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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10453
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-24542-RNS
HORACIO SEQUEIRA,
Plaintiff-Appellant,
versus
STEVEN STEINLAUF,
individual,
GEICO GENERAL INSURANCE COMPANY,
GATE SAFE, INC.,
AMERICAN AIRLINES, INC.,
a Corporation, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 21, 2018)
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Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Horacio Sequeira, proceeding pro se, appeals the district court’s final
judgment granting summary judgment and dismissing his third amended
complaint. He also appeals the district court’s orders dismissing his second
amended complaint and denying his motion to amend the scheduling order and
leave to file a fourth amended complaint. On appeal, he argues, first, that the
district court erroneously converted American Airlines, Inc.’s (“American”)
motion to dismiss into a motion for summary judgment. Second, he argues that the
district court abused its discretion in dismissing new parties and claims alleged in
his second amended complaint for violating its scheduling order because the
authorization order was ambiguous. He also argues that the court erred in
dismissing his claims against American for failure to state a claim.
Third, he argues that the district court abused its discretion in denying his
motion to amend the scheduling order and leave to file a fourth amended complaint
because he established good cause. Finally, he argues that the court erred in
granting summary judgment on his defamation claim because he presented
evidence that his former employer, Gate Safe, Inc. (“Gate Safe”), made false
statements against him.
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I.
We review de novo a district court’s grant of a motion to dismiss. SFM
Holdings, Ltd. v. Banc of Am. Securities, LLC,
600 F.3d 1334, 1336 (11th Cir.
2010). We may sua sponte raise the issue of whether a district court failed to abide
by Federal Rule of Civil Procedure 56’s notice requirements. Griffith v.
Wainwright,
772 F.2d 822, 824 (11th Cir. 1985).
If a district court considers matters outside the pleadings in adjudicating a
Rule 12(b)(6) motion to dismiss, the motion is converted into a Rule 56 motion for
summary judgment. Trustmark Ins. Co. v. ESLU, Inc.,
299 F.3d 1265, 1267 (11th
Cir. 2002). Where conversion occurs, the district court must notify the parties of
the conversion and give them a reasonable time to respond. Id.; Fed R. Civ. P.
56(f). Failure to abide by Rule 56’s notice requirement constitutes reversible error.
Ga. State Conference of N.A.A.C.P. v. Fayette Cty. Bd. Of Comm’rs,
775 F.3d
1336, 1344 (11th Cir. 2015).
Because the district court did not consider matters outside of the pleadings in
dismissing Sequeira’s second amended complaint, it did not convert American’s
motion to dismiss into a motion for summary judgment.
II.
We have an obligation to satisfy ourselves of our own jurisdiction and may
raise the issue sua sponte. AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car Auto
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Racing, Inc.,
494 F.3d 1356, 1360 (11th Cir. 2007). We review jurisdictional
issues de novo.
Id. We review dismissals for violating court orders for abuse of
discretion. Gratton v. Great Am. Commc’ns,
178 F.3d 1373, 1374 (11th Cir.
1999).
Federal courts have ‘“no authority to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law which cannot affect
the matter in issue in the case before it.”’ Zinni v. ER Solutions,
692 F.3d 1162,
1166 (11th Cir. 2012) (quoting Church of Scientology of Cal. v. United States,
506
U.S. 9, 12 (1992)). Mootness is jurisdictional. Sierra Club v. U.S. E.P.A.,
315
F.3d 1295, 1299 (11th Cir. 2002). Review of the dismissal of an amended
complaint may become moot where the plaintiff was allowed to file a subsequent
amended complaint. Burton v. City of Belle Glade,
178 F.3d 1175, 1188 n.10
(11th Cir. 1999).
We lack jurisdiction to review the district court’s order dismissing
Sequeira’s second amended complaint because the dismissal was rendered moot by
Sequeira’s third amended complaint. To the extent that the dismissal of some of
the claims was not rendered moot, the district court did not abuse its discretion in
dismissing Sequeira’s claims against GateGroup and LSG, and new claims against
Gate Safe and American. Sequeira’s first amended complaint listed only Gate
Safe, Geico, and American as defendants, and raised only negligence, assault, libel,
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slander, wrongful discharge, and lost wages claims. The district court’s January
20, 2017, scheduling order informed Sequeira that the deadline date for joining
additional parties or amending pleadings was February 24, 2017. Sequeira
violated that order by adding LSG and GateGroup as defendants in his second
amended complaint, and raising new claims-specifically new negligence, age
discrimination, failure to accommodate, failure to engage in the interactive process,
harassment, breach of contract, and retaliation claims. Although Sequeira had not
been engaged in a pattern of violating the district court’s orders, he was not
prejudiced by the dismissal because it was without prejudice. Dynes v. Army Air
Force Exch. Serv.,
720 F.2d 1495, 1499 (11th Cir. 1983). And, the district court’s
decision to strictly enforce the terms of its scheduling order and dismiss the
additional parties and claims was not an abuse of discretion. See Josendis v. Wall
to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1307 (11th Cir. 2011).
Sequeira’s argument that he misunderstood the district court’s instructions
permitting him to file a second amended complaint is unavailing. The district
court's grant of leave to file a second amended complaint was explicit in that he
could file an amended complaint addressing the deficiencies in his first amended
complaint. These instructions were unambiguous, because the only deficiencies
referenced by the court in its order were factual deficiencies with regards to his
negligence claim against Geico and American, and his assault, libel, and
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slander claims against Gate Safe. Thus, the district court did not abuse its
discretion in dismissing Sequeira’s claims against LSG and GateGroup, and his
additional claims against Gate Safe and American.
The district court did not err in dismissing Sequeira's negligence claims
against American because there was no employer/employee relationship between
American and any of the workers alleged in the second amended complaint.
Negligent hiring, training, and retention claims brought under Florida law all
require the existence of an employer/employee relationship in order to be
actionable. Lewis v. City of St. Petersburg,
260 F.3d 1260, 1265 (11th Cir. 2001)
(applying Florida law); Malicki v. Doe,
814 So. 2d 347, 361-62 (Fla. 2002); Garcia
v. Duffy,
492 So. 2d 435, 438-39 (Fla. Dist. Ct. App. 1986). Sequeira alleged that
both American and LSG hired workers to operate American trucks to collect food
carts from warehouses managed by American and LSG. However, Sequeira
alleged that prior to picking the carts up, only LSG workers lined up the carts for
inspection. Further, the individual who caused Sequeira’s injury, failed to seek
medical assistance, and failed to report the incident—Abdiel—was alleged to be an
LSG employee. The other alleged negligent actors, Campbell, Maria, Latchu, and
Rodriguez, were all Gate Safe employees. Although Sequeira alleged that
American was negligent in hiring, training, and retaining its employees, he did not
identify a single American employee involved in his injury. Thus, because
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Sequeira did not allege that any American employees negligently caused him
harm, the district court did not err in dismissing his negligent hiring, training, and
retention claims against American.
Also, the district court did not err in dismissing Sequeira’s negligence claim
because American had no duty to protect Sequeira from the risk of being hit by
food carts. As discussed above, the only workers alleged to be involved in the
lining up of food carts for inspection were those of LSG. Therefore, American
could not be liable for the actions of LSG’s employees absent a special relationship
between LSG’s employees lining up the food carts and American. KM ex rel. D.M
v. Publix Super Markets, Inc.,
895 So. 2d 1114, 1117 (Fla. Dist. Ct. App. 2005). As
Sequeira concedes, American had no control over LSG employees, and, as such,
no special relationship existed and American could not be held liable for LSG's
employee's negligence in lining up the carts. See
id. Finally, Sequeira does not
challenge the district court's determination that American could not be held liable
because the dangerous condition was open or obvious, but rather argues that, as a
matter of public policy, American should have been held liable anyway. Because
this argument was not before the district court when it dismissed Sequeira’s second
amended complaint, this Court need not address it now on appeal. Access Now,
Inc. v, Southwest Airlines Co.,
385 F.3d 1324, 1331-32 (11th Cir. 2004).
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III.
We review the denial of a motion to amend a complaint for abuse of
discretion. Corsello v. Lincare, Inc.,
428 F.3d 1008, 1012 (11th Cir. 2005). To
obtain reversal of a district court judgment that is based on multiple, independent
grounds, an appellant must challenge every stated ground, or we will summarily
affirm. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir.
2014).
Where a party that seeks to file an amended complaint after already having
previously done so, it may do so “only with the opposing party’s written consent or
the court’s leave,” which should be granted when justice requires. Fed. R. Civ. P.
15(a)(2). Where the request to file an amended complaint is made after the time
provided by the court’s scheduling order, the party must show good cause under
Rule 16(b). Sosa v. Airprint Sys., Inc.,
133 F.3d 1417, 1419 (11th Cir. 1998); Fed.
R. Civ. P. 16(b)(4).
Because Sequeira does not contest every ground that the district court gave
in denying his motion to modify the scheduling order and leave to file a fourth
amended complaint, we summarily affirm the denial of his motion.
IV.
We review a district court order granting summary judgment de novo,
viewing “the evidence and all reasonable inferences drawn from it in the light most
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favorable to the nonmoving party.” Battle v. Bd. of Regents.,
468 F.3d 755, 759
(11th Cir. 2006).
A district court may grant summary judgment if “the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Shaw v. City of Selma,
884 F.3d 1093, 1098 (11th
Cir. 2018). If shown, the burden shifts to the nonmoving party to show that a
genuine issue of fact exists.
Id. Summary judgment should be granted against a
party who fails to establish the existence of an essential element of their case for
which they will bear the burden of proof at trial. Melton v. Abston,
841 F.3d 1207,
1219 (11th Cir. 2016). A district court may not consider unsworn statements in
ruling on a motion for summary judgment. Carr v. Tatangelo,
338 F.3d 1259,
1273 n.26 (11th Cir. 2003).
A defamation claim brought under Florida law requires that the plaintiff
show that “(1) the defendant published a false statement (2) about the plaintiff
(3) to a third party and (4) that the falsity of the statement caused injury to the
defendant.” Valencia v. Citibank Int’l,
728 So. 2d 330, 330 (Fla. Dist. Ct. App.
1999).
Because Sequeira did not present evidence of any false statements made by
Gate Safe, the district court did not err in granting summary judgment on his
defamation claim.
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AFFIRMED.
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