Case: 16-10537     Date Filed: 01/17/2017    Page: 1 of 6


                                                          [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-10537
                             Non-Argument Calendar
                           ________________________

                        D.C. Docket No. 1:15-cv-23790-JLK


BILLY WARNER,
individually and on behalf of all others similarly situated,

                                                                 Plaintiff-Appellant,

                                        versus


TINDER, INC.,

                                                                Defendant-Appellee.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                 (January 17, 2017)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 16-10537        Date Filed: 01/17/2017       Page: 2 of 6


        Billy Warner (“Warner”), a Florida resident and representative of a putative

class, appeals the dismissal, with prejudice, of his case against Tinder, Inc.

(“Tinder”). The instant action is substantially similar to another putative class

action filed by Warner in the Central District of California. Warner v. Tinder, Inc.,

No. 2:15-cv-01668-MMM-AJW (C.D. Cal. 2015). That case (“Warner I”) was

dismissed with leave to amend by the district court and then voluntarily dismissed

by Warner prior to the filing of the present action. Warner then filed this action in

the Southern District of Florida and Tinder moved to dismiss under Federal Rule of

Civil Procedure 12(b)(6). After receiving briefing and without oral argument, the

district court found that both the first-filed doctrine and the prohibition against

judge shopping applied and that dismissal with prejudice was appropriate. 1 On

appeal, Warner argues that he violated neither the prohibition on judge shopping

nor the first-filed rule and that, in any event, the district court abused its discretion

when it dismissed the action with prejudice when lesser sanctions were available.

       This Court has held that district courts possess the inherent power to police

their own dockets. Mingo v. Sugar Cane Growers Co-op of Fla., 

, 102

(11th Cir. 1989). As a corollary to this power, judges have the authority to impose

formal sanctions on litigants ranging “from a simple reprimand to an order


       1
         There is a question on appeal as to whether the decision to grant the motion to dismiss
on these grounds was sua sponte. Because the answer to that question is immaterial to the
resolution of this case on appeal, we do not address it.
                                                2
               Case: 16-10537     Date Filed: 01/17/2017     Page: 3 of 6


dismissing the action with or without prejudice.” Id.; see also Goforth v. Owens,

, 1535 (11th Cir. 1985) (“The court’s power to dismiss is an inherent

aspect of its authority to enforce its orders and insure prompt disposition of

lawsuits.”). Dismissal of a case with prejudice is considered “an extreme sanction

that may be properly imposed only when: (1) a party engages in a clear pattern of

delay or willful contempt (contumacious conduct); and (2) the district court

specifically finds that lesser sanctions would not suffice.” Betty K Agencies, Ltd.

v. M/V MONADA, 

, 1338 (11th Cir. 2005) (collecting cases).

“[F]indings satisfying both prongs of [this] standard are essential before dismissal

with prejudice is appropriate.” 

This Court reviews a decision of the

district court to dismiss with prejudice for abuse of discretion. 

      Warner first argues that this action is violative of neither the prohibition on

judge shopping nor the first-filed doctrine. As to the charge of judge shopping, he

argues that by refiling this action in the Southern District of Florida he was merely

being responsive to the concerns, expressed by the California federal court in

Warner I, that this action would be more properly prosecuted in his state of

residency. Likewise, to the extent that the district court’s ruling relied on the first-

filed rule, Warner argues that the doctrine is inapplicable. See Manuel v.

Convergys Corp., 

, 1135 (11th Cir. 2005) (“Where two actions

involving overlapping issues and parties are pending in two federal courts, there is


                                            3
                 Case: 16-10537       Date Filed: 01/17/2017       Page: 4 of 6


a strong presumption across the federal circuits that favors the forum of the first-

filed suit under the first-filed rule.” (emphasis added)). Additionally, he argues that

the district court abused its discretion—the “outer boundary” of which this Court

has “articulated with crystalline clarity”—by failing to make findings on either of

the two prongs of the test laid out in Betty K Agencies.

       As an initial matter, we are hesitant to conclude from the record on appeal

that this action is violative of either the prohibition on judge shopping or the first-

filed rule. 2 However, the resolution of this appeal does not require us to decide

those doctrines’ applicability because the district court failed to make the necessary

findings that Warner engaged in a clear pattern of delay or willful conduct and that

lesser sanctions—if indeed any were warranted—were insufficient. See, e.g., Betty

K 

(“[F]indings satisfying both prongs of our standard

are essential . . . .); World Thrust Films, Inc. v. Int’l Family Entm’t, Inc., 

, 1456–57 (11th Cir. 1995) (vacating and remanding a dismissal with

prejudice for failure to make a finding on the second prong); 

–03 (same). As this Court has noted, “[w]e rigidly require the district courts to

make these findings precisely ‘[b]ecause the sanction of dismissal with prejudice is

so unsparing . . . .’ ” Betty K 

(quoting Mingo, 

          Although we do not decide the issue, we are particularly skeptical of the conclusion that
this action would violate the first-filed rule. At no point was this case pending in two federal
courts at the same time—something that our case law appears to suggest is a requisite for
application of the rule. See 

.
                                                 4
                 Case: 16-10537        Date Filed: 01/17/2017       Page: 5 of 6


at 103) (alteration in original). Although this Court has occasionally concluded that

these necessary findings were implicit in a district court’s order, “we have never

suggested that the district court need not make that finding, which is essential

before a party can be penalized for his attorney’s misconduct.” World 

(quoting 

). Moreover, we have only been

willing to make such an inference when lesser sanctions would have greatly

prejudiced the defendant to the action. World 

.

      In Mingo we empathized with the district court’s observations that “it would

be unfair to defendant to allow this unhappy litigation to drag on longer than it

already has,” and that “the circumstances of this case cry out for such a ‘just,

speedy, and inexpensive determination.’ ” 

. Nonetheless we

concluded that “[b]ecause the sanction of dismissal with prejudice is so unsparing,

however, we hesitate to infer from this language that the trial court reflected upon

the wide range of sanctions at its disposal and concluded that none save dismissal

would spur this litigation to its just completion.” 

there, we are

unwilling to sanction an imposition of the “extreme sanction” of dismissal with

prejudice absent clear findings that Warner engaged in contumacious conduct and

that lesser sanctions would have been insufficient to accomplish the district court’s

objective.3


      3
          We note as well that, unlike the court in Mingo, the district court here has provided no
                                                 5
                Case: 16-10537       Date Filed: 01/17/2017      Page: 6 of 6


       Accordingly, we REVERSE the decision of the district court to dismiss

Warner’s complaint with prejudice and REMAND for further proceedings not

inconsistent with this opinion.4

       REVERSED AND REMANDED.




language from which we could make the necessary inference even if we were so inclined.
       4
        We have also reviewed Tinder’s Request for Judicial Notice and recognize its potential
relevance to these proceedings on remand. Accordingly, the Request for Judicial Notice is
GRANTED and we commit to the district court’s discretion its applicability on remand.
                                               6