Joel D. Joseph v. Richard S. Bernstein , 612 F. App'x 551 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13989
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-24355-CMA
JOEL D. JOSEPH,
Plaintiff-Appellant,
versus
RICHARD S. BERNSTEIN,
RICHARD S. BERNSTEIN AND ASSOCIATES, INC.,
AMERICAN GENERAL LIFE INSURANCE COMPANIES LLC,
AMERICAN INTERNATIONAL GROUP, INC.,
AMERICAN GENERAL ASSURANCE COMPANY, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 12, 2015)
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Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Joel D. Joseph, proceeding pro se, appeals the district court’s order
dismissing his complaint filed pursuant to the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1962, 1964; the Florida Unfair Insurance
Trade Practices Act (UITPA), Fla. Stat. § 626.9541; and the Florida Adult
Protective Services Act (APSA), Fla. Stat. § 415.1111.1Joseph raises several issues on appeal. As a general matter, Joseph argues
that the district court erred in determining that his complaint did not meet requisite
pleading standards. He also challenges the district court’s determinations with
regard to his specific claims, including the district court’s holding that he failed to
allege sufficient predicate acts to state a RICO claim. Next, he argues that the
district court erred by dismissing his UITPA and APSA claims based on its
determination that he did not have a private cause of action under either statute and
that, even if he did, his claims were barred by the statute of limitations. He further
contends that the district court provided him with insufficient time to amend his
complaint in the first instance and should have permitted further amendment of his
complaint after dismissing the claims in his first amended complaint.
1
Joseph failed to challenge the district court’s dismissal of his Florida common law fraud
claims, and any appeal thereof is deemed abandoned. See Access Now, Inc. v. Southwest Airlines
Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (noting that if an appellant does not present a legal
claim or argument in his initial brief, that argument is deemed abandoned); see also Fed. R. App.
P. 28(a)(5).
2
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After considering the parties’ briefs and conducting a de novo review of the
record on appeal, we conclude that Joseph has failed to raise any issues warranting
reversal, and we affirm the district court.
I.
In 2013, Joseph filed a pro se diversity complaint against two insurance
brokers and three insurance companies (collectively, Defendants). 2 Joseph
contended that Defendants fraudulently sold a life insurance policy to his father,
Harold Joseph (Harold), who was 70 years of age and suffering from Alzheimer’s
disease at the time he purchased the policy from Defendants in 1993. According to
Joseph, Harold was pressured into buying a life insurance policy that he did not
understand, and he was vulnerable to persuasion because of his illness and
advanced age.
The complaint alleged that Defendants’ actions constituted
misrepresentation of the terms of an insurance policy, in violation of UITPA;
exploitation of a vulnerable adult, in violation of APSA; and common law fraud.
Joseph averred he personally suffered damages as one of the named beneficiaries
of this policy after Harold passed away on January 29, 2009, because the
beneficiaries have not been paid and the value of the insurance policy has
2
Defendants are Richard S. Bernstein and Richard S. Bernstein and Associates, Inc. (the
insurance brokers) and American General Life Insurance Companies, LLC, American
International Group, Inc., and American General Assurance Company, Inc. (the insurance
companies).
3
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substantially diminished. Defendants moved to dismiss, arguing that dismissal was
appropriate for a litany of reasons, including that Joseph was not the real party in
interest; he did not possess a private, civil remedy under UITPA or APSA; his
claims were barred by the statute of limitations; and his complaint was not pled
with sufficient particularity to state a claim upon which relief could be granted. 3
The district court initially granted Defendants’ motions to dismiss,
dismissing Joseph’s suit without prejudice. In so doing, the district court noted
that there were several pleading deficiencies in Joseph’s complaint, each of which
warranted dismissal. Joseph’s complaint violated Federal Rule of Civil Procedure
10(b) by engaging in a “shotgun” style of pleading, whereby each count
incorporated by reference the allegations of prior counts, resulting in many counts
containing irrelevant factual allegations. Further, the complaint failed to satisfy the
requirements of Rule 8 of the Federal Rules of Civil Procedure because it
indiscriminately grouped all Defendants together without explaining the factual
basis for each of the Defendants’ liability.
Turning to the merits of Joseph’s claims, the district court discussed
Joseph’s allegations in more detail, concluding that Joseph failed to state a claim
upon which relief could be granted with respect to his causes of action under
3
American General Life Insurance Company, American General Assurance Company,
and American International Group, Inc. filed a motion to dismiss collectively, and Richard
Bernstein and Richard Bernstein and Associates, Inc. filed a second motion to dismiss.
4
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UITPA and APSA and that the actions were likely time barred. The district court
also determined that Joseph’s common law fraud action was absolutely barred by
Florida’s statute of repose. The district court issued its order on April 21, 2014,
but the court allowed Joseph until May 2 to file an amended complaint.
Joseph filed his amended complaint on April 28, 2014. In addition to
reasserting his original claims under UITPA, APSA, and the common law of fraud,
Joseph’s amended complaint stated two additional causes of action for violations
of RICO.
Defendants filed a consolidated motion to dismiss the amended complaint,
contending that, because Joseph’s amended complaint simply re-pled the
allegations of his first complaint without curing any of the original complaint’s
deficiencies, his renewed claims under UITPA, APSA, and the common law of
fraud were subject to dismissal for the same reasons outlined by the district court
in its earlier order. Defendants also averred that the amended complaint failed to
state a cause of action under RICO because, among other deficiencies, it did not
allege the requisite predicate acts to support RICO liability and was not pled with
sufficient specificity to meet the heightened pleading requirements.
After considering a response filed by Joseph in opposition to Defendants’
motion to dismiss as well as a consolidated reply filed by Defendants, the district
court dismissed Joseph’s amended complaint with prejudice on August 19, 2014.
5
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In its order, the district court determined that the applicable Rules of Civil
Procedure governing the sufficiency of pleadings had not been met, even though
the district court treated Joseph as a typical pro se plaintiff and construed his
pleadings liberally. The court found that Joseph’s RICO claims were not pled with
the required specificity of Rule 9(b) of the Federal Rules of Civil Procedure and
failed to articulate the factual basis for each defendant’s liability as required by
Rule 8. Additionally, Joseph failed to establish a cause of action under RICO, as
he did not sufficiently allege statutorily required predicate acts and failed to
demonstrate that Defendants’ alleged RICO violations proximately caused his
injury.
Noting that Joseph’s amended complaint essentially re-pled the allegations
in his original complaint with respect to all other claims, the district court
incorporated its previous order, dismissing Joseph’s complaint with respect to
those claims. The court also rejected each of Joseph’s arguments related to tolling
or extending the limitations period and determined as an independent basis for
dismissal that Joseph’s claims were time barred.
Finally, the district court clarified that its dismissal was final, and Joseph
would not be allowed further opportunity to amend his complaint. In so doing, the
court noted that it already provided Joseph with one opportunity to amend his
claims, and, in any event, amendment would be futile. This appeal ensued.
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II.
We review de novo a district court’s order granting a motion to dismiss for
failure to state a claim. See Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)
(per curiam). Thus, we view the complaint in the light most favorable to the
plaintiff, accepting all of the plaintiff’s well-pleaded facts as true. See id. In order
to survive a motion to dismiss, the plaintiff’s complaint must contain facts
sufficient to support a plausible claim to relief. See Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 1949 (2009). Conclusory allegations and bare legal
conclusions are insufficient to preclude dismissal. See Oxford Asset Mgmt., Ltd. v.
Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). A complaint is also subject to
dismissal “when its allegations, on their face, show that an affirmative defense bars
recovery on the claim.” Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008)
(internal quotation marks omitted).
When a district court judgment is based upon multiple, independent grounds,
an appellant must convince the appellate court that each enumerated ground for the
judgment is incorrect before reversal is appropriate. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). If an appellant fails to
clearly identify and challenge in his initial brief one of the grounds on which the
district court based its judgment, he is deemed to have abandoned any challenge to
that ground, and we will affirm the district court’s judgment. Id.7
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III.
A. Pleading Deficiencies
The district court recognized numerous independent grounds for dismissing
Joseph’s claims. Foremost among them was Joseph’s failure to comply with
requisite pleading standards, which the district court identified in its first order and
which Joseph failed to rectify when permitted to amend his complaint. Although
pro se pleadings are to be liberally construed and are held to a less stringent
standard than pleadings drafted by attorneys, a pro se litigant must still follow
procedural rules.4 See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)
(per curiam). Here, although Joseph attempted to re-plead the UITPA and APSA
claims raised in his initial complaint, he did so without curing the deficiencies the
district court explicitly identified in its April 21 order and further repeated the
same deficiencies with regard to the RICO claims added in the amended complaint.
First, Rule 10(b) requires that the averments of a claim be made in
“numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” Fed. R. Civ. P. 10(b). The requirements of Rule 10(b) are
4
As an initial matter, we note that the district court treated Joseph as a typical pro se
litigant and construed his pleadings liberally. Because we find that the district court is due to be
affirmed even with a permissive reading of Joseph’s pleadings, we do not reach the issue of
whether Joseph’s pleadings should in fact be held to the more stringent attorney standard due to
Joseph’s status as a former attorney who received formal legal training. See Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam) (noting that pro se litigants’
pleadings receive more liberal construction than “pleadings drafted by attorneys”); see also
Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x 274, 277 (11th Cir. 2008) (per curiam)
(observing that, as a former attorney, the appellant was not a “typical” pro se litigant).
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violated by the filing of a “shotgun complaint,” which is a complaint containing
“several counts, each one incorporating by reference the allegations of its
predecessors, leading to a situation where most of the counts (i.e., all but the first)
contain irrelevant factual allegations and legal conclusions.” Strategic Income
Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir.
2002). Shotgun-style pleadings have been “explicitly condemned” by this court.
Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 n.54 (11th Cir. 2008),
Here, Joseph’s complaint fails to meet the requirements of Rule 10(b).
Initially, as noted by the district court, each count incorporated all of the preceding
paragraphs of the complaint, including those contained in other counts, regardless
of whether the factual allegations had any bearing on the claims. The amended
complaint, rather than addressing this deficiency, instead failed to incorporate any
specific factual allegations into his claims. Thus, the claims presumably all refer to
the same general factual allegations, with no clear connection thereto or
application thereof. This makes it “virtually impossible to know which allegations
of fact are intended to support which claim(s) for relief.” See Anderson v. Dist. Bd.
of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996).
Second, Rule 8 requires “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). If the complaint
indiscriminately groups the defendants together, it fails to comply with the
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minimum standard of Rule 8. Here, the amended complaint failed to satisfy
Rule 8; Joseph’s claims “indiscriminately lump[ed] all five Defendants together,”
without articulating the factual basis for each Defendant’s liability. The complaint
generally accuses all five Defendants of the acts complained of as bases for the
causes of action.
Third, Joseph’s claims of fraud, which, as relevant to this appeal, include the
RICO claims, did not comply with the heightened pleading standard of Rule 9(b).
See Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1316 (11th
Cir. 2007) (noting that civil RICO claims “are essentially a certain breed of fraud
claims” and thus must comply with Rule 9(b)). Joseph’s allegations of fraud
plainly failed to “plead the who, what, when, where, and how of the allegedly false
statements.” See Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir.
2008).
Joseph’s general argument on appeal addressing these pleading
deficiencies—that the district court failed to view his amended complaint in the
light most favorable to him—is without merit. Joseph was required to comport
with the procedural rules, see Albra, 490 F.3d at 829, and furthermore, conclusory
allegations and bare legal conclusions are insufficient to preclude dismissal, see
Oxford Asset Mgmt., Ltd., 297 F.3d at 1188. Thus, the district court appropriately
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determined that Joseph failed to meet the requisite pleading standards in his
complaint.
B. Additional Grounds for Affirmance
There are also additional, independent grounds for affirming the dismissal of
Joseph’s claims, notwithstanding the general pleading deficiencies identified that
independently support dismissal.
By way of example, Joseph failed to allege a required element—predicate
acts of racketeering activity—for his RICO claims. RICO provides for civil and
criminal liability against any person who conducts the affairs of an enterprise
through “a pattern of racketeering activity.” See 18 U.S.C. §§ 1962(c), 1964.
Establishing a “pattern of racketeering activity” requires at least two predicate acts
of racketeering activity. See Williams v. Mohawk Indus. Inc., 465 F.3d 1277, 1283
(11th Cir. 2006) (per curiam). As relevant here, this list of predicate acts includes
theft from an interstate shipment as defined in 18 U.S.C. § 659 and “fraud in the
sale of securities.” See 18 U.S.C. § 1961(1). However, pursuant to § 1964(c), a
plaintiff may not rely upon “any conduct that would have been actionable as fraud
in the purchase or sale of securities” unless the alleged wrongdoer was criminally
convicted in connection with the fraud.
Liberally construing the complaint, we find that Joseph alleged both theft
and securities fraud as predicate acts. However, although theft from an interstate
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shipment, as defined in § 659, qualifies as a predicate act for RICO purposes,
simple theft is not one of the listed offenses. See § 1961(1). Joseph did not claim
that the alleged theft involved an interstate shipment. Similarly, Joseph cannot
successfully allege securities fraud as a predicate act because § 1964(c) provides
that a plaintiff may not rely upon securities fraud as a predicate act unless the
defendant was criminally convicted in connection with the fraud. Thus, the district
court did not err by dismissing Joseph’s RICO claims because he failed to allege
qualifying predicate acts of racketeering activity. 5
There are also independent grounds for affirming the district court’s
dismissal of Joseph’s UITPA and APSA claims. The district court found that the
relevant statutes did not provide a cause of action for Joseph’s claims and that,
even if they did, Joseph’s claims were nevertheless time barred. We need only
reach the former basis for dismissal to support affirmance.
UITPA provides that it is an unfair or deceptive practice for any person to
knowingly “misrepresent[] the benefits, advantages, conditions, or terms of any
5
Joseph also fails to challenge on appeal an independent ground on which the district
court relied in dismissing his claims—that Joseph did not allege proximate cause sufficient to
state a RICO claim. A plaintiff in a civil RICO action must satisfy the requirements of 18 U.S.C.
§ 1964(c), meaning that the plaintiff must demonstrate injury to “business or property . . . by
reason of the substantive RICO violation.” Williams, 465 F.3d at 1283 (internal quotation marks
omitted). The “by reason of” language requires a plaintiff to demonstrate that the defendant’s
substantive RICO violation proximately caused the plaintiff’s injury. Id. at 1287. Because
Joseph fails to address the district court’s holding dismissing his RICO claim for lack of
proximate cause, he is deemed to have abandoned any challenge on that ground, and affirmance
is also appropriate for this additional reason. See Sapuppo, 739 F.3d at 680.
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insurance policy.” Fla. Stat. § 626.9541(1)(a)(1). Although the statutory scheme
provides a private civil remedy for violations of certain sections of the Act, it does
not do so for § 626.9541(1)(a)(1). See id. § 624.155 (authorizing a civil action
against an insurer when certain listed subsections are violated).
Even if we liberally construe his complaint, Joseph alleged only that
Defendants violated Fla. Stat. § 626.9541(1)(a)(1) by misrepresenting the terms of
the life insurance policy they sold to Harold. Again, Section 626.9541(1)(a)(1) is
not one of the enumerated sections for which UITPA provides a private cause of
action. See Fla. Stat. § 624.155. We will not imply a cause of action under UITPA
where the courts and legislature of the state of Florida have declined to do so. See
Swerhun v. Guardian Life Ins. Co. of Am., 979 F.2d 195, 198 (11th Cir. 1992); see
also Keehn v. Carolina Cas. Ins. Co., 758 F.2d 1522, 1522–25 (11th Cir. 1985)
(per curiam) (holding that UITPA did not provide plaintiffs with an independent
cause of action for violation of its terms). Accordingly, UITPA does not provide
Joseph with a private civil remedy for violation of Fla. Stat. § 626.9541(1)(a)(1).
Similarly, with regard to Joseph’s APSA claims, if we liberally construe
Joseph’s complaint, we may read it to allege that Defendants unlawfully exploited
Harold, in violation of APSA, when they sold him an insurance policy in 1993.
Although APSA was amended in 1995 to provide a private cause of action, the
1993 version of the Act did not contain any similar provision. See Fla. Stat.
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§ 415.1111; 1995 Fla. Sess. Law Serv. Ch. 95-418, § 112. We will not imply a
cause of action under the 1993 version of APSA where the courts and legislature of
the state of Florida did not do so until 1995. 6 See Swerhun, 979 F.2d at 198. Thus,
Joseph did not possess a private civil remedy under UITPA or APSA, and the
district court did not err by dismissing his claims.
C. Leave to Amend the Complaint
Joseph argues on appeal that he should have been granted more time to
amend his original complaint and that the district court erred by only permitting
him to amend his complaint once. We generally review the denial of a motion to
amend a complaint for abuse of discretion, but we review underlying questions of
law de novo, such as whether amendment of a complaint would be futile. Cockrell
v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam).
Here, Joseph did not move to amend his complaint; however, the district
court permitted amendment after identifying the deficiencies in Joseph’s
complaint. Considering Joseph’s amended complaint, the district court noted that
the deadline for amending pleadings set forth in the court’s scheduling order had
long passed; Joseph did not seek additional leave to amend nor did he request an
6
Nor is it clear that the allegations of the complaint would constitute a violation of APSA
even as amended. In 1995, the Florida Legislature amended the APSA to provide that a
“vulnerable adult who has been abused, neglected, or exploited” in violation of APSA has a
private cause of action against the perpetrator of the abuse. Fla. Stat. § 415.1111; 1995 Fla. Sess.
Law Serv. Ch. 95-418, § 112. Only “exploitation” could be relevant here, but the definition of
exploitation does not directly contemplate an insurance company’s sale of an insurance policy,
and Joseph has neither alleged nor argued how this definition covers his claims.
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amendment to the scheduling order; and Joseph had not cured the deficiencies in
his original complaint identified by the district court. The district court then found
that, in any event, further amendment would be futile and dismissed the complaint
with prejudice. We have plenary review of the district court’s determination. See
id.
Rule 15(a) of the Federal Rules of Civil Procedure states that “[a] party may
amend its pleading once as a matter of course” within 21 days after serving it, or
within 21 days after the earlier of service of any responsive pleading or service of a
Rule 12(b) motion, but in all other cases a party may amend its pleading only by
leave of the court or by written consent of the adverse party. Fed. R. Civ. P.
15(a)(1), (a)(2). The district court “should freely give leave when justice so
requires.” Id. However, where a more carefully drafted complaint could not state
a claim and amendment would be futile, dismissal with prejudice is proper. See
Cockrell, 510 F.3d at 1310.
As an initial matter, Joseph waived any argument related to the district court
providing him with insufficient time to amend his complaint in the first instance.
See Tannenbaum, 148 F.3d at 1263 (noting that, although pro se pleadings are
liberally construed, issues not raised before the district court are deemed waived).
The district court dismissed Joseph’s original complaint on April 21, 2014,
allowing him until May 2 to file an amended complaint. Joseph did not object to
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the district court’s scheduling order, nor did he file a motion for extension of time.
Thus, by failing to raise the issue before the district court, Joseph is deemed to
have waived any challenge on that ground. See id.Further, the district court did not err by dismissing Joseph’s amended
complaint with prejudice. Joseph does not argue that he could allege any of the
required predicate acts under RICO; also, as noted above, Joseph’s claims under
UITPA and APSA were properly dismissed. On appeal, we have been presented
with no compelling argument that Joseph could present a complaint that might
state a claim upon which relief could be granted. Thus, allowing amendment to re-
allege the same violations would be futile; the district court did not err by
dismissing the matter with prejudice after determining that further amendment of
the complaint would be futile. See Cockrell, 510 F.3d at 1310.
Likewise, the record is clear that lesser sanctions would not suffice.
Although the district court initially provided Joseph with an opportunity to amend
his complaint, and further set forth in significant detail the deficiencies that Joseph
needed to address in order to continue with his claims, Joseph did not heed the
instruction of the district court. Indeed, as the court noted in its August 19th order,
“[a] side-by-side comparison of [Joseph’s] initial Complaint and Amended
Complaint reveals [Joseph] has made only a few minor revisions and has not cured
the flaws present in the previous Complaint.” Thus, Joseph’s disregard of the
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district court’s directions after having been provided an opportunity to amend and
cure the deficiencies supports dismissal with prejudice. See Friedlander v. Nims,
755 F.2d 810, 813–14 (11th Cir. 1985).
IV.
Upon a de novo review of the record and thorough consideration of the
parties’ briefs, we affirm.
AFFIRMED.
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