Emory A. Kinsey v. MLH Financial Services, Inc. , 509 F. App'x 852 ( 2013 )

Case: 12-10451 Date Filed: 02/14/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10451
Non-Argument Calendar
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D.C. Docket No. 3:11-cv-00686-J-JRK
EMORY A. KINSEY,
Plaintiff-Appellant,
versus
MLH FINANCIAL SERVICES, INC.,
Defendant-Appellee.
________________________
No. 12-10452
Non-Argument Calendar
________________________
D.C. Docket No. 3:10-cv-01055-J-JRK
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EMORY A. KINSEY,
Plaintiff-Appellant,
versus
MLH FINANCIAL SERVICES, INC.,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(February 14, 2013)
Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Emory Kinsey (“Kinsey”) appeals pro se the magistrate judge’s
dismissal of his actions under the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692-1692p (“FDCPA”), the Florida Consumer Collection Practices Act, Fla.
Stat. § 559.72 (“FCCPA”), and other Florida state-law provisions.1
Kinsey filed a complaint in the district court on November 16, 2010. He
also filed a complaint in Florida state court on June 13, 2011, which MLH
Financial Services, Inc. (“MLH”) removed to federal court. In his complaints,
1
The parties consented to a magistrate judge presiding over this case pursuant to 28
U.S.C. § 636 et seq.
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Kinsey alleged that, upon his separation from the military, NCNB National Bank
of Florida (“NCNB”) repossessed one of his vehicles. It then obtained a 1990
Florida state-court judgment against him in the amount of $3,175.86. Thereafter,
on June 15, 2009, MLH served him with a notice of sale and assignment of
judgment that it filed with the Florida state court, in which it claimed to have
purchased the judgment in November 2002. MLH thereafter obtained a writ of
execution, and, through the Sheriff, levied upon Kinsey’s vehicle. Ultimately, on
September 17, 2009, MLH agreed to accept $2,000.00 in full satisfaction of
Kinsey’s debt.
On appeal, Kinsey argues that the magistrate judge erred by dismissing both
complaints for failure to state a claim. 2 He asserts that he sufficiently stated claims
under the FDCPA, FCCPA, and other Florida state-law provisions inasmuch as
MLH collected upon a judgment that it did not own in light of various deficiencies
with the assignment, MLH’s state-court filings, and the collection process.3
2
Kinsey filed purported objections to the magistrate’s report and recommendation in both
cases after the magistrate judge entered final judgment, and the magistrate deemed them moot.
He also appealed both of these orders, but has abandoned any assignment of error by failing to
address the magistrate judge’s orders in his brief. See Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (holding that, although we liberally construe pro se briefs, a pro se party
abandons issues not raised on appeal).
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MLH argues that Kinsey’s appeals are untimely. The magistrate judge, however, did
not set forth either judgment in a separate document, and Kinsey timely filed his notices of
appeal within the resulting 180-day period within which to appeal. See Fed.R.App.4(a)(1)(A),
(7)(A)(ii); Fed.R.Civ.P. 58(a). We conclude, therefore, that we have jurisdiction to consider both
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We review the dismissal of a complaint for failure to state a claim, as well as
the accompanying statutory interpretations, de novo. Timson v. Sampson, 518 F.3d
870, 872 (11th Cir. 2008). The complaint must contain sufficient factual matter,
which, accepted as true, states a claim for relief that is plausible on its face.
Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868(2009)). A claim is plausible on its face when it permits the court to draw a
reasonable inference that the defendant is liable for the alleged misconduct. Id.A court does not have to accept a plaintiff’s legal conclusions as true. See
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed.2d 868(2009). A plaintiff does not state a claim for relief by offering mere “labels and
conclusions,” “formulaic recitations of the elements of a cause of action,” or
“naked assertions devoid of further factual enhancement.” See id. (internal
quotation marks and alterations omitted). Allegations that the defendant harmed
the plaintiff, without more, will not suffice to satisfy the plaintiff’s burden. See id.In resolving a motion to dismiss under Rule 12(b)(6), the court generally
limits itself to a consideration of the pleadings and exhibits attached thereto. See
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). Exhibits
that are attached to a pleading are considered part of the pleading for all purposes.
of Kinsey’s appeals. See Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001) (holding that
the time limit within which to appeal is “mandatory and jurisdictional”).
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See Fed.R.Civ.P. 10(c). A court, however, may consider documents attached to a
motion to dismiss without converting it to a motion for summary judgment where
the attached documents are central to the plaintiff’s claim and their authenticity is
not challenged. Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). When
exhibits attached to a complaint contradict a plaintiff’s general and conclusory
allegations, the exhibits govern despite a court’s duty to accept a plaintiff’s
allegations as true. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06 (11th
Cir. 2007).
Congress enacted the FDCPA in order to eliminate debt collectors’ abusive
debt-collection practices and protect consumers against debt-collection abuses.
Edwards v. Niagara Credit Solutions, Inc. 584 F.3d 1350, 1352 (11th Cir. 2009).
Individuals maintain civil causes of action against any debt collector who fails to
comply with the FDCPA’s requirements. Id. Similarly, the state of Florida passed
the FCCPA, which prohibits any person, in collecting upon a consumer debt, from
using or threatening force or violence, disclosing information that affects the
debtor’s reputation, willfully communicating with the debtor or his family with
such frequency as can reasonably be expected to harass the debtor or his family,
willfully engaging in any other conduct that can reasonably be expected to abuse or
harass the debtor or his family, or claim, attempt, or threaten to enforce a debt that
the person knows is not legitimate. Fla. Stat. § 559.72.
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In Florida, absolute immunity attaches to any act that occurs during the
course of a judicial proceeding so long as the act has some relation to the
proceeding. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v.
United States Fire Ins. Co., 639 So.2d 606, 608 (Fla. 1994). This privilege applies
to statutory violations, including those of the FCCPA. See Echevarria, McCalla,
Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 383-84 (Fla. 2007).
After reviewing the record, and reading the parties’ briefs, we conclude that
Kinsey failed to state any claim under the FDCPA, FCCPA, or relevant state-law
provision in both of his complaints. Accordingly, we conclude that the magistrate
judge properly dismissed both complaints; thus, we affirm the judgments of
dismissal.
AFFIRMED.
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