Filed: Sep. 03, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-11799 Date Filed: 09/03/2015 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-11799 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-00115-WS-C DEREK QUINN, Plaintiff-Appellant, versus DEUTSCHE BANK NATIONAL TRUST COMPANY, SAXON MORTGAGE SERVICES, INC., OCWEN LOAN SERVICES, LLC, Defendants-Appellees, NOVASTAR MORTGAGE FUNDING TRUST, Defendant. _ Appeal from the United States District Court for the Southern District of Alabama _ (Septem
Summary: Case: 14-11799 Date Filed: 09/03/2015 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-11799 Non-Argument Calendar _ D.C. Docket No. 1:13-cv-00115-WS-C DEREK QUINN, Plaintiff-Appellant, versus DEUTSCHE BANK NATIONAL TRUST COMPANY, SAXON MORTGAGE SERVICES, INC., OCWEN LOAN SERVICES, LLC, Defendants-Appellees, NOVASTAR MORTGAGE FUNDING TRUST, Defendant. _ Appeal from the United States District Court for the Southern District of Alabama _ (Septemb..
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Case: 14-11799 Date Filed: 09/03/2015 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11799
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-00115-WS-C
DEREK QUINN,
Plaintiff-Appellant,
versus
DEUTSCHE BANK NATIONAL TRUST COMPANY,
SAXON MORTGAGE SERVICES, INC.,
OCWEN LOAN SERVICES, LLC,
Defendants-Appellees,
NOVASTAR MORTGAGE FUNDING TRUST,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(September 3, 2015)
Case: 14-11799 Date Filed: 09/03/2015 Page: 2 of 7
Before MARCUS, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Derek Quinn appeals pro se from the district court’s grant of summary
judgment to the defendants -- Deutsche Bank National Trust (“Deutsche Bank”),
Saxon Mortgage Services (“Saxon”), and Ocwen Loan Services, Inc. (“Ocwen”) --
in his civil suit alleging violations of the Fair Debt Collection Practices Act
(“FDCPA”) 15 U.S.C. § 1692 et seq., and various state law claims. On appeal,
Quinn argues that: (1) the magistrate judge erred by “forc[ing him] to represent
himself” after his attorney withdrew from representation; (2) the court violated his
due process rights by not allowing him adequate time to respond to the motions for
summary judgment when it denied his motion for an extension of time to file a
response; and (3) the district court abused its discretion by denying his motion to
amend his complaint because his attorney improperly pled the initial complaint and
the defendants would not have been prejudiced by allowing him to amend the
complaint. After thorough review, we affirm.
Generally, we review for abuse of discretion a district court’s decision not to
appoint counsel for a civil litigant, a district court’s denial of a motion for an
extension of time to file a response to a motion for summary judgment, and a
district court’s denial of leave to amend the complaint. Smith v. Sch. Bd. of
Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007); Young v. City of Palm Bay,
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Fla., 358 F.3d 859, 863 (11th Cir. 2004); Covenant Christian Ministries, Inc. v.
City of Marietta, Ga.,
654 F.3d 1231, 1239 (11th Cir. 2011). However, “where a
party fails to timely challenge a magistrate’s nondispositive order before the
district court,” the party waives his right to challenge those orders on appeal.
Smith, 487 F.3d at 1365; see also Fed.R.Civ.P. 72(a) (providing that a party must
object to a magistrate judge’s nondispositive order within 14 days of being served
with the order). Under the abuse-of-discretion standard, a district court may
choose from “a range of options” and will not be reversed unless it commits “a
clear error in judgment.”
Young, 358 F.3d at 863. A district court does not abuse
its discretion by refusing to accept an untimely filing; “[d]eadlines are not meant to
be aspirational.”
Id. at 864.
First, we reject Quinn’s claim that the district court abused its discretion by
refusing to appoint counsel for Quinn. It is well established that “[a] plaintiff in a
civil case has no constitutional right to counsel,” Bass v. Perrin, 170 F.3d 1312,
1320 (11th Cir. 1999), although a court may appoint counsel for an indigent
plaintiff, see 28 U.S.C. § 1915(e)(1);
Bass, 170 F.3d at 1320.
The record in this case reveals that Quinn never objected to the magistrate
judge’s order allowing his attorney to withdraw and ordering Quinn to proceed pro
se until he retained new counsel. He has, therefore, waived any argument that the
magistrate judge’s decision on this matter was in error. See Smith, 487 F.3d at
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1365. But even if Quinn had objected to the order, we would nevertheless find no
abuse of discretion, since the magistrate judge made no clear error of judgment in
determining that Quinn, who had previously practiced law, was capable of
representing himself until he retained new counsel.
Next, we find no merit to Quinn’s claim that the district court violated his
due process rights by not allowing him adequate time to respond to the motions for
summary judgment when it denied his motion for an extension of time to file a
response. Southern District of Alabama Local Rule 7.2(b) provides that a party
must respond to a motion for summary judgment “[w]ithin [30] days, or as may be
otherwise ordered” by the court. S.D. Ala. Loc. R. 7.2(b). A court may, for good
cause, extend the time for responding to a motion where the party made a motion
for an extension of time after the deadline for responding has passed “if the party
failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).
Here, the deadline for responding to the motions for summary judgment set
by the district court, 28 days from the filing of the motions, was proper under
Local Rule 7.2(b). Although the rule ordinarily provides 30 days in which to
respond, the rule provides that the court may set a deadline of its choosing. S.D.
Ala. Loc. R. 7.2(b). Moreover, Quinn’s motion for an extension of time to respond
to the motions for summary judgment was filed nearly a week after the deadline
for responding had passed, and as the court found, Quinn’s motion was based on
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his demonstrably false claim that he did not know of the motions for summary
judgment. Because Quinn failed to show “excusable neglect” for his tardiness in
seeking the extension, the district court did not abuse its discretion in denying
Quinn’s untimely motion for an extension of time.
Finally, we are unpersuaded by Quinn’s claim that the district court abused
its discretion by denying his motion to amend his complaint. Unless otherwise
specified, a party may amend its pleading “only with the opposing party’s written
consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). A court “should freely give
leave when justice so requires.” Id. Nevertheless, the court may deny leave to
amend on numerous grounds, including prejudice to the defendant and undue
delay. Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep’t. of Educ. ex rel.
Univ. of S. Fla.,
342 F.3d 1281, 1287 (11th Cir. 2003).
A district court in a civil action shall issue a scheduling order in which it
must limit the time to amend the pleadings. Fed.R.Civ.P. 16(b)(3)(A). Once a
scheduling order is entered, a party must demonstrate good cause for seeking leave
to amend its complaint after the deadline. Fed.R.Civ.P. 16(b)(4); S. Grouts &
Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 (11th Cir. 2009). A lack of diligence
in pursuing a claim is sufficient to show a lack of good cause. S.
Grouts, 575 F.3d
at 1241. A plaintiff’s request to amend his complaint based on facts already
known to him before he filed suit indicates a lack of diligence in prosecuting the
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suit. Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998). District
courts have wide discretion in deciding whether to grant leave to amend after the
filing of responsive pleadings, and in the face of an imminent adverse ruling.
Lowe’s Home Ctrs., Inc. v. Olin Corp.,
313 F.3d 1307, 1314-15 (11th Cir. 2002)
(motion for leave to amend filed after adverse summary judgment motion).
As the record shows, Quinn did not move to amend his complaint until over
seven months after the deadline to file amended pleadings under the scheduling
order had passed. In an attempt to show good cause for seeking to amend his
complaint after the deadline, he argued that his attorney did not properly plead the
case and that he desired to plead claims that conformed with the facts of the case.
Yet as the court held, Quinn was bound by the actions of his freely-chosen counsel.
See Barger v. City of Cartersville, Ga., 348 F.3d 1289, 1295 (11th Cir. 2003)
(holding that the plaintiff could not “avoid the consequences of the acts or
omissions of [her] freely selected [attorney]”). Moreover, Quinn sought to amend
his complaint based on facts already known to him before he filed suit -- indicating
his lack of diligence in prosecuting the case. Finally, when Quinn filed his motion,
the defendants’ motions for summary judgment were fully briefed. Thus, the
district court properly held that allowing amendment of the complaint would cause
undue prejudice to the defendants and excessive delay of the litigation. For these
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reasons, the district court did not abuse its discretion in denying the motion to
amend.
AFFIRMED.
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