Katrina Smith v. Ocwen Financial , 488 F. App'x 426 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15805
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-00484-AT
KATRINA SMITH,
llllllll llllllllllllllllllllllllllllllllPlaintiff-Appellant,
versus
OCWEN FINANCIAL,
lllllllllllllllllllllllllllllllllllllll
llllllll llllllllllllllllllllllllllllllllDefendant-Appellee,
MERS,
llllllllllllllllllllllllllllllllllllllll Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 30, 2012)
Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
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Katrina Smith appeals the dismissal of her complaints for failure to state a
claim upon which relief may be granted and the denial of her motion for
reconsideration. Upon review of the record and consideration of the parties’ briefs,
we affirm.
I
We review de novo a district court’s dismissal of a complaint for failure to state
a claim under Rule 12(b)(6). See Am. United Life Ins. Co. v. Martinez, 480 F.3d
1043, 1056-57 (11th Cir. 2007). The complaint is viewed in the light most favorable
to the plaintiff, and all of the plaintiff’s well-pleaded facts are accepted as true. Id.
at 1057. “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim of relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, a complaint that offers “a
formulaic recitation of the elements of a cause of action will not do,” and mere
conclusory statements in support of a threadbare recital of the elements of a cause of
action will not suffice. See id. at 678. Legal conclusions can provide a framework for
the complaint, but they must be supported by factual allegations. See id. at 679.
Federal Rule of Civil Procedure 8 requires that a “pleading that states a claim
for relief must contain . . . a short and plain statement of the claim showing that the
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pleader is entitled to relief,” and that “[e]ach allegation must be simple, concise, and
direct.” Fed.R.Civ.P. 8(a)(2), (d)(1). “[T]he statement need only give the defendant
fair notice of what the . . . claim is and the ground upon which it rests.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (ellipses in original). When alleging fraud, a plaintiff
must state with particularity the circumstances constituting fraud or mistake. See
Fed.R.Civ.P. 9(b). The particularity rule alerts defendants of the “precise misconduct
with which they are charged and protect[s] defendants against spurious charges of
immoral and fraudulent behavior.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194,
1202 (11th Cir. 2001) (quotations omitted). Under Rule 9(b), a plaintiff must allege:
“(1) the precise statements, documents, or misrepresentations made; (2) the time,
place, and person responsible for the statement; (3) the content and manner in which
these statements misled the [p]laintiffs; and (4) what the defendants gained by the
alleged fraud.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir.
2010).
Courts construe the pleadings of pro se litigants liberally. But this “does not
give a court license to serve as de facto counsel for a party . . . or to rewrite an
otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cnty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citation omitted), overruled on
other grounds by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).
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II
Ms. Smith appeals from the district court’s denial of her motion for
reconsideration of its order granting Ocwen’s motion to dismiss her amended
complaint. In her brief, Ms. Smith broadly asserts that her amended complaint met
the requirements of Rule 8. She says that the district court improperly applied a
heightened pleading requirement above what is required by Rule 8, and was more
lenient with Ocwen’s pleadings than with her pleadings. Ms. Smith also argues that
the statutes of limitations relevant to her claims were tolled by the fiduciary
relationship between herself and Ocwen and were extended by the Fraud Enforcement
and Recovery Act.
A
We review a denial of a motion for reconsideration for abuse of discretion. See
Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010). The only grounds for
granting a motion for reconsideration are newly-discovered evidence or manifest
errors of law or fact. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). A
motion for reconsideration cannot be used to relitigate old matters, raise arguments,
or present evidence that could have been raised prior to the entry of judgment. See
id. A review of the motion for reconsideration reveals that Ms. Smith stated no
permissible grounds for reconsideration. The district court therefore properly denied
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her motion.
B
Although the notice of appeal indicates only that Ms. Smith is appealing the
district court’s denial of her motion for reconsideration, Ms. Smith in her brief
challenges the district court’s initial dismissal of all of her claims. As a preliminary
matter, we may review the district court’s dismissal of Smith’s complaints based on
her appeal of the denial of her motion for reconsideration. See Kirkland v. Nat'l
Mortgage Network, Inc., 884 F.2d 1367, 1369-70 (11th Cir. 1989).
Ms. Smith’s federal claims under TILA, HOEPA, RESPA, and for TILA
recision, and her state claim under GFLA are all barred by the applicable statutes of
limitation. All the alleged acts that form the basis for the claims occurred in 2002,
and Ms. Smith filed her complaint in 2011, well after the statutes of limitation had run
on those claims. See La Grasta v. First Union Securities, Inc., 358 F.3d 840, 845–46
(11th Cir. 2004) (holding that a Rule 12(b)(6) dismissal on statute of limitations
grounds is appropriate “if it is apparent from the face of the complaint that the claim
is time-barred”).
Ms. Smith raises for the first time on appeal an argument that the Fraud
Enforcement and Recovery Act, Pub. L. 111-21 (2009), extended the statutes of
limitations pertinent to her claims. In civil cases, we generally do not consider
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arguments raised for the first time on appeal. See Ledford v. Peeples, 657 F.3d 1222,
1258 (11th Cir. 2011). Accordingly, we do not review this argument. Furthermore,
the statutes of limitations for Ms. Smith’s claims were not tolled because Georgia law
does not recognize a fiduciary relationship between Ocwen and Ms. Smith. See
Baxter v. Fairfield Fin. Servs., Inc., 307 Ga. App. 286, 293, 704 S.E.2d 423, 429
(2010).
For the claims alleging fraudulent conduct–i.e., the claims for fraud, collusion,
and negligent misrepresentation–Ms. Smith fails to plead with particularity the
actions of Ocwen that form the basis of those claims as required by Rule 9(b).
Accordingly, the district court properly dismissed these claims.
With respect to the remaining claims, as the magistrate judge’s report and
recommendation explains in great detail, Ms. Smith fails to meet the pleading
standard required by Rule 8. The allegations in her complaint set forth only a “jumble
of (often conflicting) factual assertions as well as general legal arguments that do not
add up to coherent or plausible claims for relief.” R 1: 22 at 2. Accordingly, the
district court correctly concluded that Ms. Smith failed state a claim, even under the
liberal rules of construction allowed for pro se litigants.
III
The district court did not err in dismissing Ms. Smith’s complaints in any of the
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ways that she alleges. The district court also did not abuse its discretion in denying
the motion for reconsideration because Ms. Smith did not raise proper grounds for
reconsideration.
AFFIRMED.
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