Grace Solis v. CitiMortgage, Inc., et al

Filing

Opinion issued by court as to Appellant Grace Solis. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-14862

Date Filed: 07/07/2017

Page: 1 of 14

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14862
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-20612-UU
GRACE SOLIS,
Plaintiff-Appellant,
versus

CITIMORTGAGE, INC.,
ROBERTSON, ANSCHUTZ & SCHNEID, P.L.,
AMY SUMACEWSKI,
ZACHARY W. SMITH,
BETZY FALGAS, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 7, 2017)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

Case: 16-14862

Date Filed: 07/07/2017

Page: 2 of 14

Grace Solis, a pro se litigant, appeals the district court’s dismissal of her
consumer protection complaint. On appeal, CitiMortgage, Inc. (“CITI”) argues
that we lack jurisdiction over the appeal. Solis argues that we have jurisdiction,
and that the district court abused its discretion by dismissing the complaint,
effectively with prejudice, without finding both delay or willful contempt and
lesser sanctions to be inadequate. After careful review, we vacate and remand.
I.
For starters, we are unpersuaded by CITI’s claim that we lack jurisdiction
over Solis’s appeal. “To be appealable, an order must either be final or fall into a
specific class of interlocutory orders that are made appealable by statute or
jurisprudential exception.” CSX Transp., Inc. v. City of Garden City, 235 F.3d
1325, 1327 (11th Cir. 2000); 28 U.S.C. §§ 1291, 1292. A final order is one that
“ends the litigation on the merits and leaves nothing for the court to do but execute
the judgment.” Id. (quotation omitted). An order disposing of fewer than all the
claims of all the parties is not final and appealable unless the district court certifies
the order for immediate review under Federal Rule of Civil Procedure 54(b).
Supreme Fuels Trading FZE v. Sargeant, 689 F.3d 1244, 1246 (11th Cir. 2012).
Similarly, an order contemplating further substantive proceedings in a case is not
final and appealable. Broussard v. Lippman, 643 F.2d 1131, 1133 (5th Cir. 1981).1

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
2

Case: 16-14862

Date Filed: 07/07/2017

Page: 3 of 14

Generally, an involuntary dismissal of a complaint without prejudice is a
final, appealable order. Justice v. United States, 6 F.3d 1474, 1481 (11th Cir.
1993); Davis Forestry Corp. v. Smith, 707 F.2d 1325, 1326 n.1 (11th Cir. 1983).
Thus, a dismissal without prejudice that closes the case without granting the
plaintiff leave to amend or re-file is a final order. Samco Glob. Arms, Inc. v. Arita,
395 F.3d 1212, 1213 n.2 (11th Cir. 2005). However, a dismissal without prejudice
that contemplates an opportunity to re-file the dismissed claims is not final for
purposes of appeal. Grayson v. K Mart Corp., 79 F.3d 1086, 1094-95 & n.7 (11th
Cir. 1996). A plaintiff does not have a right to amend as a matter of course after
the dismissal of the complaint, and the dismissal itself automatically terminates the
action when the court holds either that no amendment is possible or that the
dismissal of the complaint also constitutes a dismissal of the action. Czeremcha v.
Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO, 724 F.2d 1552, 155455 & n.4 (11th Cir. 1984) (explaining that this approach is consistent with Fed. R.
Civ. P. 15’s “liberal mandate that leave to amend be freely given when justice so
requires, without granting the plaintiff carte blanche power to reopen a case at will
by filing an amendment” (quotation omitted)).
Administratively closing a case is not the same as dismissing a case and is
not dispositive of finality. Martinez v. Carnival Corp., 744 F.3d 1240, 1244 (11th

adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
3

Case: 16-14862

Date Filed: 07/07/2017

Page: 4 of 14

Cir. 2014). In Martinez, we analyzed the finality of a district court order granting a
defendant’s motion to compel arbitration and administratively closing a case by
“look[ing] to the practical effect” of the order, “not to its form.” Id. We decided
the order was final and appealable because the district court “effectively and
functionally . . . issued a decision that end[ed] the litigation on the merits,” and was
left only with executing the judgment. Id. at 1244-45 (quotation omitted).
A notice of appeal must designate the judgment, order, or part thereof that
the appellant wishes to appeal. Fed. R. App. P. 3(c)(1)(B). Ordinarily, failing to
abide by this requirement will preclude us from reviewing an unspecified judgment
or order. McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986). However,
courts liberally construe the requirements of Rule 3, and “it is well settled that an
appeal is not lost if a mistake is made in designating the judgment appealed from
where it is clear that the overriding intent was effectively to appeal.” Id. (quotation
omitted); see also Fed. R. App. P. 3(c)(4) (providing that an appeal “must not be
dismissed for informality of form or title of the notice of appeal”). A document
may be construed as a notice of appeal so long as the document is the “functional
equivalent” of a notice of appeal and clearly evinces the party’s intent to seek
appellate review. Rinaldo v. Corbett, 256 F.3d 1276, 1278-80 (11th Cir. 2001).
Accordingly, a party’s pro se appellate brief, filed within the time to appeal, may

4

Case: 16-14862

Date Filed: 07/07/2017

Page: 5 of 14

be construed as an effective notice of appeal. Smith v. Barry, 502 U.S. 244, 24649 (1992); Finch v. City of Vernon, 845 F.2d 256, 259 (11th Cir. 1988).
The timely filing of a notice of appeal is a jurisdictional requirement in a
civil case, and we cannot entertain an out-of-time appeal. Green v. DEA, 606 F.3d
1296, 1300-02 (11th Cir. 2010). To be timely, a notice of appeal must be filed no
later than 30 days after the challenged judgment or order is entered. Fed. R. App.
P. 4(a)(1)(A); see also Fed. R. App. P. 26(a)(1)(C) (excluding the last day of a
period from time computations if that day is a Saturday, Sunday, or legal holiday).
Every judgment must be set out in a separate document, except for orders
disposing of certain motions, including motions to alter or amend a judgment or for
relief from a judgment. Fed. R. Civ. P. 58(a). When a separate document is
required by Rule 58, the judgment or order is “entered” for purposes of Rule 4(a)
either when the judgment or order is set forth on a separate document or when 150
days have run from the entry of the judgment or order on the docket, whichever
occurs first. Fed. R. App. P. 4(a)(7)(A)(ii); Fed. R. Civ. P. 58(c)(2), 79(a).
We have jurisdiction over this appeal. As the record shows, the action in the
district court became final and appealable on March 21, 2016, when the district
court entered its order dismissing Solis’s first amended complaint without
prejudice and administratively closed the case (“March 21 order”). See Justice, 6
F.3d at 1481. Unlike the district court’s prior order dismissing Solis’s initial
5

Case: 16-14862

Date Filed: 07/07/2017

Page: 6 of 14

complaint without prejudice and granting her leave to re-file, the March 21 order
did not explicitly grant her leave to re-file her claims or further amend her
complaint. In fact, the court expressly said that permitting the action to go forward
would be “a waste of judicial resources.” Because the district court made clear by
closing the case that no further amendment of the complaint would be permitted,
and that its dismissal of the complaint also constituted a dismissal of the action, the
March 21 order is final for purposes of appeal. See Samco Glob. Arms, 395 F.3d
at 1213 n.2; Czeremcha, 724 F.2d at 1554-55 & n.4.
As for the fact that the district court administratively closed the case, rather
than explicitly dismissing the case, that action does not render the March 21 order
non-final. Rather, by disposing of all of Solis’s claims without contemplation of
further substantive proceedings in the case, the order left the court with nothing
further to do but execute its judgment, thereby effectively ending the litigation on
the merits. See Martinez, 744 F.3d at 1244-45.
In addition, because the district court failed to enter judgment as a separate
order as required by Fed. R. Civ. P. 58(a), both Solis’s July 6, 2016, notice of
appeal and her appellate brief timely appealed the dismissal. For purposes of Rule
4(a), the judgment was entered 150 days after the entry of the March 21 order: on
August 18, 2016. See Fed. R. App. P. 4(a)(7)(A)(ii); Fed. R. Civ. P. 58(c)(2),

6

Case: 16-14862

Date Filed: 07/07/2017

Page: 7 of 14

79(a). Solis then had 30 days, until September 19, 2016, to file a timely notice of
appeal. See Fed. R. App. P. 4(a)(1)(A); see also Fed. R. App. P. 26(a)(1)(C).
While Solis’s notice of appeal did not designate the March 21 order for
appeal, an appellate brief may be construed as a notice of appeal when it both
contains the functional equivalent of what Fed. R. App. P. 3(c) requires and clearly
evinces an intent to appeal. See Smith, 502 U.S. at 246-49; Rinaldo, 256 F.3d at
1278-80. Solis’s appellate brief satisfies both these criteria. Additionally, no party
would be disadvantaged by construing Solis’s appellate brief as a notice of appeal,
because CITI was given the opportunity to, and in fact did, respond to Solis’s
arguments challenging the March 21 order in its appellate brief. Accordingly, we
have jurisdiction to review the March 21 order.
II.
We also agree that the district court abused its discretion by dismissing
Solis’s complaint, effectively with prejudice, without making the necessary
findings. Inherent in a district court’s authority to enforce its own orders and
promptly dispose of the cases on its docket is the court’s power to dismiss a
plaintiff’s complaint. Magluta v. Samples, 162 F.3d 662, 664 (11th Cir. 1998).
So, for example, the court may dismiss an action sua sponte under Fed. R. Civ. P.
41(b) for failure to prosecute. Lopez v. Arkansas Cty. Indep. Sch. Dist., 570 F.2d
541, 544 (5th Cir. 1978). “Although the rule is phrased in terms of dismissal on
7

Case: 16-14862

Date Filed: 07/07/2017

Page: 8 of 14

the motion of the defendant, it is clear that the power is inherent in the court and
may be exercised sua sponte whenever necessary to achieve the orderly and
expeditious disposition of cases.” Id. (quotation omitted); see Fed. R. Civ. P. 41(b)
(allowing dismissal for failure to comply with the federal rules or a court order).
We review dismissals like these for abuse of discretion. Lopez, 570 F.2d at 544.
Where a dismissal has the effect of precluding an appellant from refiling her
claim because the statute of limitations has run, the dismissal is “tantamount to a
dismissal with prejudice.” Justice, 6 F.3d at 1482 n.15 (quotation omitted); see
also Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981) (observing that when “the
statute of limitations prevents or arguably may prevent a party from refiling,” a
dismissal without prejudice is no “less severe a sanction than a dismissal with
prejudice” (quotation omitted)). In that situation, the standard of review is also
abuse of discretion. See Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983);
Boazman v. Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir. 1976). Nevertheless,
dismissal with prejudice is a sanction of last resort and is to be applied only in
extreme circumstances. Jones, 709 F.2d at 1458. We’ve called it a “drastic
sanction” a district court should use only when “(1) a party engages in a clear
pattern of delay or willful contempt (contumacious conduct); and (2) the district
court specifically finds that lesser sanctions would not suffice.” World Thrust
Films, Inc. v. Int’l Family Entm’t, Inc., 41 F.3d 1454, 1456 (11th Cir. 1995).
8

Case: 16-14862

Date Filed: 07/07/2017

Page: 9 of 14

We’ve “occasionally inferred” that a district court implicitly found that
lesser sanctions would not suffice, but we’ve “never suggested that the district
court need not make that finding.” Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir.
1993) (quotation omitted). Rather, we “rigidly require the district courts to make
these findings.” Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1339
(11th Cir. 2005). Moreover, while a court does not have license to act as de facto
counsel to a party or to rewrite a deficient pleading, courts liberally construe
pleadings drafted by pro se litigants. Campbell v. Air Jam., Ltd., 760 F.3d 1165,
1168-69 (11th Cir. 2014).
Among other things, the Telephone Consumer Protection Act (“TCPA”)
makes it unlawful to call a cellular telephone number using an automatic telephone
dialing system without prior consent if the called party is charged for the call. 47
U.S.C. § 227(b)(1)(A)(iii). The TCPA has a four-year statute of limitations that
begins when the cause of action accrues. 28 U.S.C. § 1658(a). Under the Fair
Credit Reporting Act (“FCRA”), people who furnish information to credit
reporting agencies have an obligation to investigate disputes and report the results
of those investigations to the credit reporting agency. 15 U.S.C. § 1681s-2(b). A
FCRA action is timely if it is filed within two years after the date the plaintiff
discovered the violation or five years after the date on which the violation

9

Case: 16-14862

Date Filed: 07/07/2017

Page: 10 of 14

occurred, whichever is earlier. See 15 U.S.C. § 1681p; Clay v. Equifax, Inc., 762
F.2d 952, 958 (11th Cir. 1985).
The Florida Consumer Collection Practices Act (“FCCPA”) prohibits, inter
alia, contacting a debtor directly when that person is represented by an attorney
regarding the debt. Fla. Stat. § 559.72(18). The FCCPA also prohibits attempting
to enforce a debt when the debt is known to be illegitimate, id. § 559.72(9), and
disclosing information affecting the debtor’s reputation to a third party other than
the debtor’s family if the third party does not have a legitimate business need or if
the information is false, id. § 559.72(5). A FCCPA action must be filed within two
years after the date the alleged violation occurred. Id. § 559.77(4).
Statutes of limitations exist to prevent the passage of time from interfering
with the just determination of fact, to eliminate stale claims, and to provide
certainty regarding a defendant’s liabilities. See Witt v. Metro. Life Ins. Co., 772
F.3d 1269, 1278 (11th Cir. 2014). As a result, courts will typically reject claims
asserted after a statute of limitations has run. See id.
We are constrained to conclude that the district court abused its discretion in
dismissing Solis’s complaint. To begin with, we interpret the district court’s
dismissal to have been with prejudice, since the relevant statutes of limitations
would bar Solis from pursuing many of her federal claims if she attempted to refile
them now in 2017. Boazman, 537 F.2d at 213. For example, Solis alleged in the
10

Case: 16-14862

Date Filed: 07/07/2017

Page: 11 of 14

first amended complaint that, beginning on or about November 1, 2011, she
received approximately 77 calls from an automatic dialer connected to CITI, and
that some of these calls occurred on or after March 7, 2012. She asserted these
calls violated the TCPA, which makes it unlawful to call a cellular phone using an
automatic telephone dialing system without prior consent. 47 U.S.C. § 227(b)(1).
Because the TCPA has a four-year statute of limitations, 28 U.S.C. § 1658(a),
Solis’s TCPA claims -- based on the March 2012 calls -- would be barred if she
attempted to refile them in 2017, even though the statute of limitations did not bar
them as filed in the first amended complaint.2 Similarly, her FCRA claims -- based
on her discovery on August 30, 2015 that CITI had failed to investigate her
disputes with statements CITI made to various credit reporting agencies as early as
August 2011, 15 U.S.C.§1681s-2(b) -- would also be time-barred if she attempted
to refile them in 2017. See 15 U.S.C. § 1681p (providing the FCRA’s statute of
limitations as the earlier of either two years from when a party discovered the
violation or five years after the violation occurred). As would many of her FCCPA
claims -- based on dozens of monthly debt collection statements that CITI sent her
beginning in January 2014 despite knowing that she was represented by an
attorney. See Fla. Stat. §§ 559.72(18), 559.77(4) (providing a two-year statute of

2

On the other hand, Solis’s claims based on calls prior to March 2012 appear to have been
untimely when they were filed in February 2016 and therefore remain barred by the statute of
limitations regardless of the outcome of this appeal. See Witt, 772 F.3d at 1278.
11

Case: 16-14862

Date Filed: 07/07/2017

limitations for these FCCPA claims).

Page: 12 of 14

In short, because the district court’s

dismissal of the first amended complaint would cause Solis to lose refiled TCPA
and other claims on statute of limitations grounds, we view the district court’s
dismissal of Solis’s complaint as being with prejudice. Boazman, 537 F.2d at 213.
We’ve readily recognized the district court’s authority to manage its own
docket and to dismiss complaints for a failure to abide by court orders. Magluta,
162 F.3d at 664; Lopez, 570 F.2d at 544. We also recognize that Solis did not fully
comply with the district court’s order to conform to the pleading requirements set
out in the Federal Rules of Civil Procedure and to identify the specific allegations
she was asserting against each defendant. Rather, as the district court found, her
first amended complaint with factual allegations grouped together separate from
her causes of action, “amount[ed] to a shotgun-style pleading.”
However, we’ve emphasized that the dismissal of a complaint with prejudice
is a sanction of last resort, Jones, 709 F.2d at 1458, and in this case, Solis plainly
attempted to comply with the district court’s order.

Solis’s first amended

complaint grouped her factual allegations by defendant instead of all together in
one mass batch, and, while she still incorporated those factual allegations by
reference into her causes of action, she cited only those allegations that dealt with
the defendants against whom she asserted the claim. In addition, after her first
amended complaint was dismissed, Solis moved for clarification and said she was
12

Case: 16-14862

Date Filed: 07/07/2017

Page: 13 of 14

“unable to decipher exactly what the court is requiring,” asked how the court
wanted the allegations separated, and noted she “desperately need[ed] the court’s
guidance.” When the district court denied her motion for clarification without
substantive comment, Solis filed her second amended complaint and again
attempted to comply with the court’s order to identify the specific allegations being
asserted against each defendant by dismissing all of the defendants except CITI.
With only one defendant, no doubt remained regarding which allegations were
being asserted against which defendant.
On this record, it does not appear that Solis engaged in a clear pattern of
delay or willful contempt as would be required to dismiss her first amended
complaint with prejudice. World Thrust Films, 41 F.3d at 1456. Nor, moreover,
did the district court find that Solis did so. And because Solis has demonstrated
that she can and will amend her pleadings to comply with the district court’s
requirements, it does not seem that the district court will need to act as de facto
counsel or rewrite her deficient pleading. Campbell, 760 F.3d at 1168-69.
Further, while the district court said after dismissing Solis’s first amended
complaint that allowing the case to go forward would be a “waste of judicial
resources,” it did not make an explicit finding that “lesser sanctions would not
suffice.” World Thrust Films, 41 F.3d at 1456. And the record seems to contradict
any finding to this effect, since Solis sought input from the district court on how to
13

Case: 16-14862

Date Filed: 07/07/2017

Page: 14 of 14

proceed and has attempted to comply with the district court’s orders.

Thus,

because the district court made no explicit findings of clear delay or willful
contempt and that lesser sanctions would not suffice, we conclude that the district
court abused its discretion in dismissing Solis’s first amended complaint and
remand the case for further proceedings.
VACATED AND REMANDED.

14