[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 10068 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cv - 00586

- WSD

ELAINE ARMSTEAD Plaintiff, SANDRA FINCH, Respondent

- Appellant,

versus ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant

- Appellee, WEBB, ZSCHUNKE, NEARY, & DIKEMAN, LLP, Defendant.

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

________________________ ( July 14, 2017 ) Case: 17-10068 Date Filed: 07/14/2017 Page: 1 of 82 Before ED CARNES , Chief Judge, JORDAN and ROSENBAUM , Circuit Judges.
PER CURIAM: Attorney Sandra Finch represented Elaine Armstead in Armstead’s lawsuit against Allstate Property & Casualty Insurance Company. I n the weeks leading up to trial, Finch, on Armstead’s behalf, filed a motion in limine to exclude or strike the deposition testimony of Allstate’s fact witness Mark Gould

. Allstate filed a response in opposition that, among other things, described what ha ppened during Gould’s deposition, which it supported by citing the deposition transcript and Gould’s affidavit. The transcript showed that during the depositio n Finch handed Gould page - by

- page photographs of a document ti tled “Ste a mati c Guide to Restoration Services ” ( an outdated company document ) and that when Gould asked Finch where she had found that document, Finch refused to answer. Gould in his affidavit stated that he “got very upset when it became apparent [that Finch]
had obtai ned the do cument from my office without my permission.” The photographs of the Steamatic Guide were not the only photographs Finch showed Gould during his deposition

. At one point she h anded Gould a photograph of the inside of his office, but refused t o explain where she had gotten the picture. Gould accused Finch of trespassing, at which point Finch responded , “I caution you on defaming me, because if you defame me, I can promise you it will not be good.”

Case: 17-10068 Date Filed: 07/14/2017 Page: 2 of 83 On July 1, 2016, the district court entered a n order den ying Armstead’s motion in limine and instruct ing Finch to “file, on or before July 5, 2016, a sworn affidavit stating, in detail, how and under what circumstances she obtained the photographs of Mr. Gould’s office and the Steamatic Guide in question.” Finch responded to that order on July 5 by filing objections based on lack of notice, due process, and relevance . On July 6 the district court entered an order overruling Finch’s objections and instructing her to file the affidavit “ on or before 5:00 p.m. EST today, July 6, 2017” because “the matters required to be addressed in the affidavit may impact the admission of evidence at trial.” Finch did not file the affidavit by that deadline. The next morning (July 7), the district cour t held a pretrial conference. Finch and Allstate’s counsel attended, and Finch explained that she was traveling by plane when the district court entered its July 6 order and was unable to file her response by the 5:00 deadline. Finch stated that she need ed additional time to respond to the court’s order and that she object ed to that order on due process grounds , explaining that “I really don’t understand what the complaint is or what it is that I’m responding to

. ” The district court clarified that Finch was to file an affidavit providing the source of the photographs because that information “may well impact the admissibility” of those documents at trial. The district court then told Finch that she would be permitted “a little more time today to provide the

Case: 17-10068 Date Filed: 07/14/2017 Page: 3 of 84 information.” At 5:07 that evening, after Finch had not filed the affidavit, the district court entered an order directing her to show cause why it should not hold her in contempt and impose sanctions for failing to follow its July 1 and July 6 orders

. On July 11, after the first day of trial had ended, the district court held a hearing on its show cause order and, at that hearing, Finch argued for the first time that she had not filed the affidavit based on her Fifth Amendment rig ht against self

- incr imination. The district court did not impose sanctions at that hearing and scheduled a second sanctions hearing to give Finch time to retain counsel to represent her in the matter. At th e second sanctions hearing Finch , through her attorney, r eiterated t hat she had not filed the affidavit based on her Fifth Amendment right. A few days after that second hearing, the district court entered an order finding that Finch had acted in bad faith by refusing to comply with its July 1 and July 6 orders

. It decided to exercise its inherent power to sanction Finch by ordering her to pay Allstate’s attorney ’s fees incurred by its participation in and preparation for both the pretrial conference (nearly all of which was spent discussing Finch’s failure to comply with the July 1 and July 6 orders) and the first sanctions hearing. The court ordered Allstate to submit to it the amount of attorney’s fees it had incurred in connection with those two hearings . Allstate

Case: 17-10068 Date Filed: 07/14/2017 Page: 4 of 85 submitted the calculation of its attorney’s fees , and the district court entered an order directing Finch to pay Allstate $1,548 in attorney’s fees. This is Finch’s appeal of the district court’s orders imposing sanctions based on her non

compliance with its July 1 and July 6 orders. We review for an abuse of discretion the district court’s imposition of sanctions under its inherent power. See Sciarretta v. Lincoln Na t’l Life Ins. Co. , 778 F.3d 1205, 1212 (11th Cir. 2015). A district court abuses its discretion when it “applies an incorrect legal st andard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous,” or when it “misconstrues its proper role, or ignores or misunderstands the relevan t evidence.” Id. (quotation marks omitted) (alterations omitted ). “Courts have the inherent power to police themselves and those appearing before them,” and “[t]he key to unlocking that inherent power is a finding of bad faith.” Id. “Once unlocked, the power carries with it the authority to assess attorney’s fees as a sanction for bad faith conduct.” Id. Finch first contends that because she had a good faith basis for asserting her Fifth Amendment right, the district court erred in finding that she acted in bad faith by refusing to comply with its July 1 and July 6 orders. Although Finch raised objections to those orders, she did not assert her Fifth Amendment privilege at th at

Case: 17-10068 Date Filed: 07/14/2017 Page: 5 of 86 time. She instead brought up her Fifth Amendment right at the sanction s hearings

as a n after

- the

- fact reason for not filing the affidavit.
If Finch wished to assert her Fifth Amendment right as a basis for not complying with the July 1 and July 6 orders, she should have claimed her Fifth Amendment privilege at the time she was instructed to file the affidavit. See Minnesota v. Murphy , 465 U.S. 420, 434, 104 S. Ct. 1136, 1146 (1984) (noting “[t]he general rule that the [Fifth Amendment] privilege must be claimed when self

- incrimination is threatened”). Instead, Finch ob jected to the July 1 and July 6 order s on other grounds (which the district court overruled) and then sat silently while the July 7 deadline passed. The district court’s decision to sanction Finch did not, as she contends, “effectively penaliz[e] [her] fo r the exercise of her Fifth Amendment privilege.” It was instead based on her failure to either comply with or timely raise a valid objection to complying with the July 1 and July 6 or ders

. Finch also contends that the district court erred in finding that Finch’s failure to file the required affidavit constituted bad faith because the court failed to make specific findings of the conduct that warranted sanctions

. “We review a court’s finding of bad faith, and the subsidiary factual findings that go in to it, only for clear error.” Sciarretta , 778 F.3d at 1213. “Under clear error review, we will reverse only if after viewing all the evidence, we are left with the definite and firm conviction that a mistake has been committed.” Id. (quotation marks omitted).

Case: 17-10068 Date Filed: 07/14/2017 Page: 6 of 87 The district court’s order imposing sanctions found that Finch “acted in bad faith when she repeatedly and flagrantly disregarded [its] orders” without providing “adequate justification or explanation.” The district court made specific findings of bad faith and it did not cl early err in finding that Finch acted in bad faith by fail ing to either comply or timely justify not comply ing with its orders

. 1 Finally, Finch contends that the district court abused its discretion by impo sing sanctions because it failed to give her sufficient notice of its intent to sanction her and failed to provide a legal basis for imposing sanctions. See Chambers v. NASCO, Inc. , 501 U.S. 32, 50, 111 S. Ct. 2123, 2136 (1991) (“A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process .

. . .”). Before the first sanctions hearing, the district court ordered Finch to show cause why she should not be held in contempt and sanctioned for no t complying with its July 1 and July 6 orders. During the first sanctions hearing the district court made clear both the factual and legal basis for which it was considering imposing sanctions. At that hearing the

1 Finch also contends that the district court erroneously failed to take into account Allstate’s egregious conduct during discovery, which is what led to the “need to disprove Gould’s testimony without the benefit of full discovery” and her need to “get to the truth .

. . in a situation where [her client] was deprived of discovery.” Bu t Finch was not sanctioned for allegedly sneaking into Gould’s office. She was sanctioned for refusing to file an affidavit after the court more than once ordered her to do so. For that reason, Allstate’s conduct during discovery is not relevant to w hether Finch acted in bad faith by refusing to file the court ordered affidavit. Case: 17-10068 Date Filed: 07/14/2017 Page: 7 of 88 district court told Finch that she needed to show cause why she should not be sanctioned for specific conduct: In [the July 1 order] I required Ms. Finch to provide certain information about the acquisition of materials that were used during a deposition. The information that was required to be provided is set out on page 34 of the order,

. . . and the information was required to be provided in a sworn affidavit, stating in detail how and under what circumstances she obtained the photographs of Mr. Gould’s office and the Steamatic guide in question .

. . . She did not provide the information as originally required in the July 1, 2016 order, nor did she provide me information as she was told she was required in the Court’s subsequent order. And then, furth er, during the pretrial conference that we had just a couple of days ago, she told me that she intended to file a response to the order, and she has failed to do that. In an order scheduling the second sanctions hearing , the district court stated
that it was holding th at hearing “to determine whether the Court should exercise its inherent power, and, if it should, what sanctions are appropriate.” Finch’s

statement that “[t]he District court failed to notify [her] of a) the conduct that is subject to sanct ion; or b) the legal basis for said sanctions ” is false. AFFIRMED. Case: 17-10068 Date Filed: 07/14/2017 Page: 8 of 8