2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-22-2013

Jackson Hewitt Inc v. Barnes Entr Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1378

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 11-1378 & 11-4647

___________

JACKSON HEWITT, INC.

v.

BARNES ENTERPRISES, INC., a South Carolina Corporation; 

RICHARD S. BARNES, an individual; DJSG UTAH TAX SERVICE, LLC; 

DONALD J. GODBEHERE; SHEILA GODBEHERE; G.A.L.T. INVESTMENTS, LLC, 

a Texas limited liability company; GEORGE SCHULTZ, individual; LINDA SCHULTZ, 

individual; ANDREW FOURNIER, individual; TRACI ELTER, individual; 

H.E.A.T. ENTERPRISES, LLC; ARAKEL HAGOPIAN, a Texas limited liability 

company; NATIONAL TAX NETWORK, LLC; KATHRYNE L. WARD; 

RONALD N. CLARK, an individual; PATSY T. CHANEY, an individual; 

US SERVICES, INC.; ROGER M. YOUNG, JJS FINANCIAL, LLC; JAMES E. HACK; 

SONJA WILLIAMS; JAMES WILLIAMS

DJSG Utah Tax Service, LLC; Donald J. Godbehere; Sheila Godbehere, 

Appellants in No. 11-1378

Donald J. Godbehere; Sheila Godbehere,

Appellants in No. 11-4647

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action Nos. 2:10-cv-05108 & 2:10-cv-05330)

District Judge: Honorable Dennis M. Cavanaugh

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 20, 2013

Before: JORDAN, SHWARTZ and SCIRICA, Circuit Judges

(Opinion filed: August 22, 2013)
2

___________

OPINION

___________

PER CURIAM

Before us are two consolidated appeals that stem from a civil action brought by 

Appellee Jackson Hewitt Inc. (“Jackson Hewitt”) against Appellants Donald Godbehere, 

Sheila Godbehere, and DJSG Utah Tax Service, LLC (“DJSG”). The first appeal

concerns, inter alia, the District Court’s order granting Jackson Hewitt’s motion for a 

preliminary injunction. The second appeal challenges the District Court’s order granting 

Jackson Hewitt’s motion for sanctions in the form of a default judgment. For the reasons 

that follow, we will dismiss the first appeal for failure to prosecute and affirm the order 

challenged in the second appeal. 

I.

DJSG is a former Jackson Hewitt franchisee, and the Godbeheres were the coguarantors of DJSG’s franchise agreements with Jackson Hewitt. In October 2010, 

Jackson Hewitt filed a complaint against Appellants in the District Court, alleging, inter 

alia, trademark infringement, unfair competition, and breach of contract. The complaint, 

which was docketed at Case No. 2:10-cv-05330, primarily sought damages and injunctive 

relief, including the enforcement of a two-year non-compete provision that was included 

in the franchise agreements. 
3

Around that same time, Jackson Hewitt filed similar complaints in the District 

Court against other former franchisees and guarantors. In November 2010, the District 

Court consolidated all of these actions under Case No. 2:10-cv-05108. Several additional 

actions brought by Jackson Hewitt were later added to these consolidated proceedings.

In December 2010, Jackson Hewitt moved for a preliminary injunction against 

Appellants. Appellants opposed that motion; they also cross-moved to dismiss the case 

for lack of jurisdiction or, in the alternative, transfer the case to the United States District 

Court for the District of Arizona. On January 11, 2011, the District Court entered an 

order denying Appellants’ motion and granting Jackson Hewitt’s motion. Appellants

then filed additional motions, requesting, inter alia, reconsideration of the District Court’s 

decision. While those new motions were pending, Appellants filed a counseled notice of 

appeal challenging the District Court’s January 11, 2011 decision. That appeal was 

assigned C.A. No. 11-1378. On February 17, 2011, the District Court issued an opinion 

denying Appellants’ pending motions. Thereafter, the Godbeheres — but not DJSG —

filed a counseled notice of appeal challenging that latest decision. This new notice of 

appeal was docketed as an amended notice of appeal in C.A. No. 11-1378. 

The District Court proceedings moved forward notwithstanding the notices of 

appeal. On September 6, 2011, the United States Magistrate Judge who was assigned to 

the case issued a scheduling order that, inter alia, directed Appellants to serve their initial 

disclosures and respond to Jackson Hewitt’s discovery requests by September 22, 2011. 
4

The order stressed that failure to comply with this directive would result in sanctions 

pursuant to Federal Rules of Civil Procedure 16(f) and 37.

On September 23, 2011, Jackson Hewitt moved for sanctions against the 

Godbeheres pursuant to Rule 37, arguing that a default judgment was warranted because 

the Godbeheres had failed to comply with the scheduling order. The Godbeheres did not 

respond to the motion. On November 29, 2011, the District Court granted the motion, 

concluding that a balancing of the six factors set forth in Poulis v. State Farm Fire & 

Casualty Co., 747 F.2d 863 (3d Cir. 1984), weighed in favor of imposing sanctions in the 

form of a default judgment.1

The Godbeheres’ third notice of appeal was docketed as a separate appeal, 

assigned C.A. No. 11-4647, and consolidated with C.A. No. 11-1378. Appellants’ 

 The Godbeheres then filed a third notice of appeal — this 

time on a pro se basis — challenging this new decision. In May 2012, the District Court 

deconsolidated the cases and placed this action under its original case number. 

 1 The six Poulis factors are as follows:

(1) the extent of the party’s personal responsibility; (2) the 

prejudice to the adversary caused by the failure to meet 

scheduling orders and respond to discovery; (3) a history of 

dilatoriness; (4) whether the conduct of the party or the 

attorney was willful or in bad faith; (5) the effectiveness of 

sanctions other than dismissal, which entails an analysis of 

alternative sanctions; and (6) the meritoriousness of the claim 

or defense.

Poulis, 747 F.2d at 868 (emphasis omitted).
5

attorney in C.A. No. 11-1378 subsequently withdrew as counsel for the Godbeheres, but 

remained as the attorney of record for DJSG. The appeals are now ready for disposition.

2

II.

We begin our analysis by determining the scope of our review. DJSG, which is an 

appellant only in C.A. No. 11-1378, has not filed a brief,3

 2 In February 2012, pro se litigant Kathryne Ward, one of the other defendants in the 

consolidated District Court proceedings, advised this Court that she intended to 

participate in the appeal in C.A. No. 11-4647. A few months later, Ward filed a petition 

for relief under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court 

for the District of Arizona. As a result of that bankruptcy filing, the appeals brought by 

Ward herself, see C.A. Nos. 11-1377 & 11-4646, were stayed pursuant to 11 U.S.C. 

§ 362(a). That stay does not apply, however, to the instant appeals because they do not 

concern an action that was brought against her or otherwise fall under § 362(a). Because 

Ward has not filed a brief with respect to the instant appeals or indicated her intent to rely 

on one of the other party’s briefing, any arguments that she may have intended to present 

here have been waived. See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster 

Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994).

and the Godbeheres have not 

submitted briefing that addresses that appeal. Accordingly, we will dismiss the appeal in 

C.A. No. 11-1378 for failure to prosecute. See 3d Cir. LAR Misc. 107.2(b). To the 

extent that the Godbeheres, in pursuing relief in C.A. No. 11-4647, seek to raise claims 

on behalf of Stephanie Marshall — a former franchisee employee to whom the District 

Court extended the preliminary and permanent injunctions — they may not do so

because, among other reasons, they are proceeding pro se. See 28 U.S.C. § 1654 

(providing that a party may proceed in federal court “personally or by counsel”); cf. Osei3 In May 2012, DJSG’s attorney informed this Court that DJSG had filed for bankruptcy 

in February 2011, and that the bankruptcy action was closed in July 2011. The 

Godbeheres aver that, as a result of those proceedings, DJSG was liquidated. This may 

explain why DJSG did not file a brief here.
6

Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 883 (3d Cir. 1991) (holding that the appellant, 

a non-lawyer proceeding pro se, could not represent his children in federal court). All 

that is properly before us, therefore, is the Godbeheres’ challenge in C.A. No. 11-4647 to 

the District Court’s November 29, 2011 order granting a default judgment in favor of 

Jackson Hewitt. We consider that challenge below.

We have jurisdiction to review the District Court’s November 29, 2011 order 

pursuant to 28 U.S.C. § 1291. We review that decision for abuse of discretion, see

Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 919 (3d Cir. 1992), and our review 

is “guided by the manner in which the trial court balanced the [Poulis] factors . . . and 

whether the record supports its findings,” Poulis, 747 F.2d at 868. “[T]here is no ‘magic 

formula’ or ‘mechanical calculation’ with regard to Poulis analysis,” In re Asbestos 

Prods. Liab. Litig. (No. VI), 718 F.3d 236, 246 (3d Cir. 2013) (quoting Briscoe v. Klaus, 

538 F.3d 252, 263 (3d Cir. 2008)), and “it is not necessary that all of the factors point 

toward a default before that sanction will be upheld,” Hoxworth, 980 F.2d at 919.

Having reviewed the record, and for substantially the reasons provided by the 

District Court in its opinion accompanying its November 29, 2011 order, we hold that the 

District Court did not abuse its discretion in concluding that a balancing of the Poulis

factors weighed in favor of entering a default judgment. We note that, in challenging the 

District Court’s November 29, 2011 order, the Godbeheres do not argue that the District 

Court erred in balancing the Poulis factors. In fact, neither the Godbeheres nor Jackson 

 
7

Hewitt even mentions Poulis. Instead, the parties focus on the start date of the two-year 

non-compete provision.4

 But that issue has no bearing on whether the District Court 

abused its discretion in granting a default judgment, particularly given that the entry of 

default did not turn on Poulis’s “merits” factor.5

In light of the above, we will dismiss the appeal in C.A. No. 11-1378 for failure to 

prosecute, and we will affirm the District Court’s November 29, 2011 judgment. 

 4 The provision itself stated that it was to run from the date of the termination of the 

franchise agreements; however, the prayer for relief in Jackson Hewitt’s complaint 

requested that it run from the date of the District Court’s order enforcing that provision. 

The default judgment mirrored that prayer for relief, and the Godbeheres argue that this 

effectively turned the two-year period into a three-and-a-half-year period. This argument 

is not properly before us. The District Court did not award that relief on its merits, but 

rather because the Godbeheres had failed to comply with the scheduling order.

5 The District Court concluded that this factor did not weigh in either side’s favor.