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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15663
Non-Argument Calendar
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D.C. Docket No. 8:17-cv-00075-MSS-AAS
PATRICK RYAN BRAY,
Plaintiff - Appellant,
versus
BANK OF AMERICA, N.A.,
Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 22, 2019)
Before JILL PRYOR, ANDERSON and EDMONDSON, Circuit Judges.
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PER CURIAM:
Patrick Bray, proceeding pro se, 1 appeals the district court’s dismissal of his
amended complaint against Bank of America, N.A. (“Bank of America”). The
district court determined that Bray’s claim for violation of the Bank Holding
Company Act (“BHCA”),
12 U.S.C. § 1972, was untimely filed and that equitable
tolling was unwarranted. 2 No reversible error has been shown; we affirm.
Bray worked as an independent financial advisor for InteliSpend Prepaid
Solutions (“InteliSpend”) between 2004 and 2011. Bank of America was the lead
lender for a syndicated line of credit extended to InteliSpend’s parent company,
Maritz Holdings, Inc. (“Maritz”). In late 2009, Maritz sought to acquire
outstanding minority shares in InteliSpend. Bray claims that Bank of America
forced Maritz to move some of the monies held by InteliSpend (and managed by
Bray) to Bank of America’s subsidiary (Merrill Lynch) as collateral for the new
loan. Bray alleges that Bank of America’s demand amounted to a “tying
arrangement” in violation of the BHCA. Bray says he was also forced to begin
working for Merrill Lynch in March 2010 so he could continue to manage
1
We construe liberally pro se pleadings. Tannenbaum v. United States,
148 F.3d 1262, 1263
(11th Cir. 1998).
2
The district court also concluded that Bray’s claim for slander was both untimely filed and
barred by res judicata. On appeal, Bray raises no challenge to the district court’s dismissal of his
slander claim.
2
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InteliSpend’s accounts. But for the illegal tying arrangement, Bray says he would
have retained InteliSpend as a client.
Bray filed this civil action against Bank of America in December 2016. On
appeal, Bray concedes that his complaint was filed outside the four-year statute of
limitations applicable to claims filed under the BHCA. Bray argues, however, that
the limitations period should have been equitably tolled.
We review de novo the legal question of whether equitable tolling is
warranted. Justice v. United States,
6 F.3d 1474, 1478 (11th Cir. 1993). We
review the district court’s findings of fact for clear error.
Id.
Equitable tolling “is an extraordinary remedy which should be extended only
sparingly.”
Id. at 1479. Equitable tolling is warranted only “when a movant
untimely files because of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence.” Arce v. Garcia,
434 F.3d 1254,
1261 (11th Cir. 2006) (emphasis in original). We have said that equitable tolling
typically requires some kind of affirmative misconduct on the part of the defendant
-- such as fraud, misinformation, or deliberate concealment -- and that the
plaintiff’s “ignorance of the law does not, on its own, satisfy the constricted
‘extraordinary circumstances’ test.” Jackson v. Astrue,
506 F.3d 1349, 1356 (11th
Cir. 2007). We have also rejected that a party’s pro se status, ignorance of the
judicial process, or delays in the proceedings warrant the application of equitable
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tolling. Wakefield v. R.R. Ret. Bd.,
131 F.3d 967, 969-70 (11th Cir. 1997).
“Though his dereliction be only incidental, a generally diligent plaintiff who files
late because of his own negligence typically may not invoke equity to avoid the
statute of limitations.” Justice,
6 F.3d at 1479-80.
The civil action underlying this appeal is the fourth legal proceeding arising
out of the same set of operative facts.3 Pertinent to this appeal, Bray filed an
earlier civil action against Bank of America (“Bray II”) in February 2012, in which
he asserted the same violation of the BHCA’s anti-tying provisions that Bray has
alleged in this case. The complaint in Bray II was dismissed ultimately for lack of
Article III standing after the district court determined that Bray had failed to allege
plausibly a causal connection between his alleged injury and Bank of America’s
complained-of conduct. The Eighth Circuit affirmed the dismissal in October
2016. Bray v. Bank of Am., 669 F. App’x 821 (8th Cir. 2016).
On appeal, Bray argues that equitable tolling is warranted here because he
pursued diligently his BHCA claim by filing Bray II within the pertinent statute of
limitations. Bray concedes that his complaint in Bray II was defective but
contends it was “impossible” for him to know that the complaint was flawed until
after the district court ruled that standing was lacking.
3
The entire procedural background of this case is described more fully in the district court’s
decision. We discuss only the aspects of the procedural history that pertain to our decision on
appeal.
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Bray’s own failure to allege facts sufficient to establish standing in Bray II
constitutes no “extraordinary circumstance” warranting equitable relief. Neither
Bray’s pro se status nor his ignorance of the law, by itself, provides a basis for
equitable tolling. See Jackson,
506 F.3d at 1356; Wakefield,
131 F.3d at 969-70.
And nothing evidences that Bank of America engaged in intentional misconduct
blocking a timely filing or that Bray was otherwise misled by the district court in
Bray II. Cf. Jackson,
506 F.3d at 1356-57 (noting that -- even absent evidence of
deliberate misconduct -- equitable tolling may be appropriate where a party was
“misinformed by a court’s misleading actions or instructions.”).
We also reject Bray’s contention that his untimely filing should be excused
because he was denied the opportunity to amend his complaint in Bray II. The
record demonstrates that Bray filed a motion to amend his complaint in Bray II.
That motion, however, was denied because Bray’s proposed amendments
addressed only the merits of his BHCA claim and were “irrelevant to the threshold
question of standing.”
Bray also contends that equitable tolling is appropriate given the time
involved in resolving Bray II. Although the outcome in Bray II became final more
than three years after Bray filed his complaint there, nothing evidences that the
proceedings were unduly delayed such that equitable tolling would be warranted.
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Cf. Wakefield,
131 F.3d at 970 (rejecting an argument that delays in the
administrative process justified application of equitable tolling).
Bray has failed to demonstrate that his untimely filing in this case was the
result of extraordinary circumstances that were both out of his control and
unavoidable through diligence. Tolling is not favored; finality and predictability
are. Under the circumstances of this case, the “extraordinary remedy” of equitable
tolling is unwarranted.
Bray also suggests that -- because both civil actions arise from the same set
of operative facts -- his complaint in this case should “relate back” to the filing
date of his complaint in Bray II. Bray acknowledges, however, that his argument
is foreclosed by this Court’s binding precedent. We have said that “[d]ismissal of
a complaint, without prejudice, does not allow a later complaint to be filed outside
the statute of limitations.” Foudy v. Indian River Cnty. Sheriff’s Office,
845 F.3d
1117, 1125-26 (11th Cir. 2017); Bost v. Fed. Express Corp.,
372 F.3d 1233, 1242
(11th Cir. 2004).
AFFIRMED.
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