307 F.3d 1277 (11th Cir. 2002), 01-11373, Riccard v. Prudential Ins. Co.

Docket Nº:01-11373, 01-15209, 01-15219.
Citation:307 F.3d 1277
Party Name:William RICCARD, Plaintiff-Appellant, Robert W. Rasch, Interested Party-Appellant, v. PRUDENTIAL INSURANCE COMPANY, Defendant-Appellee. William Riccard, Plaintiff-Appellant, v. Prudential Insurance Company of America, a New Jersey corporation, Defendant-Appellee. William Riccard, Plaintiff-Appellant, v. Prudential Insurance Company of America, a fo
Case Date:September 24, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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307 F.3d 1277 (11th Cir. 2002)

William RICCARD, Plaintiff-Appellant,

Robert W. Rasch, Interested Party-Appellant,



William Riccard, Plaintiff-Appellant,


Prudential Insurance Company of America, a New Jersey corporation, Defendant-Appellee.

William Riccard, Plaintiff-Appellant,


Prudential Insurance Company of America, a foreign corporation, Defendant-Appellee,

Mary Ann Caso, Claims Administrator for the Prudential Insurance Company of America, Inc., Mark Martin, General Manager for the Prudential Insurance Company of America, Inc., Defendants.

Nos. 01-11373, 01-15209, 01-15219.

United States Court of Appeals, Eleventh Circuit

September 24, 2002

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Robert w. Rasch, Altamonte Springs, FL, for Plaintiff-Appellant.

Michael S. Gugig, Michael H. Barr, Sonnenschein, Nath & Rosenthal, New York City, Alan Harrison Brents, Ralph C. Losey, Katz, Kutter, Haigler, Alderman, Bryant & Yon P.A., Orlando, FL, for Defendant-Appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before EDMONDSON, Chief Judge, and CARNES and SILER [*], Circuit Judges.

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CARNES, Circuit Judge:

William Riccard was demoted by his employer, Prudential Insurance Company, and later left its employ after being placed on disability. The result of Riccard's demotion was to lessen the amount of disability payments he received. In response, Riccard launched a bitter campaign against Prudential that has included the filing of four lawsuits; the filing of complaints alleging misconduct by Prudential with the Securities and Exchange Commission, the United States Attorney's Office, the Banking and Insurance Department of one state, and the Agricultural Department of another; the filing of a motion for sanctions against Prudential and some of the attorneys representing it; and the filing of ethical complaints with the Bar Associations of two states against those attorneys. The district court has attempted to dispose of Riccard's lawsuits in a principled fashion and to do what it could to minimize the burden of his many filings on the judicial system and others.

We have before us appeals that Riccard has filed contesting orders and judgments, including sanctions and civil contempt orders, entered against him in the second and third of his four lawsuits. His attorney, Robert Rasch, is also an appellant to the extent necessary to challenge sanctions imposed against Rasch. In all, Riccard and Rasch challenge a total of nine orders the district court entered in the two lawsuits. We will take up each of them after setting out some background.


Riccard began working for Prudential in 1970 as a sales representative and was eventually promoted to sales manager. In July 1995, he took leave from his job on short-term disability, and in September of that year his doctor informed Prudential that Riccard could return to work. Prudential requested that he return. After two weeks back at work, Riccard allegedly suffered an "industrial accident" and again took a short-term disability leave. In November 1995, he was demoted from his position as sales manager back to sales representative. He was subsequently placed on long-term disability leave and received disability payments from Prudential until November 1999, at which time he began collecting his pension.

Approximately a year after going on long-term disability, Riccard began filing a series of lawsuits against Prudential. We will refer to them in the order in which they were filed as Riccard I-IV.


In September 1997, Riccard sued Prudential for breach of contract, alleging among other things, that Prudential had violated their employment agreement by demoting him from sales manager to sales representative which resulted in his disability benefits being lower than they would have been had he not been demoted. Riccard v. Prudential Ins. Co., No. 97-1224-CV-ORL-19C (1997). On Prudential's motion the district court ordered the case to arbitration after both sides acknowledged that the plain language of a National Association of Securities Dealers ("NASD") 1 form agreement Riccard had signed during his employment gave Prudential the right to insist upon arbitration of their dispute. An NASD arbitration panel rejected Riccard's claims, and the district court confirmed the panel's decision.

Riccard later moved to overturn the district court order confirming the panel's

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decision on the ground that he had learned after the case had been sent to arbitration that Prudential was not a member of the NASD at the time. The district court denied Riccard's motion and a subsequent motion for reconsideration, and Riccard did not appeal that decision or the judgment entered in conformity with it.


After filing a complaint with the Equal Employment Opportunity Commission ("EEOC") in April 1996 and being issued a "right to sue" letter by the Commission in September 1997, Riccard filed his second lawsuit against Prudential, in November 1997, this time claiming age and disability discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the Florida Civil Rights Act. 2 On Prudential's motion, the district court compelled the case to arbitration, as it had done in Riccard I, on the basis of the NASD agreement Riccard had signed while employed by Prudential.

Riccard contended (and still contends) that Prudential's non-membership in the NASD at the time his lawsuit was filed, though it was a member at the time of the alleged events giving rise to the claims and at the time Riccard filed the EEOC charge, took the case out from under the arbitration agreement. The district court, however, determined that Prudential was an intended third party beneficiary of the arbitration agreement with standing to enforce the agreement naming as Riccard's "member firm" Prudential's subsidiary Pruco, which was an NASD member during the entire period--including the time the lawsuit was filed.

Riccard brought to this Court an interlocutory appeal of the district court's order compelling arbitration. We dismissed the appeal after the parties jointly stipulated to a dismissal with prejudice because the appeal had been taken prematurely.

The NASD arbitration panel which heard Riccard's second case dismissed all of his claims with prejudice after holding approximately fifty evidentiary sessions in which twenty-two witnesses testified. The district court subsequently confirmed the arbitration panel decision in favor of Prudential and denied Riccard's motion to vacate the decision. Riccard has now timely appealed the district court's earlier order compelling arbitration and its order confirming the arbitration award.


In October 1999, Riccard filed his third lawsuit against Prudential, alleging, among other things, fraudulent misrepresentation and deceit in the denial of certain disability and medical benefits in violation of Employee Retirement Income Security Act of 1974 ("ERISA"). In a second amended complaint he restyled his claim as one for breach of fiduciary duty in connection with the denial of benefits due under his health plans and for the recovery of the benefits due under his plans. He filed a third amended complaint to allege that Prudential's fraudulent misrepresentation of its NASD membership status had caused him to improperly agree to arbitrate his claims in Riccard I, and also to allege "further [a]ge discrimination, [d]isability discrimination,

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and [r]etaliation" by Prudential against Riccard for filing the two earlier lawsuits against it.

After Riccard filed that third amended complaint, Prudential moved pursuant to Federal Rule of Civil Procedure 12(b) (6) to dismiss, among others, the fraudulent misrepresentation count. The district court granted the motion, determining as a matter of law that Riccard could not establish that he had detrimentally relied on any misrepresentation by Prudential of its NASD membership status.

When the district court dismissed the fraudulent misrepresentation count, it also dismissed the "further retaliation and discrimination" count without prejudice and directed Riccard to file a fourth amended complaint in "greater detail, clearly asserting the acts that qualify as statutorily protected activity and adverse employment actions, as well as the dates on which these acts (and any acts related to them) occurred." Riccard did file a fourth amended complaint which dropped the "further discrimination" claim and re-pleaded the retaliation claim in greater detail. Shortly thereafter, the district court stayed discovery in the case. Riccard filed a motion to reconsider the discovery stay, which the court denied. The district court granted a motion for judgment on the pleadings filed by Prudential pursuant to Rule 12(c), and it dismissed the restyled "further retaliation" claim in the fourth amended complaint.

Riccard timely appealed the judgment the district court entered against him in his third lawsuit.


In April 2000, while the proceedings in Riccard II and Riccard III were pending, Riccard, via his attorney Rasch, filed a Rule 11 motion for sanctions against Prudential. The motion, which was actually filed in the Riccard II case, alleged that Prudential had misrepresented its NASD membership status not only to the district court in Riccard II when it moved to compel arbitration, but to other federal courts...

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