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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12844
Non-Argument Calendar
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D.C. Docket No. 9:20-cv-80756-DMM
ROBIN H. GUSTIN, an individual,
Plaintiff – Appellant,
versus
SUNTRUST BANK, a.k.a. Truist Bank,
CAPITAL ONE BANK (USA), N.A.,
WELLS FARGO BANK,
JP MORGAN CHASE BANK N.A.,
BANK OF AMERICA,
Defendants – Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 6, 2021)
Before JORDAN, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
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Robin Gustin, proceeding pro se, appeals the district court’s grant of the
motions to dismiss filed by Capital One, N.A., Wells Fargo Bank, N.A., Bank of
America, N.A., Truist Bank f/k/a SunTrust Bank, and JPMorgan Chase Bank, N.A.’s
as to her fraud claim. The district court dismissed with prejudice for failure to state
a claim and, alternatively, on the grounds of collateral estoppel. Because Ms. Gustin
failed to sufficiently allege damages, we affirm the district court’s dismissal for
failure to state a claim.
I
Ms. Gustin filed a pro se complaint in a Florida state court, which was
subsequently removed to federal court on the basis of diversity jurisdiction. Ms.
Gustin alleged in her complaint that the appellees, Capital One, Wells Fargo, Bank
of America, Truist, and JPMorgan Chase (“the Banks”), defrauded her. Her theory
of fraud was that the Banks were vicariously liable for fraud committed by two
nonparties, Parascript LLC and NCR Corporation, in a previous patent case between
Ms. Gustin’s company and NCR.
Ms. Gustin alleged that evidence was concealed in the patent case—
specifically, that NCR and Parascript classified certain documents during discovery
as “Highly Confidential”, which prevented her from viewing them. Though her own
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attorney was privy to these documents, Ms. Gustin claimed that if she had seen them
herself her patents might not have been invalidated. As to the Banks, Ms. Gustin
alleged that they are or were customers of NCR and that they therefore participated
in the fraud.
The Banks filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6),
arguing that the complaint was Ms. Gustin’s third attempt to litigate patent and fraud
claims.
The first attempt was the patent infringement case, filed by Ms. Gustin’s
company, Capital Security Systems, Inc., against NCR Corporation and Truist.
During discovery in that case, Capital Security served a third-party subpoena on
Parascript, which responded by authenticating a list of documents, some of which
were designated as “Highly Confidential” and “For Attorney’s Eyes Only.” This
prevented Ms. Gustin, but not her attorney from viewing them. Capital Security
ultimately lost the case, and its patents were invalidated.
After the patent litigation, Ms. Gustin and Capital Security filed a complaint
against NCR and Parascript, alleging fraud and civil rights violations on the theory
that they deceptively designated documents as “Highly Confidential” during
discovery in the patent case. See Gustin v. NCR Corporation, No. 19-cv-80291 (S.D.
Fla. Mar. 4, 2019), aff’d. Gustin v. Nicoll,
824 Fed. Appx. 875, 876 (11th Cir. Aug.
26, 2020) (“Gustin I”). In Gustin I, we affirmed the district court’s dismissal with
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prejudice of Ms. Gustin and Capital Security’s fifth amended complaint. The district
court there had found that the attorney’s knowledge of the “Highly Confidential”
documents was imputed to Capital Security, and that therefore Ms. Gustin could not
have been deprived of any information in those documents and could not have been
damaged.
In their motions to dismiss here, the Banks argued that Ms. Gustin was
collaterally estopped from raising her fraud claim, due to Gustin I. Alternatively,
the Banks argued that Ms. Gustin failed to sufficiently allege damages for the
reasons discussed above. The district court dismissed Ms. Gustin’s fraud claim with
prejudice. It held that collateral estoppel barred the claim because she alleged the
same fraudulent scheme that she previously challenged in Gustin I, and the only
difference between Gustin I and the present case was the identity of the defendants.
The district court also held, alternatively, that Ms. Gustin did not sufficiently plead
damages. (Id. at 4). Ms. Gustin appealed.
II
We review a district court ruling on a Rule 12(b)(6) motion de novo. See Hill
v. White,
321 F.3d 1334, 1335 (11th Cir. 2003). The complaint is viewed in the light
most favorable to the plaintiff, and all well-pleaded facts are accepted as true. See
id. In the case of a pro se litigant, the district court should construe the complaint
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more liberally than it would formal pleadings drafted by lawyers. See Powell v.
Lennon,
914 F.2d 1459, 1463 (11th Cir. 1990).
III
The district court did not err in dismissing Ms. Gustin’s complaint for failure
to state a claim. Under Florida law, the elements of common-law fraud are (1) a
false statement of fact; (2) known by the person making the statement to be false at
the time it was made; (3) made for the purpose of inducing another to act in reliance
thereon; (4) action by the other person in reliance on the correctness of the statement;
and (5) resulting damage to the other person. See, e.g., Gandy v. Trans World
Computer Tech. Group,
787 So. 2d 116, 118 (Fla. 2d D.C.A. 2001). Here, even
assuming that Ms. Gustin sufficiently alleged the first four elements of her fraud
claim, she did not sufficiently allege damages. “In Florida, ‘lawyers . . . are always
agents of their clients, and ‘knowledge of the agent constitutes knowledge of the
principal as long as the agent received such knowledge while acting within the scope
of his authority.” Gustin I, 824 Fed. Appx. at 878 (quoting Brooks Tropicals, Inc.
v. Acosta,
959 So. 2d 288, 295 (Fla. 3d D.C.A. 2007)). Her attorney’s knowledge
of the “Highly Classified” documents was imputed onto Ms. Gustin, and she
therefore was not deprived of any information that could have damaged her. That
was true with respect to her earlier claim against NCR and Parascript, and it is
likewise true with respect to her fraud claim against the Banks.
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IV
Accordingly, we conclude that the district court’s dismissal of Ms. Gustin’s
fraud claim with prejudice was correct.
AFFIRMED.
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