Shuler v. Ingram & Associates

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14509 SEP 29, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________

D.C. Docket No. 2:08-cv-01238-AKK
ROGER SHULER,
CAROL SHULER,

Plaintiffs-Appellants,

versus

INGRAM & ASSOCIATES,
NCO FINANCIAL SYSTEMS, INC.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
________________________

(September 29, 2011)

Before MARCUS, WILSON and BLACK, Circuit Judges.

PER CURIAM:
 Roger and Carol Shuler (“the Shulers”), proceeding pro se, appeal the district

court’s order granting the summary judgment motions of defendants Ingram &

Associates (“Ingram”) and NCO Financial Systems, Inc. (“NCO”) on all claims raised

in the Shulers’s complaint as amended, which alleged violations of the Fair Debt

Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and various torts

under Alabama law. On appeal, the Shulers argue that: (1) the district court

procedurally erred by not holding a hearing before ruling on the summary judgment

motions, granting summary judgment while discovery issues remained unresolved,

and failing to consider evidence in the light most favorable to the Shulers; (2) the

district court substantively erred in finding that the defendants did not violate the

FDCPA, 15 U.S.C. §§ 1692g, 1692d(2), 1692d(5), 1692e and e(4)-(5), and 1692f; and

(3) the district court erred in finding that the Shulers’s Alabama tort law claims -- for

fraud, invasion of privacy, defamation, and wanton failure to train and supervise

employees -- failed. After thorough review, we affirm.1

1
As a threshold matter, we note that we are obligated to examine our own jurisdiction sua
sponte. Finn v. Prudential-Bache Securities, Inc., 821 F.2d 581, 585 (11th Cir. 1987).
Fed.R.App.P. 3(c)(1)(B) requires that a notice of appeal “designate the judgment, order, or part
thereof being appealed.” Ordinarily, the failure to abide by this requirement will preclude that
appellate court from reviewing any judgment or order not so specified. McDougald v. Jenson,
786 F.2d 1465, 1474 (11th Cir. 1986). However, when the “overriding intent was effectively to
appeal” the original judgment, a notice of appeal stating that it appeals from an order on a tolling
post-judgment motion must be construed as an appeal from the original judgment and not merely
from the denial of the post-judgment motion. Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734,
738 n.1 (5th Cir. 1980) (quotation omitted). (In Bonner v. City of Prichard, 661 F.2d 1206, 1209

2
 We review de novo the district court’s grant of summary judgment. Holloman

v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary judgment is

appropriate when the evidence, viewed in the light most favorable to the non-moving

party, presents no genuine issue of fact and compels judgment as a matter of law. Id.

at 836-37; Fed.R.Civ.P. 56. “A party opposing a properly submitted motion for

summary judgment may not rest upon mere allegation or denials of his pleadings, but

must set forth specific facts showing that there is a genuine issue for trial.” Eberhardt

v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990) (quotation and brackets omitted).

Speculation or conjecture cannot create a genuine issue of material fact. Cordoba v.

Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). Thus, summary judgment is

proper “against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

We may affirm a summary judgment “if there exists any adequate ground for doing

(11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to October 1, 1981)).

Here, the Shulers’s notice of appeal indicated that they only sought review of the district
court’s denial of their Rule 59(e) motion. Despite the Shulers’s failure to abide by Fed.R.App.P.
3(c)(1)(B), we have jurisdiction to review the district court’s summary judgment orders because
we construe the Shulers’s notice as an effective appeal from the summary judgment orders, given
that the Shulers are proceeding pro se and clearly intended to appeal them. See Kicklighter, 616
F.2d at 738 n.1.

3
so, regardless of whether it is the one on which the district court relied.” Fitzpatrick

v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir. 1993). “It is [also] well settled in this

circuit that Rule 56(c) does not require an oral hearing.” Milburn v. United States,

734 F.2d 762, 765 (11th Cir. 1984).

The Supreme Court has held that where a summary judgment motion was not

filed until one year after the action commenced and where the parties had conducted

discovery, the respondent could make “no serious claim . . . that [it] was ‘railroaded’

by a premature motion for summary judgment.” Celotex Corp., 477 U.S. at 326.

“Any potential problem with such premature motions can be adequately dealt with

under Rule 56(f).” Id. Rule 56(f) provides that “[i]f a party opposing the [summary

judgment] motion shows by affidavit that, for specified reasons, it cannot present

facts essential to justify its opposition, the court may . . . order a continuance to

enable affidavits to be obtained, depositions to be taken, or other discovery to be

undertaken.” Fed.R.Civ.P. 56(f)(2).2 “The presence of [R]ule 56(f) shows that [an]

appellant’s argument that it is per se improper to grant summary judgment without

providing the opponent an opportunity to conduct discovery is without merit.”

2
Subsequent to the 2010 amendments, which became effective after the entry of
judgment in this case, this provision is now embodied by Fed.R.Civ.P. 56(d) (“If a nonmovant
shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to
justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to
obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”).

4
Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 844 (11th Cir. 1989). Because

“[c]ourts cannot read minds, . . . ‘the party opposing the motion for summary

judgment bears the burden of calling to the district court’s attention any outstanding

discovery.’” Id. (quotation omitted).

First, we reject the Shulers’s argument that the district court procedurally erred

in granting summary judgment to the defendants. For starters, because Rule 56(c)

does not require an oral hearing, the district court did not procedurally err in failing

to hold a hearing. Nor were the Shulers railroaded by a premature summary judgment

motion. As the record shows, the Shulers initially filed suit in July 2008, the

discovery period closed on October 30, 2009, and both defendants filed summary

judgment motions by November 30, 2009. The Shulers never sought a continuance

pursuant to Fed.R.Civ.P. 56(f), the absence of which renders the Shulers’s argument

meritless. Although the Shulers footnoted in their counseled oppositions to the

summary judgment motions that they had ongoing discovery issues with NCO and

Ingram, these issues appeared to relate only to the alleged agency relationship

between the defendants, a relationship the district court treated as true anyway.

In addition, we will not consider the Shulers’s claim that the district court did

not construe the evidence in the light most favorable to them because they failed to

5
specify in their brief when and how the district court failed to do so.3 In any event,

the district court used the correct summary judgment standard, explicitly stating on

3
We recognize that “[p]ro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.” Boxer X v. Harris, 437 F.3d
1107, 1110 (11th Cir. 2006) (quotation omitted). However, the leniency afforded pro se litigants
does not give courts license to serve as de facto counsel or to rewrite an otherwise deficient
pleading in order to sustain an action. GJR Inv., Inc. v. County of Escambia, Fla., 132 F.3d
1359, 1369 (11th Cir. 1998), overruled on other grounds as recognized in, Randall v. Scott, 610
F.3d 701, 709 (11th Cir. 2010). We deem abandoned issues not briefed on appeal by a pro se
litigant. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Further, an issue is considered
abandoned when “a party seeking to raise a claim or issue on appeal [fails to] plainly and
prominently so indicate.” United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

Further, “absent extraordinary circumstances, legal theories and arguments not raised
squarely before the district court cannot be broached for the first time on appeal.” Bryant v.
Jones, 575 F.3d 1281, 1308 (11th Cir. 2009), cert. denied, 130 S.Ct. 1536 (2010). We will not
decide an issue or argument not adequately presented to the district court, which may include a
failure to cite supporting authority. Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1352 (11th
Cir. 2009); Access Now, Inc. v. SW Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). “In
deciding issues on appeal we consider only evidence that was part of the record before the district
court.” Selman v. Cobb Cnty. Sch. Dist., 449 F.3d 1320, 1332 (11th Cir. 2006).

On appeal, not only have the Shulers abandoned the argument that the district court failed
to construe the evidence in their favor, but they also have abandoned their § 1692e(4) claim
because they failed to brief it fully; their claim that Ingram could not legally sell their house per §
1692e(5) because they provided this Court with no supporting legal authority that a debt collector
is prohibited from suing a debtor and selling the debtor’s house; their § 1692f claim because they
failed to meaningfully argue it on appeal and to raise it sufficiently before the district court; their
claim that Ingram falsely represented under Alabama law that it legally could sell their house
because they failed to cite authority to the district court or this Court showing that Ingram could
not pursue collection remedies against their house; their claim that Ingram invaded their privacy
when it improperly contacted Mrs. Shuler, a non-party to the debt, improperly gathered
information, and made an unlawful threat because they raised these arguments for the first time
on appeal; and their defamation claim because they failed to meaningfully argue it on appeal and
to raise it sufficiently before the district court. (And in any event, the Shulers’s defamation claim
is meritless since they admitted below that neither defendant reported their debt to a credit
bureau.) Moreover, because the Shulers did not brief an argument on the district court’s denial
of their Rule 59(e) motion, they have abandoned this issue.

6
two occasions in each opinion that it construed the evidence of record in the light

most favorable to the non-moving party -- the Shulers.

Next, we are unpersuaded by the Shulers’s argument that the district court

substantively erred in finding that the defendants did not violate various sections of

the FDCPA, including 15 U.S.C. §§ 1692g, 1692d(2), 1692d(5), and 1692e(5).

Under § 1692g, a debt collector must communicate to the debtor, either in the initial

communication or within five days after the initial communication, information that

includes the following: (1) the amount of the debt; (2) the name of the creditor to

whom the debt is owed; and (3) statements regarding the consumer’s right to dispute

the debt, obtain verification of the debt, or obtain the name and address of the original

creditor. 15 U.S.C. § 1692g(a).

Here, the district court correctly found that Ingram complied with § 1692g(a).

The record shows that, on July 9, 2007, the same day that Ingram first attempted

telephone contact with Mr. Shuler, Ingram mailed him a document entitled

“Instructions for Making Payment or Disputing the Debt,” which fully complied with

§ 1692g(a). Notably, Mr. Shuler responded to this very document in order to dispute

the debt. Moreover, the Shulers judicially admitted these facts because their

opposition to Ingram’s summary judgment motion did not controvert Ingram’s twelfth

7
undisputed fact -- that Ingram mailed Mr. Shuler an initial demand letter containing

the requisite information on July 9, 2007.4

Under § 1692d(2), a debt collector is prohibited from “engag[ing] in any

conduct the natural consequence of which is to harass, oppress, or abuse any person

in connection with the collection of a debt,” including “[t]he use of obscene or

profane language or language the natural consequence of which is to abuse the

hearer.” 15 U.S.C. § 1692d(2). This subsection “was meant to deter offensive

language which is at least akin to profanity or obscenity . . . [and that] might

encompass name-calling, racial or ethnic slurs, and other derogatory remarks which

are similar in their offensiveness to obscene or profane remarks.” Jeter v. Credit

Bureau, Inc., 760 F.2d 1168, 1178 (11th Cir. 1985). Claims under § 1692d “should

be viewed from the perspective of a consumer whose circumstances makes him

relatively more susceptible to harassment, oppression, or abuse.” Id. at 1179. A debt

collector’s simple warning that a lawsuit may cause a consumer “‘embarrassment,

inconvenience, and further expense’ is a true statement . . . [and] does not create a

tone of intimidation.” Id. (quotation omitted). “Such consequences of a debt

4
Further, we will not review Mrs. Shuler’s deposition because the Shulers never
submitted it to the district court. Indeed, the Shulers even stated that they did not submit the
deposition because it was unnecessary to create genuine issues of material fact. Also, because
the Shulers failed to file the deposition simultaneously with their oppositions to summary
judgment, they waived their rights per the Uniform Initial Order entered by the district court on
August 26, 2009.

8
collection [] lawsuit are so commonplace that even a consumer susceptible to

harassment, oppression, or abuse would not have been harassed, oppressed, or abused

by the statement in and of itself.” Id. (emphasis in original).

As applied here, Ingram did not engage in abusive conduct or use abusive

language. The transcripts of these calls show that Ingram’s employees merely

explained to Mr. Shuler the potential consequences that he faced if he failed to pay

his debt and Ingram filed suit against him and obtained a favorable judgment --

namely, placing a lien on his property, selling the deed to his house, and garnishing

up to 25% of his disposable income. Ingram’s statements therefore involved

“commonplace” consequences of a debt collection lawsuit, and the Shulers have not

established otherwise. Moreover, even crediting the Shulers’s allegations that

Ingram’s employees were “testy,” “abusive,” and “smart-alecky,” the employees’

conduct resulted from Mr. Shuler’s persistent claims that they had to help him take

on lawyers and judges in an unrelated matter. In fact, only Mr. Shuler used obscene

language.

Under § 1692d(5), a debt collector is prohibited from “[c]ausing a telephone

to ring or engaging any person in telephone conversation repeatedly or continuously

with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. §

1692d(5). However, Ingram’s five telephone calls to the Shulers, including one

9
successful contact with Mr. Shuler that lasted for less than five minutes and two

voicemail messages, do not amount to repeated or continuous attempts to annoy,

abuse, or harass the Shulers. Moreover, Ingram did not violate § 1692d(5) by calling

Mr. Shuler after Mr. Shuler had told Ingram not to do so. As the record shows, Mr.

Shuler effectively nullified this prior instruction when he subsequently called Ingram

to speak about the debt, thereby giving Ingram a reasonable basis to call him again.

Under § 1692e, a debt collector is prohibited from using “any false, deceptive,

or misleading representation or means in connection with the collection of any debt.”

15 U.S.C. § 1692e. We apply the “least-sophisticated consumer” standard to evaluate

whether a debt collector’s communication violates 15 U.S.C. § 1692e. See LeBlanc

v. Unifund CCR Partners, 601 F.3d 1185, 1193 (11th Cir. 2010).

It is also worth noting that “a party is bound by the admissions in his

pleadings.” Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d

618, 621 (11th Cir. 1983). “[J]udicial admissions are proof possessing the highest

possible probative value . . . [and] are facts established not only beyond the need of

evidence to prove them, but beyond the power of evidence to controvert them.” Hill

v. Fed. Trade Comm’n, 124 F.2d 104, 106 (5th Cir. 1941). A party cannot avoid the

consequences of the acts or omissions of his voluntarily selected “lawyer-agent.”

Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962).

10
 Here, the Shulers’s false representation claim is without merit. The district

court properly granted summary judgment in Ingram’s favor because the Shulers

admitted that facts 1 through 13 in Ingram’s summary judgment motion were

undisputed. Thus, the Shulers judicially admitted the facts that Mr. Shuler had a debt

with American Express, that American Express placed the debt with NCO for

collection, that NCO referred the past due debt to Ingram, a debt collector, and that

American Express retained Ingram as legal counsel. In addition, the Shulers’s related

argument -- that they should not be held responsible for their former attorneys’

admissions in their opposition brief -- is without merit because a litigant is generally

bound by all acts and omissions of his attorney. See id.

Section 1692e also prohibits a debt collector from making a “threat to take any

action . . . that is not intended to be taken.” 15 U.S.C. § 1692e(5). A claim raised

under § 1692e(5) “requires proof of a fact which amounts to a per se violation [and

the] sophistication, or lack thereof, of the consumer is irrelevant to whether [the debt

collector] threatened to take any action that was not intended to be taken.” Jeter, 760

F.2d at 1175 (quotation, brackets and ellipses omitted).

In Jeter, we considered whether a debt collector falsely threatened to take legal

action in the immediate or near future. Id. We determined that a jury could

reasonably find that a debt collector’s letters to a debtor that referenced a five-day

11
period preceding the recommendation of a lawsuit against the debtor were indicative

of a threat to recommend legal action immediately upon the expiration of the five-day

period or shortly thereafter if the alleged debt was not paid. Id. at 1176. Jeter also

concluded that a genuine issue of fact existed as to whether the debt collector ever

intended to recommend legal action against the debtor. Id. at 1177. We reasoned, in

part, that the debt collector’s “conclusory affidavit” that it indeed intended to take

legal action was not dispositive, especially in light of the small percentage of its debt

collection efforts that had resulted in suit. Id.

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009).

The complaint need not include detailed factual allegations, but must set forth “more

than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The district court properly granted summary judgment in favor of defendants

with respect to § 1692e(5). Even though Ingram never filed suit against Mr. Shuler,

§ 1692e contains no provision that filing a lawsuit is the only way for a debt collector

to establish that it actually had intended to file a lawsuit. Moreover, not only was

there a reasonable likelihood that Ingram, a lawyer and debt collector, would indeed

12
sue the Shulers, but the Shulers have not presented evidence to show that Ingram

secretly never intended to sue or has only sued on rare occasions. Thus, the Shulers’

speculation as to Ingram’s underlying intentions was insufficient to raise a genuine

issue of material fact.

We also reject the Shulers’s argument that the district court erred in finding

that the Shulers’s Alabama tort law claims -- for fraud, invasion of privacy, and

wanton failure to train and supervise employees -- failed. To establish a false

misrepresentation (or fraud) claim under Ala. Code § 6-5-101, the plaintiff must show

“(1) a false representation (2) concerning a material existing fact (3) relied upon by

the plaintiff (4) who must be damaged as a proximate result.” Cherokee Farms, Inc.

v. Fireman’s Fund Ins. Co., 526 So. 2d 871, 875 (Ala. 1988) (quotation omitted). In

Bosarge Offshore, LLC v. Compass Bank, 943 So. 2d 782, 786-88 (Ala. 2006), the

Alabama Supreme Court concluded that the customer did not detrimentally rely on

the bank’s allegedly fraudulent letter of credit issued to the customer for the

customer’s new business, because the customer had already entered into a new

business arrangement before the bank issued the letter and presented no evidence of

harm stemming from reliance on a misrepresentation. 943 So.2d at 786-88.

Here, the Shulers’s fraud claim -- based on Ingram’s statement that it was hired

by American Express -- fails in light of their admission on summary judgment that

13
American Express retained Ingram as legal counsel, so the Shulers have conceded this

fact and are bound. Moreover, mere consultation with a bankruptcy lawyer -- whom

the Shulers did not retain -- does not amount to detrimental reliance on a creditor’s

claims. Further, the Shulers presented no specific facts concerning any anguish or

distress that would raise a genuine issue for trial. In fact, Mr. Shuler testified that he

was already taking medication for depression and anxiety prior to Ingram’s debt

collection efforts, and that his doctor did not increase his dosage on account of the

debt issue.

As for the invasion of privacy claim, the Alabama Supreme Court has

“recognized the right of a creditor to take reasonable action to pursue a debtor and

collect a debt.” Jacksonville State Bank v. Barnwell, 481 So.2d 863, 865 (Ala. 1985).

However, when a creditor’s actions “exceed the bounds of reasonableness,” the

debtor may bring a claim for invasion of privacy. Id. at 865-66 (finding, in part, that

28 to 35 phone calls to one’s home and place of employment fall within the realm of

a “systematic campaign of harassment”). In the debtor-creditor context, invasion of

privacy has been characterized as “the wrongful intrusion into one’s private activities

in such a manner as to outrage or cause mental suffering, shame or humiliation to a

person of ordinary sensibilities.” Id. at 865 (quotation omitted).

14
 In this case, the district court properly found that Ingram did not invade the

Shulers’s privacy because Ingram had the right to make reasonable efforts to collect

the debt and the single telephone conversation with Mrs. Shuler about payment

arrangements and the legal consequences of not paying the debt did not exceed the

bounds of reasonableness. Although Mrs. Shuler became hysterical during the call,

the Shulers offered no specific facts showing that Ingram was attempting by

harassment to coerce her into payment arrangements or to frighten her with the

prospect of selling the Shulers’s house. Thus, the Shulers failed to show how this

conversation wrongfully would cause mental suffering or humiliation to a person of

ordinary sensibilities.

Finally, a party alleging wanton defects in training and supervision must prove

the underlying wrongful conduct of employees. See Voyager Ins. Cos. v. Whitson,

867 So.2d 1065, 1073 (Ala. 2003); Thrasher v. Ivan Leonard Chevrolet, Inc., 195

F.Supp.2d 1314, 1320 (N.D. Ala. 2002) (“[T]he plaintiff must establish that the

allegedly incompetent employee committed a common-law, Alabama tort.”).

Alabama law defines “wantonness” as “[c]onduct which is carried on with a reckless

or conscious disregard of the rights or safety of others.” Ala. Code § 6-11-20(b)(3).

“‘Wanton supervision’ requires that the employer wantonly disregard its agent’s

15
incompetence.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665, 682

(Ala. 2001).

Here, the Shulers’s wanton and reckless supervision and training claim fails as

a matter of law because they have failed to establish that Ingram’s employees

committed any tort under Alabama law -- including fraud, invasion of privacy, or

defamation -- as discussed above. Likewise, their argument that the district court

deprived them from making the claim by foreclosing discovery is without merit,

since, as we found above, the Shulers never sought a continuance to pursue discovery.

AFFIRMED.

16