William O. Fuller v. Joe Carollo

Case: 19-12439 Date Filed: 09/25/2020 Page: 1 of 4
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12439
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D.C. Docket No. 1:18-cv-24190-RS
WILLIAM O. FULLER,
MARTIN PINILLA,
Plaintiffs-Appellees,
versus
JOE CAROLLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 25, 2020)
Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.
WILLIAM PRYOR, Chief Judge:
Joe Carollo, a Miami City Commissioner, appeals from an order that Carollo
says denied him qualified immunity. But the district court granted Carollo’s
motion to dismiss and granted the plaintiffs, Miami businessmen William Fuller
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and Martin Pinilla, leave to amend their complaint. That order is not appealable.
We dismiss Carollo’s appeal for lack of jurisdiction.
Fuller and Pinilla allege that Carollo violated their rights to freedom of
speech and association under the First Amendment by retaliating against them for
their support of one of Carollo’s political opponents. They sued Carollo and others,
see 42 U.S.C. § 1983, and the case was referred to a magistrate judge for pretrial
proceedings. Carollo and other defendants not party to this appeal moved to
dismiss the complaint for failing to state a claim. Carollo’s motion sought
dismissal of the complaint based, in part, on qualified immunity.
The magistrate judge recommended dismissing Fuller and Pinilla’s
complaint with leave to amend based on problems with the scope of the requested
relief. Because the magistrate judge recommended dismissing with leave to amend,
she also reviewed the other arguments presented in the motions to dismiss,
including Carollo’s argument for qualified immunity. The magistrate judge
concluded that Carollo was not entitled to qualified immunity because his alleged
conduct violated clearly established law.
The district court adopted the magistrate judge’s report and granted the
motions to dismiss, with leave for Fuller and Pinilla to amend. The district court
also ordered that “Defendant Carollo’s Motion to Dismiss [be] DENIED as to
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qualified immunity for the reasons detailed in the Report and Recommendation.”
But given the dismissal of the complaint, that language had no effect.
We have no choice but to sua sponte dismiss this appeal for lack of
jurisdiction. “[T]he existence of appellate jurisdiction in a specific federal court
over a given type of case is dependent upon authority expressly conferred by
statute.” Carroll v. United States, 354 U.S. 394, 399 (1957). Carollo argues that we
have jurisdiction because “a district court’s denial of a claim of qualified
immunity, to the extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291.” Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). But the district court did not enter an appealable order denying
Carollo qualified immunity. The district court instead dismissed Fuller and
Pinilla’s complaint and granted them leave to amend it.
So a different finality rule applies: “[A]n order dismissing a complaint with
leave to amend within a specified time becomes a final judgment if the time
allowed for amendment expires . . . .” Auto. Alignment & Body Serv., Inc. v. State
Farm Mut. Auto. Ins. Co., 953 F.3d 707, 719–20 (11th Cir. 2020). The district
court gave Fuller and Pinilla until June 28, 2019, to file an amended complaint. But
Carollo filed his notice of appeal on June 26, two days before the order granting
Fuller and Pinilla leave would have become final. And there is no later judgment
that could have cured Carollo’s premature notice of appeal. Fuller and Pinilla did
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in fact amend their complaint within the time allowed by the district court; on June
28 they filed a new pleading entitled “Second Amended Complaint.” And on
August 19, 2019, the district court stayed the proceedings on the Second Amended
Complaint pending this appeal. Because Carollo did not appeal from a final order
of the district court, we lack jurisdiction under section 1291. And no other statute
provides us with jurisdiction over the appeal.
We DISMISS the appeal.
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