Filed: Jun. 14, 2010
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-11636 ELEVENTH CIRCUIT JUNE 14, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 07-02274-CV-T-17-EAJ ANDRZEJ MADURA, ANNA DOLINSKA-MADURA, Plaintiffs-Appellants, versus LAKEBRIDGE CONDOMINIUM ASSOCIATION INC., SENTRY MANAGEMENT INC., PORGES, HAMLIN, KNOWLES, PROUTY, THOMPSON & NAJMY, P.A., DON WESTERHOFF, Defendants-Appellees, TELESE MCKAY, et al., Defendants. _ Appea
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-11636 ELEVENTH CIRCUIT JUNE 14, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 07-02274-CV-T-17-EAJ ANDRZEJ MADURA, ANNA DOLINSKA-MADURA, Plaintiffs-Appellants, versus LAKEBRIDGE CONDOMINIUM ASSOCIATION INC., SENTRY MANAGEMENT INC., PORGES, HAMLIN, KNOWLES, PROUTY, THOMPSON & NAJMY, P.A., DON WESTERHOFF, Defendants-Appellees, TELESE MCKAY, et al., Defendants. _ Appeal..
More
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11636 ELEVENTH CIRCUIT
JUNE 14, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-02274-CV-T-17-EAJ
ANDRZEJ MADURA,
ANNA DOLINSKA-MADURA,
Plaintiffs-Appellants,
versus
LAKEBRIDGE CONDOMINIUM ASSOCIATION INC.,
SENTRY MANAGEMENT INC.,
PORGES, HAMLIN, KNOWLES, PROUTY,
THOMPSON & NAJMY, P.A.,
DON WESTERHOFF,
Defendants-Appellees,
TELESE MCKAY, et al.,
Defendants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(June 14, 2010)
Before EDMONDSON, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Andrzej Madura and Anna Dolinska-Madura,
Plaintiffs-Appellants, appeal pro se the district court’s orders: (1) granting
judgment on the pleadings for Defendants-Appellees Lakebridge Condominium
Association (“Lakebridge”) and Sentry Management Inc. (“Sentry”) on Plaintiffs’
Fair Debt Collection Practices Act (“FDCPA”) claims, 15 U.S.C. § § 1692a-p; (2)
dismissing Plaintiffs’ state law claims against Lakebridge and Sentry; (3)
dismissing Plaintiffs’ amended complaint against Porges, Hamlin, Knowles,
Prouty, Thompson & Najmy, P.A., a law firm representing Lakebridge (“Law
Firm”), for failure to prosecute; and (4) denying Plaintiffs’ motion for leave to
amend their amended complaint post-dismissal of the case.1 No reversible error
has been shown; we affirm.
Plaintiffs owned a condominium unit and, according to the records of
Lakebridge, Plaintiffs were in arrears on monies owed to Lakebridge. Beginning
in July 2007, Sentry, acting as property manager for Lakebridge, sent Plaintiffs a
1
Also named as a defendant was Don Westerhoff, president of Lakebridge and an owner
of a unit at Lakebridge Condominium. Plaintiffs’ brief proffers no argument about Westerhoff;
challenges to the district court’s orders as they pertain to Westerhoff are waived. See Horsley v.
Feld, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002). Plaintiffs also included in their amended
complaint a count charging Lakebridge with retaliation; because Plaintiffs’ brief fails to address
this issue, it is deemed to have been waived.
Id.
2
“Notice of Intent to File Lien.” The notice included a statement of assessments
owed to Lakebridge as of 13 July 2007. On 10 August 2007, Plaintiffs demanded
an explanation of the assessments and alleged a portion of the assessments already
had been paid. On 23 August 2007, Sentry sent a “Notice of Lien;” the notice
included a statement of assessments owed as of 23 August 2007. On 7 September
2007, Sentry filed a lien against Plaintiffs’ condominium. The statements sent to
Plaintiffs set out Lakebridge’s name, address and telephone number; they detailed
the date, description, assessment amount, interest amount and total amount due.
On 3 October 2007 and 8 October 2007, Law Firm, acting as Lakebridge’s
attorney, sent letters to Plaintiffs stating an intent to foreclose. The letters included
an amended claim of lien for past due assessments, costs, and fees.
The district court granted Lakebridge and Sentry judgment on the pleadings
-- with prejudice -- on Plaintiffs’ FDCPA claims: the district court concluded that
neither Lakebridge nor Sentry acted as a “debt collector” under FDCPA, 15 U.S.C.
§ 1692a(6). The remaining state law claims were dismissed without prejudice.
Because Plaintiffs failed to respond both to Law Firm’s motion to dismiss and
failed also to respond to a district court order to show cause why the court should
not grant Law Firm’s motion to dismiss or should not dismiss Plaintiffs’ case for
failure to prosecute, the district court dismissed Plaintiffs’ case.
3
Plaintiffs contend that the district court committed reversible error when it
considered a “Management Services Agreement” between Lakebridge and Sentry,
filed with the motion for judgment on the pleadings, to conclude that Sentry acted
as Lakebridge’s agent and was no debt collector under FDCPA. Plaintiffs argue
that the Management Services Agreement was disputed and that Fed.R.Civ.P.
12(d) required that the motion for judgment on the pleadings be converted into a
motion for summary judgment.
Judgment on the pleadings was granted appropriately in favor of Lakebridge.
Lakebridge was not subject to the FDCPA because it was no debt collector; it was
a creditor. See 15 U.S.C. § 1692a(6) defining “debt collector” as “any person who
...regularly collects ... debts owed ... or due another;” and 15 U.S.C. § 1692a(4)
defining “creditor” as “any person ... to whom a debt is owed.” But consideration
of the disputed Management Services Agreement to determine that Sentry also was
no debt collector for purposes of FDCPA constituted error: it violated Fed.R.Civ.P.
12(d)’s prescription that a motion for judgment on the pleadings that presents
matters outside the pleadings -- and are not excluded by the court -- be treated as a
motion for summary judgment under Rule 56. Nonetheless we conclude judgment
on the pleadings was granted appropriately in favor of Sentry: even ignoring
Sentry’s status under the Management Services Agreement, the pleadings make
4
clear that Sentry’s acts did not violate FDCPA. See Bircoll v. Miami-Dade
County, 480 F.3d 1072. 1088 n.21 (11th Cir. 2007) (we may affirm on any ground
supported by the record).
The purpose of FDCPA is “to eliminate abusive debt collection practices by
debt collectors.” 15 U.S.C. § 1692(e). Section 1692f provides that a “debt
collector may not use unfair or unconscionable means to collect or attempt to
collect any debt.” Under section 1692g, after a debt collector’s initial
communication with a consumer, if the consumer notifies the debt collector that
the debt is disputed, “the debt collector shall cease collection of the debt ... until
the debt collector obtains verification of the debt ... or the name and address of the
original creditor, and a copy of such verification ..., or the name and address of the
original creditor, is mailed to the consumer by the debt collector.” Id. at 1692g(b).
Sentry sent Plaintiffs verification of the debt with its Notice of Intent to File Lien;
and Sentry updated that verification in later correspondence. Again after Plaintiffs’
requested verification -- and contemporaneously with the filing of the lien -- Sentry
sent Plaintiffs a current statement in verification of the debt. See Schimek v.
Weissman, Nowack, Curry, & Wilco,
374 F.3d 1011, 1014 (11 th Cir. 2004) (if
permitted by state law, section 1692g(b) does not preclude debt collector from
contemporaneously filing lien and sending letter of demand to consumer). So,
5
even if Sentry was a debt collector under FDCPA, it complied with the verification
requirements; Sentry’s collection efforts complied with section 1692g(b).2
Plaintiffs complain that the district court erred when it dismissed their state
law claims without prejudice. According to Plaintiffs, the decision not to exercise
supplemental jurisdiction was an abuse of discretion because the statute of
limitations had expired on at least some of their state law claims.
A district court with original jurisdiction in a civil action has “supplemental
jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction.” 28 U.S.C. § 1367(a). But a district court may decline
to exercise supplemental jurisdiction if all claims over which it has original
jurisdiction are dismissed. Id. at § 1367(c)(3). We have concluded that a federal
court may abuse its discretion when pendent state claims are dismissed and no
viable state forum exists at the time of dismissal. Roper v. Edwards,
815 F.2d
1474, 1477 (11 th Cir. 1987).
The district court committed no abuse of discretion when it dismissed
Plaintiffs’ state law claims: Plaintiffs contend incorrectly that the statute of
2
We see no reversible error in the district court’s grant of judgment on the pleadings on
Plaintiffs’ conclusory allegations that Sentry’s communications violated several other sections of
the FDCPA because they allegedly contained falsities, were misleading or otherwise were
threatening. Just indicating that a matter may be referred to an attorney and a lien filed if
payment is not made is not a deceptive practice, see Schimek, 374 F.3d at 1013; nor was it
threatening to advise that Lakebridge had the ability to collect reasonable attorney’s fees
incurred in the course of filing a lien.
6
limitations had expired at the time of dismissal. Under Florida law, Plaintiffs had
four years to commence suit for slander of title and intentional infliction of
emotional distress, see Fla. Stat. § 95.11(3)(o); Plaintiffs had two years from the
alleged violation to file suit under the Florida Consumer Collection Practices Act
(“FCCPA”). See Fla. Stat. §559.77(4). At the time of dismissal, Plaintiffs had
approximately four months to file FCCPA claims and over two years to file the
other state law claims.
Nor did the district court abuse its discretion when it dismissed Plaintiffs’
case against Law Firm for want of prosecution. Plaintiffs failed to respond to the
district court’s order to show cause.3 “The court may dismiss a claim if the
plaintiff fails to prosecute it or comply with a court order.” Equity Lifestyle Prop.
Inc. v Fla. Mowing & Landscape, 556 F.3d 1232, 1240 (11 th Cir. 2009).
In their last assertion of error, Plaintiffs contend that the district court abused
its discretion when it denied Plaintiffs’ motion to amend their amended complaint.
Plaintiffs’ motion to amend their amended complaint was filed 22 days after final
judgment. After judgment, the plaintiff who seeks leave to amend must do so
3
Plaintiffs explain their failure to respond to Law Firm’s motion to dismiss by asserting
that they never received the motion. But Plaintiffs also failed to respond to the district court’s
order to show cause; they never alleged non-receipt of that order.
7
within 10 days of the entry of judgment by seeking relief under Rule 59(e)4
(motion to alter or amend a judgment) or Rule 60(b)(6) (motion for relief from a
judgment).5 Because Plaintiffs failed to act within 10 days of judgment, no relief
was available under Rule 59(e); and because Plaintiffs failed to seek relief from
final judgment, Rule 60(b) has no application.
We have considered all errors advanced by Plaintiffs; no basis for reversal
has been shown.
AFFIRMED.
4
Fed.R.Civ.P. 59(e) has been amended, effective 1 December 2009, to expand the 10-day
period to 28 days.
5
Fed.R.Civ.P. 15(a) -- cited by Plaintiffs -- has no application after dismissal of a
complaint and the entry of final judgment for defendant. See Freidman v. Market Street
Mortgage Corp., 520 F.3d 1289, 1293 n.4 (11th Cir. 2008).
8
