[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 15240 Non

- Argument Calendar

________________________ D.C. Docket No. 2:14

- cv - 02333

- RDP

BLACK DIAMOND LAND MANAGEMENT LLC, Plaintiff

- Appellant,

versus TWIN PINES COAL INC., DRUMMOND COMPANY INC., MOLPUS TIMBERLANDS MANAGEMENT LLC, SWF BIRMINGHAM LLC, VALLEY CREEK LAND AND TIMBER LLC, Defendants

- Appellees.

________________________ Appeal from the United States District Court for the Nort hern District of Alabama

________________________ ( August 24, 2017 ) Case: 16-15240 Date Filed: 08/24/2017 Page: 1 of 162 Before HULL , WILSON, and JULIE CARNES, Circuit Judges.
PER CURIAM: Plaintiff ’ s Second Amended Complaint ( “ Complaint ” ) asserts that Defendants wrongly appropriated coal and timber resources from Plaintiff ’ s land. This appeal concerns whether the district court erred in concluding that Plaintiff ’ s claims do not state federa l causes of action under the Lan ham Act, the Racketeer Influenced and Corrupt Organizations Act ( “ RICO ” ), or the Sherman Act. Because we agree that Plaintiff ’ s Complaint fails to plead a ny plausible federal claim for relief supported by sufficient factual allegations, we AFFIRM the district

court ’ s dismissal of Plaintiff ’ s Complaint.
I. BACKGROUND
We review de novo the district court ’ s grant of a motion to dismiss under 12(b)(6) for failure to state a claim. Hill v. White , 321 F.3d 1334, 1335 (11th Cir. 2003). Further, we accept the allegations in the complaint as true and construe them in the light most favorable to the Plaintiff. Id. As such, the facts outlined in this section are drawn from the allegations in Plaintiff ’ s Second Amended Complaint. Plaintiff

— Black Diamond Management, LLC

— asserts that the various Defendants

— Twin Pines Coal Company, Inc., Drummond Company, Inc., Molpus Timberlands Management, LLC, SWF Birmingham, LLC, and Valley Creek Land

Case: 16-15240 Date Filed: 08/24/2017 Page: 2 of 163 and Timber, LLC

— wrongly collected and sold coal and timber resources that belonged to Plaintiff. As to Twin Pines, Plaintiff asserts that it sent two letters to Twin Pines claiming ownership over the natural resources being collected by Twin Pines, but that Twin Pines nonetheless continued to collect and sell Plaintiff ’ s resources as if they were owned by Twin Pines. As to Molpus, SWF, and Valley Creek, Plaintif f simply asserts that these Defendants took and sold Plaintiff ’ s timber without authority to do so and that SWF and Valley Creek “ knew or had reason to know that Plaintiff had ownership title to the timber that they took and sold. ” For Drummond, Plaintiff asserts that Drummond sent Plaintiff two “ blasting
notices ” concerning Drummond ’ s mining operations. Plaintiff met with Drummond “ concerning Drummond ’ s interest [in] acquiring ownership of Plaintiff ’ s natural resources ” and Plaintiff sent two follow up letter s to Drummond providing a proposed contract for the purchase of Plaintiff ’ s natural resources , but Drummond continue d to mine and sell the coal. Further, Plaintiff asserts that each Defendant “ communicated with the other about their respective

— and j oint role

— in misappropriating Plaintiff ’ s natural resources

. ” (emphasis in original)

. Plaintiff also avers that U.S. Steel (not mentioned anywhere else in the Complaint) fi l e d a lawsuit against Plaintiff in state court, which issued a final order

Case: 16-15240 Date Filed: 08/24/2017 Page: 3 of 164 establi shing boundary lines “ that play a significant role in this litigation. ” 1 However, Plaintiff does not describe these boundary lines (or any other geographic demarcations) nor does it identify any deed, title, lease, agreement, court order , or other instrument establishing its rights over the natural resources it purports to own. Nonetheless, Plaintiff asserts that “ [i]rrespective of the title to the surface land, Plaintiff possesses the ownership rights to mineral, coal, timber, and other natural re sources wrongfully taken by Defendants. ” Plaintiff brought Alabama state law claims for conversion, negligence, and civil conspiracy, as well as federal claims under the Lanham Act, RICO, and the Sherman Act. Defendant s moved to dismiss Plaintiff ’ s Seco nd Amended Complaint, and the district court granted Defendants ’ motion. The district court reasoned that “ what is really in dispute here is not whether Defendants have violated RICO, the Lanham Act, or the Sherman Act, ” but instead “ the crux of the dispu te between these parties is a legally straight forward (though perhaps factually complex) state law question: which side has a legal claim (or the superior legal
claim ) to the property interests at issue here. ” The district court proceeded to assess each of Plaintiff ’ s federal clai ms and concluded that Plaintiff had failed to state a plausible claim for relief under any of those federal laws . Thus, the district

1 Though not mentioned in the Complaint, this action appears to follow from a long line of state court litigation. As the district court explained, “ the property interests in dispute have intersected (or overlapped) with litigations that took place in Jef ferson County C ircuit Court (Bessemer Division) for approximately ten years between certain non

- parties to this action. ”

Case: 16-15240 Date Filed: 08/24/2017 Page: 4 of 165 court dismissed Plaintiff ’ s federal claims and declined to exercise supplemental jurisdiction o ver the remaining state law claims. Plaintiff now appeals that ruling.
II. DISCUSSION
A. Plaintiff ’ s Lanham Act Claims
Plaintiff first all eges a violation of the Lanham A ct under 15 U.S.C. § 1225(a). Plaintiff asserts that Defendants have falsely represented that the allegedly stolen re sources are owned by Defendants and that these statements deceived or confused prospective customers i n violation of the A ct

. Th e statutory provision at issue provides : (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fa ct, or false or misleading representation of fact, which

— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or appro val of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person ’ s goods, services, or commercial activities, Case: 16-15240 Date Filed: 08/24/2017 Page: 5 of 166 shall be liable in a civil action by any person who believes that he or she is or is li kely to be damaged by such act. 15 U.S.C. § 1125(a). “ Section 1125(a) thus creates two distinct bases of liability: false association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B). ” Lexmark Int ’ l, Inc. v. Static Control Components, Inc. , 134 S. Ct. 1377, 1384 (2014). Plaintiff ’ s Complaint does no t specify which type of Lanham A ct cl aim Plaintiff purports to bring. T his alone m ight doom Plaintiff ’ s attempt to plead Lanham A ct claims, but the claims fail under either theory anyway . As to false association, the A ct “ forbids unfair trade practices involving infringement of .

. . trademarks, even in the absence of federal tradema rk registration. ” Custom Mfg. & Eng ’ g, Inc. v. Midway Servs., Inc. , 508 F.3d 641, 647 (11th Cir. 2007) (alterations in original)

. Nonetheless , Plaintiff must still show that it “ had enforceable trademark rights in the mark or name. ” Id. To this end, all that Plaintiff pleads is: “ Black Diamond is an unregistered but registerable trademark used by Plaintiff in connection with its coal, coal reserves and/or goods and/or services regarding monetizing the coal reserves. The same goes for the timber at issue in this case. ” However, we are not bound to accept as true such “ a legal conclusion couched as a factual allegation ” and mere “ labels and conclusions

. . . will not do. ” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl.
C orp. v. Twombly , 550 U.S. 544, 555 (2007) ). Plaintiff ’ s pleading is not sufficient

Case: 16-15240 Date Filed: 08/24/2017 Page: 6 of 167 to establish that it had an enforceable trademark right in the Black Diamond name. And further, even if Plaintiff had adequately pled the existence of an enforceable
trade mark, Plaintiff ’ s Complaint is devoid of any allegations that Defendants made unauthorized use of it or that Defendant s “ had adopted a mark or name that was the same, or confusingly similar to its mark, such that consumers were likely to confuse the two. ” Suntree Techs., Inc. v. Ecosense Int ’ l, Inc. , 693 F.3d 1338, 1346 (11th Cir. 2012) (quotation marks omitted) ; see also Custom Mfg. , 508 F.3d at 647 ( “ [T]he touchstone of liability in a trademark infringement action is not simply whether there is unauthori zed use of a protected mark, but whether such use is likely to cause consumer confusion. ” ). As to false advertising, Plaintiff is correct that the Lanham Act also “ creates a federal remedy ‘ that goes beyond trademark protection , ’” ( namely, “ a cause of action for unfair competition through misleading advertising or labeling ” ) but Plaintiff has also failed to plead this type of claim. See POM Wonderful LLC v.
Coca

- Cola Co. , 134 S. Ct. 2228, 2234 (2014) (quoting Dastar Corp. v. Twentieth Century Fox Film Corp ., 539 U.S. 23, 29 (2003)). Most fundamentally, Plaintiff has not sufficiently ple d that Defendant s made “ any false designation of origin, false or misleading description of fact, or false or misleading representation of
fact ” nor any “ commercial advertising or promotion ” that “ misrepresents the nature, characteristics, qualities, or geographic origin ” of the coal and timber at

Case: 16-15240 Date Filed: 08/24/2017 Page: 7 of 168 issue in this case. 15 U.S.C. § 1125(a)(1) (emphasis added)

. Instead, Plaintiff simply asserts in general terms that “ De fendants have falsely represented (and continue to falsely represent) ” that “ the coal and timber reserves are owned by Defendants. ”
But beyond this conclusory assertion , the Complaint contains no factual support for the proposition that Defendants repr esentations are actually false . In other words, the Complaint contains no factual support for the allegation that the

resources at issue are actually owned by Plaintiff. The Complaint asserts that

“ [i]rrespective of title to the surface land, Plaintiff possesses the ownership rights to mineral, coal, timber, and other natural resources wrongfully taken by Defendants, ” but again this assertion is conclusory. There is no mention of any geographic areas, boundaries, tracts of land, deeds of ownership, mining lease agreements, specific instances of collection, or any other factual predicate for Plaintiff ’ s assertion that it owns the amorphous natural resources mentioned in the Complaint.

“ While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff ’ s obligation to provide the ‘ grounds ’ of his ‘ entitle[ment] to relief ’ requires more than labels and conclusions, and .

. . [f]actual allegations must be enough to raise a right to relief above the speculative level. ” Twombly , 550 U.S. at 555 (2007). As such, even assuming that Defendants

Case: 16-15240 Date Filed: 08/24/2017 Page: 8 of 169 are representing that they own the coal and timber that they are selling, there is no support for the allegation that these rep resentations are false

. And further, “ [t] o invoke the Lanham Act ’ s cause of action for false advertising, a plaintiff must plead (and ultimately prove) an injury to a commercial interest in sales or business reputation proximately caused by the defendant ’ s misrepresentations. ” Lexmark , 134 S. Ct. at 1395. Plaintiff alleges that “ Plaintiff has been damaged by Defendants ’ false statements ” and that “ Plaintiff will continue to be damaged by Defendant s ’ false statements ” but Plaintiff does not provide any factual support for how or why such an injury to a commercial interest
has or will occur. Certainly, the wrongful conversion of Plaintiff ’ s resources would damage Plaintiff, but that is a matter of state law. Plaintiff does not plead with sufficient factual specificity how allegedly false statements about the ownership of the resources would proximately cause Plaintiff “ an injury to a commercial interest in sales or business reputation. ” Id. Plaintiff has therefore fa iled to plead a cause of action for a violation of the Lanham Act , and the district court did not err by dismissing these claims

. B. Plaintiff ’ s RICO Claims Plaintiff next attempts to fit i t s claims into the statutory requirements of the Racketeer Influenced and Corrupt Organizations Act ( “ RICO ” ). The district court

Case: 16-15240 Date Filed: 08/24/2017 Page: 9 of 1610 did not err in concluding that Plaintiff failed to plead a cause of action under
RICO.

“ Essential to any successful RICO claim are the basic requirements of establishing a RICO enterpr ise and a ‘ pattern of racketeering activity. ’” Jackson v. BellSouth Telecomm s. , 372 F.3d 1250, 1264 (11th Cir. 2004). To successfully allege a pattern of racketeering activity, Plaintiff must charge that: (1) the defendants committed two or more predica te acts within a ten

- year time span; (2) the predicate acts were related to one another; and (3) the predicate acts demonstrated criminal conduct of a continuing nature. Id. (emphasis omitted). Here, Plaintiff “ relied on, inter alia, 18 U.S.C. § 2314 to establish two predicate act violations. ” 2 In pertinent part, § 2314 creates criminal penalties for any person who “ transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by
fraud. ” 18 U.S.C. § 2314. Plaintiff asserts that Defendants violated this provision

2 Plaintiff ’ s Second Amended Complaint actually cites four different predicate acts that Defendant s allegedly violated, but Plainti ff ’ s Brief contains argument only as to § 2314. Plaintiff mentions facts relevant to the predicate acts of mail or wire frau d in f ootnote two of its brief, but this passing reference is not sufficient to “ plainly and prominently ” raise the issue on appeal

. Access Now, Inc. v. Sw. Airlines Co. , 385 F.3d 1324, 1330 (11th Cir. 2004) (quoting United States v. Jernigan, 341 F.3d 1273 (11th Cir. 2003)); see also Asociacion de Empleados del Area Canalera (ASEDAC) v. Panama Canal Comm ’ n , 453 F.3d 1309, 1316 n.7 (11th Cir. 2006) (holding that an “ argument is waived because it appears only in a footnote in their initial brief and is unaccompanied by any argument ” ); Tallahassee Mem ’ l Reg ’ l Med. Ctr. v. Bowen, 815 F.2d 1435, 1446 n.16 (11th Cir. 1987) (stating a single footnote in the appellant ’ s initial brief was not sufficient to preserve the issue).

Case: 16-15240 Date Filed: 08/24/2017 Page: 10 of 1611 by transporting the allegedly stolen coal and timber across state lines . However,

“ in order t o survive a motion to dismiss, a plaintiff must allege facts sufficient to support each of the statutory elements ” of this crime. Republic of Panama v. BCCI Holdings (Luxembourg) S.A. , 119 F.3d 935, 949 (11th Cir. 1997). One such element of a § 2314 viol ation is “ proof of scienter, ” namely , that “ the defendant knew that property was converted or taken by fraud at the time of the transport. ” Id. (quoting United States v. Montminy , 936 F.2d 626, 627 (1st Cir. 1991)). As the district court correctly conclu ded, Plaintiff failed to plead that Defendants “ knew ” that the natural resources were stolen when they transported the resources across state lines. Plaintiff ’ s allegations in support of Defendant s ’ knowledge fall into two general categories. First is Plaintiff ’ s direct assertions that Defendants violated the statute. For example, Plaintiff asserts that “ Defendants, on multiple occasions closely tied in time, knowingly transported Plaintiff ’ s natural resources (e.g., coal, timber, minerals) that they w rongfully took from Plaintiff to different states and countries outside of Alabama by use of truck, river transportation and railroad transportation. ” However, such “ formulaic recitation [s] of the elements of a cause of action ” are not sufficient to state a claim for relief. Iqbal , 556 U.S. at 678. Second, Plaintiff point s to allegation s that it sent letters and notices to particular Defendants indicating that Plaintiff believed Defendant s w ere taking

Case: 16-15240 Date Filed: 08/24/2017 Page: 11 of 1612 Plaintiff ’ s natural resources. Plaintiff pleads : (1 ) Plaintiff sent two letters of ownership to Defendant Twin Pines claiming ownership of natural resources being taken by Twin Pines ; (2) Defendant Drummond sent two “ Blasting Notices ” to Plaintiff “ concerning ‘ Blasting ’ with respect to Plaintiff ’ s natural resources; ” (3) Defendant Dru m mond held a meeting with Plaintiff “ concerning Drummond ’ s interest acquiring ownership of Plaintiff ’ s natural resources ” where it “ was pointed out by Drummond that mining had already taken place with respect to natural

resourc es that Plaintiff claims ownership over; ” and (4) Plaintiff sent a follow up letter to Drummond one month after the meeting and, eight months later, another letter providing a proposed contract for the purchase of Plaintiff ’ s natural

resources. 3 Taken tog ether, these allegations show that Plaintiff believed that the natural resources were owned by Plaintiff, but they do not provide any support for
the contention that Defendant s believed (much less “ knew ” ) that the resources were wrongfully taken. As disc ussed with regard to the Lanham Act claims , the Complaint is devoid of any factual allegations supportin g the contention that the resources taken by the

3 Indeed, Plaintiff does not point to any letter or notice sent to Defendants Molpus, SWF, or Valley Creek. As to these Defendants, Plainti ff merely asserts: “ Defendants SWF and Valley Creek knew and had reason to know that Plaintiff had ownership title to the timber that they took and sold. ” But like the first category of allegations mentioned above, this is merely an assertion of the elem ents of the cause of action, and thus does not suffice to state a claim. Therefore, even if these allegations relating to letters and notices sent by Plaintiff were sufficient to state a claim for a predicate violation of § 2314, Plaintiff ’ s Complaint wou ld still not succeed in alleging RICO violations against Defendants Molpus, SWF, or Valley Creek.

Case: 16-15240 Date Filed: 08/24/2017 Page: 12 of 1613 Defendant s were actually owned by Plaintiff. The only support for this contention is Plaintiff ’ s bare assertion that it is true. But as the district court explained : [T]here is no way Plaintiff can demonstrate knowledge, or set up a reasonable expectation that discovery will lead to that knowledge, because more than one

- and

- a - half years after filin g this case, Plaintiff itself does not even know where its property purportedly ends and Defendant s ’ proper ty rights begin. Indeed the very core of this matter is to ask a court to make that determination

— not to settle a concrete contested claim, but to o btain an answer in the first instance. In other words, if Plaintiff does not even know for sure whether it actually owned the resources, then there is no way that Plaintiff can plead that Defendant s knew that these resources belonged to Plaintiff ( and wer e thus knowingly “ stolen, converted or taken by fraud ” ). 18 U.S.C. § 2314. The dispute as to whether the natural resources actually belong to Plaintiff or Defendant s might establish a state law property or conversion claim, but it cannot establish a fede ral RICO claim based upon predicate violations of § 2314. Therefore, the district court did not err in dismissing Plaintiff ’ s RICO claims. 4

4 Because we conclude that Plaintiff failed to sufficiently plead predicate violations of § 2314

— which is necessary to support Plaintiff ’ s RICO claims

— we need not reach whether Plaintiff also sufficiently plead the existence of a “ RICO enterprise ” or that the allegedly converted natural resources were transported across state lines. See Boyle v. United States , 556 U.S. 938, 950 (2009) (noting that RICO lia bility demands “ the creation of an ‘ enterprise ’

— a group with a common purpose and course of conduct

— and the actual commission of a pattern of predicate offenses ” ) ; 18 U.S.C. § 2314 (criminalizing the transportation, transmission, or transfer of goods

“ in i nterstate or foreign commerce ” ) . Though Plaintiff ’ s allegations as to these issues are also quite conclusory, we need not base our holding on these grounds.

Case: 16-15240 Date Filed: 08/24/2017 Page: 13 of 1614 C. Plaintiff ’ s Sherman Act Claims Finally, Plaintiff ’ s Second Amended Complaint asserts a violation of the Sherman Antitrust Act, 15 U.S.C. § § 2 and 3. The district court concluded that Plaintiff failed to state a claim under either § 2 or § 3, but on appeal, Plaintiff only challenges the district court ’ s h olding as to § 3. Plaintiff ’ s argument is clearly
meritless because Plaintiff claims that a restraint of trade occurred in Alabama, not in a “ Territory of the United States

. ” 15 U.S.C. § 3 provides: Every contract, combination in form of trust or otherwi se, or conspiracy, in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such Territory and another, or between any such Territory or Territories and any Sta te or States or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, is declared illegal. 15 U.S.C. § 3 (emphasis added) . Plaintiff asserts that since the term “ territory ” is defined in Black ’ s Law Dictionary as “ [a] geographical area included within a particular government ’ s jurisdiction, ” see TERRITORY, Black ’ s Law Dictionary (10th ed. 2014), Alabama should therefore be considered a “ Territory of the United States. ”
Bu t “ Territory of the United States ” is a term of art that does not include Alabama or any other state of the United States

. See United States v. Maldonado

Burgos , 844 F.3d 339, 342 (1st Cir. 2016) ( “ The Sherman Act treats territories

Case: 16-15240 Date Filed: 08/24/2017 Page: 14 of 1615 differently than state s ” ); See also People of Puerto Rico v. Shell Co. (P.R.) , 302 U.S. 253, 259 (1937) (holding that, prior to the adoption of the Puerto Rico Constitution, Puerto Rico was included within the term “ territory ” in § 3); Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N.A. , 649 F.2d 36, 37 (1st Cir. 1981) (holding that after “ the change in Puerto Rico ’ s status from

‘ territory ’ to ‘ Commonwealth, ’ section 3 no longer applies to Puerto Rico. ” ). This is further evidenced by the juxtaposition of a “ Territory or Territories ” with a

“ State or States ” within the statutory text. Alabama is not a “ Territory of the United States ” under 15 U.S.C. § 3, and thus Plaintiff cannot state a claim for relief under that section. 5

5 Again, Plaintiff has not challenged on appeal the district court ’ s conclusion that Plaintiff failed to state a claim under 15 U.S.C. § 2. Thus, Plaintiff has waived this issue. United States v. Duboc , 694 F.3d 1223, 1226 n.1 (11th Cir. 2012). And even if we were to consider the adequacy of Plaintiff ’ s pleadings as th ey relate to § 2, Plaintiff has failed to plead a violation of the Sherman Act under § 2. A violation of § 2 requires Plaintiff to “ prove (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize a nd (3) a dangerous probability of achieving monopoly power. ” Spectrum Sports, Inc. v. McQuillan , 506 U.S. 447, 456 (1993). “ [T]o adequately plead dangerous probability of achieving monopoly power, the plaintiff must alleged that the defendant is ‘ close t o achieving monopoly power ’ in the relevant product m arket. ” Duty Free Americas, Inc. v. Est é e Lauder Companies, Inc. , 797 F.3d 1248, 1263 (11th Cir. 2015) (quoting U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 968, 995 (11th Cir.1993)). Here, Plai ntiff provides no delineation of the relevant geographical or product market, and no factual allegations supporting that Defendant s are “ close to achieving monopoly power. ” Id. There is no mention of any Defendant or combination of Defendant s ’ market share, nor any other factual support for the allegation that Defendants had achieved or probably would achieve market power.

Case: 16-15240 Date Filed: 08/24/2017 Page: 15 of 1616 D. Plaintiff ’ s Request for a Declar atory Judgment
T he district court held that since Plaintiff failed to state a federal claim, the court had no independent jurisdiction over Plaintiff ’ s request for a declaratory judgment. See Stuart Weitzman, LLC v. Microcomputer Res., Inc. , 542 F.3d 859 , 861

– 62 (11th Cir. 2008). Because the district court did not err in dismissing
Plaintiff ’ s federal claims, the district court did not err in also concluding it lacked jurisdiction over Plaintiff ’ s request for a declaratory judgment.
III. CONCLUSION
We AFFIRM the district court ’ s dismissal of Plaintiff ’ s Second Amended Complaint for failure to state a claim. 6

6 Defendants Valley Creek, SWF and Drummond each also filed a motion for damages and costs against Plaintiff under Fed. R. App. P . 38. Rule 38 provides that “ [i]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appel lee. ” In this Circuit, “ Rule 38 sanctions have been imposed against appellants who raise clearly frivolous claims in the face of established law and clear facts. ” Farese v. Scherer , 342 F.3d 1223, 1232 (11th Cir. 2003) (quotations omitted). “ For purpose s of Rule 38, a claim is clearly frivolous if it is utterly devoid of merit. ” Parker v. Am. Traffic Sols., Inc. , 835 F.3d 1363, 1371 (11th Cir. 2016) (quotations omitted). While we conclude that the district court was correct to dismiss Plaintiff ’ s Secon d Amended Complaint, we do not find Plaintiff ’ s appeal to be

“ utterly devoid of merit ” and therefore DENY the various Defendants ’ Rule 38 motions.

Case: 16-15240 Date Filed: 08/24/2017 Page: 16 of 16