Carlos Gonzalez v. Asset Acceptance , 308 F. App'x 429 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 26, 2009
No. 08-14290 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00415-CV-FTM-29-SPC
CARLOS GONZALEZ,
Plaintiff-Appellant,
versus
ASSET ACCEPTANCE, LLC,
CT CORPORATION SYSTEMS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 26, 2009)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Appellant Carlos Gonzalez, pro se, appeals the district court’s denial of class
certification and dismissal of his complaint for failure to state a claim against
defendants Asset Acceptance, LLC (“Asset Acceptance”) and C.T. Corporation
Systems (“C.T. Corp.”) (collectively “the defendants”). On appeal, Gonzalez
argues that the district court erred in (1) denying his class action claim, and
(2) dismissing his claims under the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq., the Sarbanes-Oxley Act, 15 U.S.C. § 7201 et seq., the
Securities Exchange Act of 1933, 15 U.S.C. § 77a et seq., the Clayton Antitrust
Act, 15 U.S.C. § 12 et seq., Federal Trade Commission (“FTC”) staff commentary,
53 Fed. Reg. 50097-02 at 50110, the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and the Due Process
Clause.
I. Class action
We review the district court’s denial of class certification for an abuse of
discretion. White v. Coca-Cola Co., 542 F.3d 848, 853 (11th Cir. 2008). Pursuant
to Rule 23(f), “[a] court of appeals may permit an appeal from an order granting or
denying class-action certification . . . if a petition for permission to appeal is filed
with the circuit clerk within 10 days after the order is entered.” Fed.R.Civ.P. 23(f).
Under local rules, a plaintiff seeking class certification must move for a class
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action determination within 90 days of filing the initial complaint, and the motion
must be supported by a memorandum and contain a detailed description of the
class, including the number of class members. M.D. Fla. L.R. 4.04(b). A district
court is authorized to dismiss an action for failure to comply with local rules.
Fed.R.Civ.P. 41(b); Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993). We have
held, however, that when a pro se plaintiff is not made aware of his obligations
under a local rule, a district court is not permitted to dismiss the complaint for
failure to comply with the rule. Mitchell v. Inman, 682 F.2d 886, 887 (11th Cir.
1982).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court did not abuse its discretion by denying class certification, as
Gonzalez failed to comply with Local Rule 4.04(b).
II. Failure to state a claim
We review de novo the dismissal of a complaint for failure to state a claim,
accepting the factual allegations as true and construing them in the light most
favorable to the plaintiff. Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th
Cir. 2006). If a complaint fails to state a claim upon which relief may be granted, a
district court may dismiss it. Fed.R.Civ.P. 12(b)(6). A pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
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Fed.R.Civ.P. 8(a)(2). The purpose of Fed.R.Civ.P. 8(a)(2) is to provide the
defendant with fair notice of what claim is being alleged, and the grounds upon
which it rests. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th
Cir. 2008) (citation omitted). We have held that, under Rule 8, a district court
should give pleadings a liberal reading when addressing a motion to dismiss for
failure to state a claim, particularly when the party is pro se, but the court is not
permitted to serve as a “de facto counsel” and “rewrite an otherwise deficient
pleading in order to sustain an action.” GJR Investments, Inc. v. County of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998).
The Supreme Court has held:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide
the “grounds” of his “entitle[ment] to relief” requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause
of action will not do. Factual allegations must be enough to raise a
right to relief above the speculative level on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964-65, 167 L.
ED. 2d 926 (2007) (internal citations omitted). Following Bell Atlantic, we held
that a pleading must contain enough facts that a reasonable expectation exists that
discovery will reveal evidence of the necessary elements, and it is sufficient that
the complaint identifies facts that are suggestive enough to render the necessary
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elements plausible. Watts v. Florida Int’l Univ., 495 F.3d 1289, 1295-96 (11th Cir.
2007).
We conclude from the record that the district court did not err in dismissing
the complaint for failing to state a claim, as Gonzalez did not allege specific facts
that supported his claims. Accordingly, we affirm the district court’s denial of
class certification and the judgment of dismissal.
AFFIRMED.
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