) Construing his petition liberally, Dupree presentеd his ineffective-assistance-of-counsel claim about Bone‘s performance to the district court. Because the district court failed to resolve the claim, the court violated the rule set out in Clisby.
We do not address whether Dupree‘s claim is meritorious. Under Clisby, our role is to vacate the judgment without prejudice and remand the case to the district court for consideration of the unaddressed claim. Moreover, addressing the merits of Dupree‘s claim exceeds the scope of our review, which is limited to the Clisby issue specified in the certificate of appealability. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998). We express no opinion on whether this claim states a claim upon which relief can be grаnted.
Accordingly, we vacate the judgment without prejudice and remand the case to the district court to consider Dupree‘s ineffective assistance claim concerning Bone.
IV. RECOMMENDATION
Although Dupree did not object to the magistrate judge‘s failure to address a legal issue (Dupree‘s claim that Bone provided ineffective assistance of counsel) in the report and recommendation, we review de novo the legal question of whether the district court violated the rule announced
A majority of our sister circuits attach consequences to the failure of a party to object to a magistrate judge‘s resolution of legal issues as well as factual issues (e.g., by limiting the scope of appellate review or prohibiting review altogether).
Having decided this case, we urge the court to join the majority of our sister сircuits and adopt a rule that attaches consequences to the failure to object to either factual findings or legal conclusions in a magistrate judge‘s report and recommendation in civil cases. In this section of the opinion, we discuss (A) our current rule on a party‘s failure to object to a factual finding or legal conclusion in a magistrate judge‘s report and recommendation, (B) our sister circuits’ rules, and (C) why we propose adopting a new rule.
A. Our Rule
As we discussed above, under our current rule, a party‘s failure to object to factual findings and legal conclusions in a magistrate judge‘s report and recоmmendation in civil cases has limited consequences. Despite a party‘s failure to object, we seem to consistently review unobjected-to factual findings for plain error, and we review the unobjected-to legal conclusions de novo.
Our current rule was adopted in Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982) (en banc), overruled by Douglass v. United Serv. Auto. Ass‘n, 79 F.3d 1415 (5th Cir.1996) (en banc), superseded by statute, Federal Magistrates Act, Pub.L. No. 111-16, 123 Stat. 1608 (codified as amended at
Accordingly, we hold that the failure of a pаrty to file written objections to proposed findings and recommendations in a magistrate‘s report, filed pursuant to
Title 28 U.S.C. [§] 636(b)(1) , shall bar the party from a de novo determination by the district judge of an issue covered in the report and shall bar the party from attacking on appeal factual findings accepted or adopted by the district court except upon grounds of plain error or manifest injustice. Provided, however, we also hold that no limitation of the right to appeal ... and no limitation of the scope of appeal ... shall result un-
less the magistrate informs the parties that objections must be filed within ten days after service of a copy of thе magistrate‘s report is made upon them.
Id. at 410; accord Hardin v. Wainwright, 678 F.2d 589, 591 (5th Cir. Unit B 1982) (“The failure to object no longer waives the right to appeal but simply limits the scope of appellate review of factual findings to a plain error review; no limitation of the review of legal conclusions results.“).
Under the rule established in Nettles, this court reviews unobjected-to factual findings for “manifest injustice” or “plain error.” See, e.g., Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.1993); United States v. Roberts, 858 F.2d 698, 701 (11th Cir.1988); LoConte v. Dugger, 847 F.2d 745, 749-50 (11th Cir.1988); Hardin v. Black, 845 F.2d 953, 960 (11th Cir.1988); United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983); United States v. Warren, 687 F.2d 347, 348 (11th Cir.1982).2 “This Court equates manifest injustice with review for plain error.” United States v. McClendon, 195 F.3d 598, 603 (11th Cir.1999). Under plain error review, we can correct an error only when (1) an error has occurred, (2) the error was plain, (3) the error affected substantial rights, and (4) the error seriously affects the fairness, integrity or publiс reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732 (1993); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir.1999). The Nettles rule is contrary to our typical standard of review for factual findings. Normally, we review the district court‘s factual findings for clear error.
We note, however, that the Fifth Circuit has overruled Nettles. Douglass, 79 F.3d 1415. In Douglass, the Fifth Circuit, sitting en banc, concluded that the rule announced in Nettles resulted in “a great waste of judicial resources” and “inefficiency and added expense.” Id. at 1419. The court also recognized that ”Nettles offered no explanation for changing [our former] appellate waiver rule ... to a forfeiture rule aрplicable only to factual findings.” Id. at 1422. Reasoning that there is no basis for creating an exception for unobjected-to proposed legal conclusions, id. at 1422-23, the Fifth Circuit overruled Nettles and adopted a new rule. The new rule read:
[A] party‘s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge‘s report and recom-
mendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notiсe that such consequences will result from a failure to object.
Id. at 1428-29 (footnotes omitted).
B. Other Circuits’ Rules
We are in the minority (and most lenient camp) of the circuit courts on this issue. Our current rule is in line with the rule of only two circuit courts—the Eighth Circuit and the Ninth Circuit. The Eighth Circuit reviews unobjected-to factual findings for plain error. Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir.1994). Like our rule, the failure to object does not waive the party‘s right to challenge legal conclusions on appeal. Nash v. Black, 781 F.2d 665, 667 (8th Cir.1986). The Ninth Circuit holds that the failure to object waives a party‘s right to challenge the magistrate judge‘s factual findings. Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir.2012). But, like our rule, the failure to file objections to conclusions of law does not bar a party from challenging those conclusions on appeal. Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir.1983).
The Third and Fifth Circuits have adopted a middle-ground approach. If a party fails to object to a report and recommendation‘s factual findings or legal conclusions, both circuits appear to review those unobjected-to findings and conclusions under a plain error standard of review. See Nara v. Frank, 488 F.3d 187, 194-96 (3d Cir.2007); Douglass, 79 F.3d at 1428-29.
Most of our sister circuits have adopted a stricter approach. The First, Second, Fourth, Sixth, Seventh, and Tenth Circuits have adopted “firm waiver” rules and hold that if a party fails to object to a magistrate judge‘s report and recommendation, that party cannot challengе on appeal the factual findings and legal conclusions in the report and recommendation.
In the First Circuit, if a party fails to object to an issue, the party cannot challenge that issue on appeal unless the court decides to review the issue for plain error. See, e.g., Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 & n. 4 (1st Cir.1998) (noting that “a party‘s failure to assert a specific objection to a report and recommendation irretrievably waives any right to review by the ... court of appeals” but concluding that it did not find plain error in any event); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980) (“We conclude that a party ‘may’ file objections within ten days or he may not, as he chooses, but he ‘shall’ dо so if he wishes further consideration.“). The First Circuit‘s rule only applies when the magistrate judge gives “clear notice to litigants not only of the requirements that objections must be specific and be filed within ten days ..., but that failure to file within the time allowed waives the right to appeal the district court‘s order.” United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).
Likewise, in the Second Circuit, “[w]hen a party fails to object timely to a magistrate‘s recommended decision, it waives any right to further judicial review of that decision.” McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.1983). However, the Second Circuit will review an unobjected-to issue if it finds that the “interests of justice” require review. Wesolek v. Canadair Ltd., 838 F.2d 55, 59 (2d Cir.1988). The Second Circuit also refuses to apply its failure-to-object rule if the magistrate judge does not warn pro se litigants of the consequences of failing to object to a re-
The Fourth Circuit attaches serious consequences to a party‘s failure to object. If a party fails to object, that “party waives the right to appellate review of a magistrate‘s decision.” United States v. George, 971 F.2d 1113, 1118 n. 7 (4th Cir.1992); see also Page v. Lee, 337 F.3d 411, 416 n. 3 (4th Cir.2003) (“As we have long held, the failure to raise objections to a magistrate judge‘s recommendations waives the right to appellate review.“). Pro se litigants must “receive fair notification of the consequences of failure to object to a magistrate‘s report before such a procedural default will result in waiver of the right of appeal.” Wright v. Collins, 766 F.2d 841, 846 (4th Cir.1985).
Similarly, in the Sixth Circuit, “a party shall file objections with the district court or else waive right to appeal.” United States v. Walters, 638 F.2d 947, 950 (6th Cir.1981). But a party that fails to object will not waive the right to appellate review unless the “party was properly informed of the consequences of failing to object.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995). And because “[t]he requirement for specific objections to a magistrate judge‘s report is not jurisdictional[,] a failure to comply may be excused in the interest of justice.” Kelly v. Withrow, 25 F.3d 363, 366 (6th Cir.1994).
The Seventh Circuit follows suit. A party‘s “[f]ailure to file objections with the district court to a magistrate‘s report and recommendation waives the right to appeal all issues addressed in the recommendation, both factual and legal.” Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir.1995). The Seventh Circuit will excuse a party‘s failure to comply with its rule when applying the rule would “defeat the ends of justice.” Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 540 (7th Cir.1986).
The Tenth Circuit holds that it is “without power to review [the district court‘s] order on appeal” when a party fails to object. Niehaus v. Kan. Bar Ass‘n, 793 F.2d 1159, 1165 (10th Cir.1986). A party‘s failure to object “waives appellate review of both factual and legal questions.” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.2008). The Tenth Circuit will not apply its rule to a pro se litigant unless the magistrate judge informs the litigant of the consequences of failing to object. Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). Nor will it apply its rule if “the interests of justice require review.” Duffield, 545 F.3d at 1237.
The Supreme Court, in reviewing a Sixth Circuit case, approved the Sixth Circuit‘s rule—the failure to object to a factuаl finding or legal conclusion in the magistrate judge‘s report and recommendation bars appellate review of that factual finding or legal conclusion. Thomas v. Arn, 474 U.S. 140, 155 (1985).
In Thomas, Kathy Thomas filed a petition for a writ of habeas corpus. Id. at 143. The district court referred the petition to the magistrate judge, and the magistrate judge recommended that the petition be dismissed and warned Thomas that the “[f]ailure to file objections within the specified time waives the right to appeal the District Court‘s order.” Id. at 144. Thomas did not file any objections, and the district court dismissed her petition. Id. She appealed to the Sixth Circuit, which held that she had
The Court held that the courts of appeals may adopt such a rule, saying that “[s]uch a rule, at least when it incorporates clear notice to the litigants and an opportunity to seek an extension of time for filing objections, is a valid exercise оf the supervisory power.” Id. at 155. And the Court noted that “it seems clear” that Congress, in enacting the Federal Magistrates Act,
The Court also observed that such a rule “is supported by sound considerations of judicial economy.” Id. at 147. Specifically, the Court said:
The Sixth Circuit‘s rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from “sandbagging” the district judge by failing to object and then appealing. Absent such a rule, any issue before the magistrate would be a proper subjеct for appellate review. This would either force the court of appeals to consider claims that were never reviewed by the district court, or force the district court to review every issue in every case, no matter how thorough the magistrate‘s analysis and even if both parties were satisfied with the magistrate‘s report. Either result would be an inefficient use of judicial resources. In short, “[t]he same rationale that prevents a party from raising an issue before a circuit court of appeals that was not raised before the district court applies here.”
Id. at 147-48 (quoting United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984)).3
C. Proposal
Unlike the rule approved in Thomas, our current rule is not “supported by sound сonsiderations of judicial economy” and does not comport with the purposes of the Federal Magistrates Act.
First, our current rule does nothing to prevent a litigant from “sandbagging” a district court. Under the rule established in Nettles, litigants have little incentive to make objections to the magistrate judge‘s legal conclusions. With legal conclusions, litigants can choose not to object, allow the district court to adopt the report and recommendation, and then raise the issue on appeal and receive de novo review without having given the district court the opportunity to review the issue in the first instance.
Second, our rule is inconsistent with the purposes of the Federal Magistrates Act. The Act permits district courts to appoint magistrate judges to hear and provide recommendations on certain matters.
For these reasons, we urge the court to overrule Nettles and adopt a rule for civil cases that attaches consequences to the failure to object to either factual findings or legal conclusions in a magistrate judge‘s report and recommendation.4
We propose adopting a rule that permits plain error review of unobjected-to factual findings or legal conclusions if the “interests of justice” require such review. See Thomas, 474 U.S. at 155 (“[B]ecause the rule is a nonjurisdictional waiver provision, the Court of Appeals may excuse the default in the interests of justice.“). Permitting, but not requiring, plain error review in the interests of justice is consistent with the rules of many of our sister circuits. See, e.g., Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011) (excusing failure to object “in the interest of justice” (internal quotation marks omitted)); Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir.2004) (recognizing that the court‘s firm waiver rule should not be employed if it would “defeat the ends of justice” (internal quotation marks omitted)); Wirsching v. Colorado, 360 F.3d 1191, 1198 (10th Cir.2004) (declining to apply waiver rule in the “interests of justice“); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992) (noting that the court will excuse the failure to object in the “interests of justice” (internal quotation marks omitted)); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.1991) (noting that waiver may be appropriate “unless there are circumstances suggesting that it will work a substantial inequity“). Such a rule should apply only if the parties are given notice of the consequences of the failure to object. Most of our sister circuits require such notice. See, e.g., Douglass, 79 F.3d at 1428-29; Miller, 50 F.3d at 380; Moore, 950 F.2d at 659; Small, 892 F.2d at 16; Valencia-Copete, 792 F.2d at 6; Nash, 781 F.2d at 667; Wright, 766 F.2d at 846. And such a rule should be given only prospective effect because rules of procedure should “promote the ends of justice, not defeat them.” Hormel v. Helvering, 312 U.S. 552, 557 (1941).5
In Thomas, the Supreme Court held that courts of appeals may, in the exercise
V. CONCLUSION
The judgment in this case is vacated and remanded.
VACATED AND REMANDED.
COX
CIRCUIT JUDGE