Case: 19-11391   Date Filed: 03/13/2020   Page: 1 of 12



                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11391
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:18-cv-00112-SCJ

TIM SUNDY,

                                                           Plaintiff-Appellant,

                                  versus

FRIENDSHIP PAVILION ACQUISITION
COMPANY, LLC,
GARY PICONE,
THOMAS LING,
MICHAEL WEINSTEIN,
ARSENAL REAL ESTATE FUND II-IDF,
L.P.,
GEORGIA DEPARTMENT OF
TRANSPORTATION,
et al.,
                                                       Defendants-Appellees.
                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (March 13, 2020)
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Before NEWSOM, BRANCH, and HULL, Circuit Judges.

PER CURIAM:

       Tim Sundy, proceeding pro se, appeals the dismissal of his complaint

brought under 42 U.S.C. §§ 1983 and 1985 for alleged violations of his

constitutional rights. His suit arises out of a lease and road-construction dispute in

state court in 2015, and Sundy’s subsequent state-court action against various

parties and state-court judges involved in the litigation (some of which were

removed to federal court). While the state-court action was pending, Sundy filed

the present suit in federal court naming various individuals and entities as

defendants, including (as relevant here): (1) employees in the Hall County clerk’s

office (collectively, the clerk defendants); (2) Christopher Carr, Georgia’s Attorney

General (Carr); and (3) Friendship Pavilion Acquisition Company, LLC, the

Arsenal Real Estate Fund II-IDF, L.P., Gary Picone, Thomas Ling, and Michael

Weinstein (collectively, the Friendship defendants). 1

       Liberally construing his briefs, Sundy first asserts on appeal (a) that the

district court erred in dismissing his claims against Carr and the clerk defendants


1
  Sundy also named various other parties as defendants, but he abandoned his claims against
them by failing to challenge in his initial brief all or part of the bases for dismissal cited by the
district court. See Timson v. Sampson, 

, 874 (11th Cir. 2008); see also Sapuppo v.
Allstate Floridian Ins. Co., 

, 683 (11th Cir. 2014) (explaining that if an appellant
does not appropriately challenge in an initial brief one of the grounds on which the district court
based its judgment, he is deemed to have abandoned any challenge to that ground, and the
district court’s judgment should be affirmed).


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based on the abstention doctrine set out in Younger v. Harris, 

(1971),

because, he says, his due process and equal protection claims were not presented to

the state court and are “independent” of the state-court proceedings, 2 and (b) that

the district court erred in not allowing him to amend his complaint. Second, he

argues that the district court erred (a) by dismissing the claim against Friendship as

nonjusticiable because his requested declaratory relief would not redress his

alleged injuries, and (b) by granting Friendship’s motion to set aside entry of

default even though it did not “present[] a meritorious defense.” Finally, he argues

that the removal of documents from the district court’s docket, a delay in fixing

clerical mistakes, and a “secret” ex parte hearing by the court to find the missing

documents violated his right to due process to be fully heard upon a complete

record, “depriv[ed] [him] of his right to avoid cross-examine,” and “nullif[ied] the

confrontation clause of the 6th Amendment.” 3 We will address each contention in

turn.




2
  Sundy’s claims are difficult to discern. At times, he seems to contend that various state-court
employees engaged in a conspiracy against him—including by removing papers from the docket
and conducting hearings without him. At other times, he simply (and even more vaguely) asserts
that his due process, equal protection, and access-to-courts rights were violated.
3
 Sundy also argues that the district court erred in denying his motion to proceed in forma
pauperis (IFP) as frivolous; however, this is not a final, appealable order. See 28 U.S.C. § 1291.
We note that the proper procedure for challenging the district court’s decision was through a
motion to proceed IFP in this Court, which we denied because his appeal was frivolous.
Moreover, because he paid the requisite filing fee, any issue in this respect is moot. Therefore,
we dismiss his appeal with respect to this issue.


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                                                I

       Sundy first argues (a) that the district court erred in dismissing his claims

against Carr and the clerk defendants based on the Younger abstention doctrine and

(b) that the district court erred in not allowing him to amend his complaint.4

                                               A

       In Younger, the Supreme Court held that a federal district court may not

enjoin a pending criminal state-court proceeding except under extraordinary

circumstances. Green v. Jefferson Cty. Comm’n, 

, 1250 (11th Cir.

2009); see also Younger, 

. The Supreme Court has since expanded the

Younger doctrine to include, as relevant here, civil proceedings that “implicate

state courts important interests in administering certain aspects of

their judicial systems.” 

–51 (quotation omitted).

Especially as applied to civil cases, the Younger abstention doctrine is “an

extraordinary and narrow exception to the duty of a district court to adjudicate a

controversy properly before it.” 

(quotation omitted). As such, the

doctrine “only applies where the state proceeding at issue involves orders that are




4
  “We review de novo the district court’s grant of a motion to dismiss,” 

,
but review a district court’s decision to abstain on Younger grounds for an abuse of discretion,
Wexler v. Lepore, 

, 1338 (11th Cir. 2004). “[W]e review de novo the underlying
legal conclusion of whether a particular amendment to the complaint would be futile. Chang v.
JPMorgan Chase Bank, N.A., 

, 1093–1094 (11th Cir. 2017) (quotation omitted).


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uniquely in furtherance of the state courts’ ability to perform

their judicial functions.” 

      For Younger abstention to apply, certain factors must be met—(1) the state

judicial proceedings must be ongoing, (2) the proceedings must “implicate

important state interests,” and (3) the federal plaintiff must have had “an adequate

opportunity” to raise constitutional challenges in the state proceedings. See 31

Foster Children v. Bush, 

, 1274–75 (11th Cir. 2003) (quotation

omitted); see also Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 

, 432 (1982). The first factor is met when a state proceeding is ongoing

and the relief that plaintiff seeks would interfere with it. 31 Foster 

. As for the second factor, the Supreme Court has repeatedly

recognized that states “have important interests in administering certain aspects of

their judicial systems.” Pennzoil Co. v. Texaco, Inc., 

, 12–13 (1987).

With respect to the third factor, “plaintiffs have the burden of establishing that the

state proceedings do not provide an adequate remedy for their federal claims.” 31

Foster 

. “A federal court should assume that state

procedures will afford an adequate remedy, in the absence of unambiguous

authority to the contrary.” 

“The relevant question is not

whether the state courts can do all that Plaintiffs wish they could, but whether the

available remedies are . . . adequate. 

(quotation omitted).



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      Younger abstention applies to claims for injunctive relief as well as claims

for declaratory relief “that would effectively enjoin state proceedings.” Old

Republic Union Ins. Co. v. Tillis Trucking Co., 

, 1261, 1263–64

(11th Cir. 1997). Additionally, Younger abstention may apply to § 1983 claims

raising constitutional challenges relating to an ongoing state proceeding. See Doby

v. Strength, 

, 1405–06 (11th Cir. 1985).

      To the extent that Sundy sought a declaratory judgment stating, among other

things, that the manner in which the state court accepted his pleadings was

unconstitutional, those orders were “uniquely in furtherance of the state court[’s]

ability to perform [its] judicial function[].” See 

(quotation omitted). Furthermore, each of the Younger abstention factors has been

satisfied here—the state-court proceedings were ongoing and implicated an

important state interest, and Sundy failed to offer any evidence to overcome the

presumption that the state processes can provide an adequate remedy, especially

where he has filed appeals and writs of mandamus in the Georgia Court of Appeals

and Georgia Supreme Court. Accordingly, the district court did not abuse its

discretion by dismissing Sundy’s claims against Carr and the clerk defendants

based on the Younger abstention doctrine.




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                                              B

       Under Federal Rule of Civil Procedure 15(a), “a district court ‘should freely

give leave’ to amend a complaint ‘when justice so requires.’” 

(quoting Fed. R. Civ. P. 15(a)(2)). But importantly, “a district court may

properly deny leave to amend the complaint under Rule 15(a) when such

amendment would be futile, such as when the complaint as amended is still subject

to dismissal because, for example, it fails to state a claim for relief.” 

       Here, an amended complaint would have been futile because further

allegations of similar activity—i.e., assertions that his constitutional rights were

violated, whether in conjunction with a conspiracy to remove papers and hold

secret hearings or otherwise—would have been equally subject to dismissal under

the Younger doctrine. Therefore, the district court did not err in refusing to allow

Sundy leave to amend his complaint.

                                              II

       Second, Sundy asserts that the district court erred (a) by dismissing his claim

against Friendship as nonjusticiable, and (b) by granting Friendship’s motion to set

aside entry of default. 5



5
 We review questions of subject-matter jurisdiction de novo. Pintando v. Miami-Dade Hous.
Agency, 

, 1242 (11th Cir. 2007). We review a district court’s ruling on a motion


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                                               A

       “Any time doubt arises as to the existence of federal jurisdiction, we are

obliged to address the issue before proceeding further.” Atlanta Gas Light Co. v.

Aetna Cas. & Sur. Co., 

, 414 (11th Cir. 1995). In all cases asserting

claims under the Declaratory Judgment Act—such as this one—“the threshold

question is whether a justiciable controversy exists.” 

federal

jurisdiction under the Declaratory Judgment Act to actual controversies, in

statutory recognition of the fact that federal judicial power under Article III,

Section 2 of the United States Constitution extends only to concrete ‘cases or

controversies.’” 

who invokes a federal court’s authority must show, at an

‘irreducible minimum,’ that at the time the complaint was filed, he has suffered

some actual or threatened injury resulting from the defendant’s conduct, that the

injury fairly can be traced to the challenged action, and that the injury is likely to

be redressed by favorable court disposition.” 

The

Supreme Court has explained that “[t]he requirement of [an] actual injury

redressable by the court, serves several of the implicit policies embodied in Article

III.” Valley Forge Christian Coll. v. Ams. United for Separation of Church &



to set aside an entry of default for abuse of discretion. See Compania Interamericana Export-
Import, S.A. v. Compania Dominicana de Aviacion, 

, 950 (11th Cir. 1996).


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State, 

, 472 (1982) (citation and quotations omitted). “It tends to

assure that the legal questions presented to the court will be resolved . . . in a

concrete factual context conducive to a realistic appreciation of the consequences

of judicial action.” 

if the district court gave Sundy precisely what he asked for—a

declaratory judgment stating that Friendship submitted a false affidavit with the

Georgia Department of Transportation—that relief, alone, could not actually

redress his alleged harm (deprivation of property) or completely resolve this case.

Instead, it would only resolve a collateral issue; he would still have to return to

state court, where he might (or might not) be able to use the declaratory judgment

in support of a new suit seeking monetary damages. Cf. Calderon v. Ashmus, 

, 746–47 (1998) (holding that a litigant’s request under the Declaratory

Judgment Act for what is in effect “an advance ruling” on a collateral issue—rather

than a “conclusive determination” of the underlying controversy—does not

constitute an Article III “case or controversy”). Therefore, Sundry’s alleged injury

was not likely to be redressed by a favorable court disposition, and the district

court did not err in dismissing the claims against the Friendship defendants as

nonjusticiable.




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                                           B

      “[W]e have a strong preference for deciding cases on the merits—not based

on a single missed deadline—whenever reasonably possible.” Perez v. Wells

Fargo N.A., 

, 1332 (11th Cir. 2014). We have explained that

Federal Rule of Civil Procedure 55(a) “mandates the entry of default so that the

adversary process [will not be] halted because of an essentially unresponsive

party.” 

(alteration in original) (quotation omitted). “[A] motion for

relief under Rule 55(c) . . . is appropriate . . . even when there has not been a

formal entry of default . . . .” 

(quotation omitted). “The

court may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c);

–38. “Good cause” is a flexible, “mutable standard.”

Compania Interamericana Export-Import, S.A. v. Compania Dominicana de

Aviacion, 

, 951 (11th Cir. 1996) (quotation omitted). To determine

what constitutes good cause, courts have considered, but are not limited to, factors

such as the willfulness of the default, “whether setting it aside would prejudice the

adversary, and whether the defaulting party presents a meritorious defense.” 

denial of a Rule 55(c) motion). “Whatever factors are employed,

the imperative is that they be regarded simply as a means of identifying




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circumstances which warrant the finding of ‘good cause’ to set aside a default.”

       Here, Friendship had a meritorious defense—i.e., that the case was

nonjusticiable. Given that fact, and the other attendant circumstances, the district

court did not abuse its discretion by setting aside the entry of default.

                                               III

       Finally, Sundy contends that the removal of documents from the district

court’s docket, a delay in fixing clerical mistakes, and a “secret” ex parte hearing

by the court to find the missing documents violated his constitutional rights.6

        “A district court must be able to exercise its managerial power to maintain

control over its docket.” Young v. City of Palm Bay, 

, 864 (11th Cir.

2004). “This power is necessary for the court to administer effective justice and

prevent congestion.” 

Fifth Circuit explained that “court resources

and capacities are finite,” and so, “within proper limits, judges must be permitted

to bring management power to bear upon massive and complex litigation to

prevent it from monopolizing the services of the court to the exclusion of other




6
 “We review a district court’s decision made in the course of managing its docket for an abuse
of discretion.” Scantland v. Jeffry Knight, Inc., 

, 1320 (11th Cir. 2013). “The
district court has a range of options; and so long as the district court does not commit a clear
error in judgment, we will affirm the district court’s decision.” Young v. City of Palm Bay, 

, 863 (11th Cir. 2004).


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litigants.” In re Air Crash Disaster at Florida Everglades, 

, 1012

(5th Cir. 1977).

      Here, the district court did not abuse its discretion when it corrected the

docketing errors to which Sundy objected. Likewise, given the complexity of the

litigation, involving numerous parties and filings, the court did not take an

unreasonably long time to rule on the motions to dismiss, which fully disposed of

the case and made discovery unnecessary. Finally, the district court did not hold a

secret, ex parte meeting by speaking with the court clerks about allegedly missing

documents without Sundy present, and Sundy’s decision not to appear at the

motions hearing, despite clearly being aware of it, did not make it an unlawful ex

parte hearing. Accordingly, Sundy failed to show any actual harm or abuse of

discretion by the district court in this respect.

      AFFIRMED IN PART AND DISMISSED IN PART.




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