[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 16, 2010
No. 09-13790 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-02006-CV-T-27-EAJ
CHRISTINE E. MARFUT,
Plaintiff-Appellant,
versus
CITY OF NORTH PORT, FLORIDA,
a municipal corporation,
NELSON-HESSE LAW OFFICE,
ROBERT K. ROBINSON,
DANIEL GUARNIERI,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 16, 2010)
Before DUBINA, Chief Judge, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Appellant Christine Marfut is proceeding pro se from the district court’s
dismissal of her civil complaint raising multiple claims that the City of North Port,
Florida, the Nelson Hesse Law Firm, and Robert K. Robinson and Daniel
Guarnieri, attorneys at that law firm, violated her rights under the Constitution and
several federal statutes when it imposed and attempted to collect fines on various
properties she owned. This appeal indisputably covers the district court’s denial of
Marfut’s motion, which the district court construed as a motion to re-open the case
and reconsider dismissal. The appellees argue that we lack jurisdiction to consider
two previous orders of the district court: (1) an order dismissing with prejudice for
failure to state a claim under Fed. R. Civ. P. 12(b)(6) four counts of her complaint,
alleging violations of
15 U.S.C. §§ 1692-1692p, and
18 U.S.C. §§ 1341, 1951,
1346, and ordering Marfut to file an amended complaint as to the remaining
counts; and (2) a subsequent order dismissing without prejudice the remainder of
the counts, alleging violations of the Fourth and Eighth Amendments, civil rights
violations, and violations of 18 U.S.C §§ 1961-1968, for failure to follow court
orders and for lack of prosecution pursuant to a local court rule.
Marfut argues that the district court erred in dismissing three of the four
counts with prejudice because her complaint asserted valid legal claims of mail
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fraud,
18 U.S.C. § 1341, the right to honest services,
18 U.S.C. § 1346, and the
Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. §§ 1692-1692p. She
also argues that the district court erred in dismissing the remainder of her case
without prejudice because she did respond to the court’s orders, and she did
prosecute her case. Finally, she asserts that the court erred by not reconsidering its
dismissal of the case.
I. Jurisdiction over underlying dismissals of the complaint
“[We have] held that where an order dismisses a complaint with leave to
amend within a specified period, the order becomes final (and therefore
appealable) when the time period allowed for amendment expires.” Briehler v.
City of Miami,
926 F.2d 1001, 1002 (11th Cir.1991). A notice of appeal in a civil
case must be filed within 30 days after the judgment or order appealed from is
entered. Fed. R. App. P. 4(a)(1)(A). When the district court fails to enter a
separate judgment pursuant to Fed. R. Civ. P. 58, the time to appeal begins when
“150 days have run from” the order’s entry in the civil docket, which gives an
appellant in a civil case 180 days to file a notice of appeal. Fed. R. App. P. 4(a)(7);
Fed. R. Civ. P. 58. We liberally construe notices of appeal to allow the appeal of
orders not specifically designated in the notice “where it is clear that the overriding
intent was effectively to appeal.” KH Outdoor, LLC v. City of Trussville, 465
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F.3d 1256, 1260 (11th Cir. 2006).
After reviewing the record, we conclude that the dismissal with prejudice
became final upon the expiration of the time periods the district court granted
Marfut to amend the complaint. We further conclude that Marfut’s notice of
appeal was filed within 180 days from the date of finality for each of the previous
orders, and therefore was a timely appeal of both previous orders because the
district court did not enter separate judgments. Further, it is clear from her
arguments on appeal that Marfut’s intent was to appeal both such orders.
Therefore, we have jurisdiction to review the orders.
II. Dismissals with prejudice under Fed. R. Civ. P. 12(b)(6)
On appeal,
We review de novo the district court’s grant of a motion to dismiss
under Fed. R. Civ. P[ ] 12(b)(6) for failure to state a claim, accepting
the factual allegations in the complaint as true and construing them in
the light most favorable to the plaintiff. Dismissal is appropriate
where it is clear the plaintiff can prove no set of facts in support of the
claims in the complaint.
Glover v. Liggett Group, Inc.
459 F.3d 1304, 1308 (11th Cir. 2006) (internal
citation omitted).
In the FDCPA, a “debt” is defined as “any obligation or alleged obligation
of a consumer to pay money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the transaction are
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primarily for personal, family, or household purposes, whether or not such
obligation has been reduced to a judgment.” 15 U.S.C. § 1692a(5). As we held in
Hawthorne v. Mac Adjustment, Inc.,
the FDCPA may be triggered only when an obligation to pay arises
out of a specified “transaction.” Although the statute does not define
the term . . . “transaction” necessarily implies some type of business
dealing between parties. . . . [A]t a minimum, a “transaction” under
the FDCPA must involve some kind of business dealing or other
consensual obligation.
140 F.3d 1367, 1371 (11th Cir. 1998). Further, the debts must originate in a
consumer transaction, meaning that the parties have negotiated or contracted for
consumer-related goods or services.
Id. (holding that a monetary obligation arising
from a tort suit is not a debt under the FDCPA).
There is no private cause of action under
18 U.S.C. § 1341, a criminal statute
prohibiting mail fraud. Bell v. Health-Mor Inc.,
549 F.2d 342, 346 (5th Cir.1977).
Further,
18 U.S.C. § 1346, a criminal statute prohibiting the fraudulent deprivation
of the intangible right of honest services, also defines a criminal violation and does
not provide a private right of action. See Donald Frederick Evans and Assoc., Inc.
v. Continental Homes, Inc.,
785 F.2d 897, 912-13 (11th Cir. 1986) (acknowledging
that a private right of action cannot be inferred from a criminal statute that does not
indicate a private right of action is allowed). See also Shotz v. City of Plantation,
Fla.,
344 F.3d 1161, 1167 n.7 (11th Cir. 2003) (stating “language . . . found in
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criminal statutes . . . is usually not sufficient to confer a federal right”).
A review of the record and consideration of the parties’ briefs reveal that the
district court did not err in dismissing the contested counts with prejudice.
Because this case does not involve a “debt” under the FDCPA, and the other claims
do not allow a private right of action, we conclude that none of the contested
counts asserted a valid legal claim, and the district court properly dismissed them
with prejudice.
III. Dismissals without prejudice for failure to follow court orders and failure
to prosecute
“The court’s power to dismiss a cause is an inherent aspect of its authority to
enforce its orders and insure prompt disposition of law suits. The standard of
review on appeal from the dismissal of a lawsuit is abuse of discretion.” Dynes v.
Army Air Force Exch. Serv.,
720 F.2d 1495, 1499 (11th Cir. 1983) (internal
quotation marks and citation omitted). Because the abuse-of-discretion standard
allows a “range of choice” for the district court, if no clear error of judgment has
been demonstrated, we must affirm. In re Rasbury,
24 F.3d 159, 168-69 (11th Cir.
1994).
A district court’s dismissal of a case with prejudice is viewed differently
than a dismissal without prejudice. Although a dismissal with prejudice requires a
showing of willful noncompliance with court orders such that a lesser sanction
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would not suffice, a dismissal without prejudice will be upheld even though the
case did not involve a series of violations of court rules or orders. Compare Betty
K Agencies, Ltd. v. M/V MONADA,
432 F.3d 1333, 1337-38 (11th Cir. 2005)
(holding that dismissal with prejudice is an extreme sanction requiring precise
findings by the district court of willful violation) with Dynes,
720 F.2d at 1499
(holding that a dismissal without prejudice under Fed. R. Civ. P. 41(b) was not an
abuse of discretion when the plaintiff failed to file a brief of an issue within the 30
days allotted, even though this was the plaintiff’s only failure to file requested
papers in the two years of litigation).
Because the record demonstrates that the district court did not clearly err in
determining that Marfut had failed to respond to the court’s orders and had failed
to prosecute her case, we conclude that the district court did not abuse its discretion
in dismissing the remainder of the case without prejudice.
IV. Denial of construed motion to re-open case and reconsider dismissal
“We review a district court’s denial of a motion for reconsideration for
abuse of discretion.” Corwin v. Walt Disney Co.,
475 F.3d 1239, 1254 (11th Cir.
2007) (holding that the district court’s denial of a motion for reconsideration was
not an abuse of discretion when the record supported the district court’s grant of
summary judgment). See also Cliff v. Payco Gen. Am. Credits, Inc.,
363 F.3d
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1113, 1133 (11th Cir. 2004) (holding that the district court’s denial of a motion for
reconsideration was not an abuse of discretion when the court had already
properly decided the issue).
Because the district court correctly dismissed the case, and since Marfut
presented no new support for her motion, we conclude that the district court did not
abuse its discretion in denying the pleading which it construed as a motion to re-
open the case and reconsider dismissal.
Conclusion
We affirm the orders of the district court dismissing Marfut’s civil complaint
and denying her motion to reconsider.
AFFIRMED.
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