Maurice Symonette v. V.A. Leasing Corporation

Case: 14-15222 Date Filed: 04/15/2016 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 14-15222
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-23370-JEM

MAURICE SYMONETTE,
BOSS GROUP MINISTRIES,
FERRIS RHODES, JR.,

Plaintiffs-Appellants,

versus

V.A. LEASING CORPORATION,
EURO MOTORSPORTS SALES,
et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(April 15, 2016)
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Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:

Maurice Symonette and Ferris Rhodes, Jr. appeal the district court’s

dismissal of their complaint alleging that V.A. Leasing Corporation (“V.A.

Leasing”) and Euro Motor Sport, Inc. (“Euro”) defrauded them in connection with

a vehicle lease. On appeal, they argue that the district court erred in finding that

Symonette is not a real party in interest and in dismissing Rhodes, Jr.’s complaint

for failure to state a claim.

I.

We review our own jurisdiction de novo and must raise the issue sua sponte.

Finn v. Prudential-Bache Secur., Inc., 821 F.2d 581, 585 (11th Cir. 1987). Notices

of appeal must “designate the judgment, order, or part thereof being appealed.”

Fed. R. App. P. 3(c)(1)(B). Rule 3’s dictates are jurisdictional in nature, and their

satisfaction is a prerequisite to appellate review. Smith v. Barry, 502 U.S. 244,

248, 112 S. Ct. 678, 681, 116 L. Ed. 2d 678 (1992). However, it is contrary to the

spirit of the Federal Rules of Civil Procedure to avoid decisions on the merits on

the basis of mere technicalities such as an inept but effective notice of appeal.

Foman v. Davis, 371 U.S. 178, 181, 83 S. Ct. 227, 229, 9 L. Ed. 2d 222 (1962).

We liberally construe the requirements of Rule 3. Smith, 502 U.S. at 248, 112 S.

Ct. at 681. An appeal is not lost if a mistake is made in designating the judgment

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appealed from where it is clear that the overriding intent was effectively to appeal.

KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006). We

have liberally allowed appeals from orders not expressly designated in the notice

of appeal, at least where the order that was not designated was entered before the

order properly designated in the notice of appeal. Id.

Here, the notice of appeal explicitly states that the appeal is taken from the

denial of Symonette’s motion to reconsider—not the district court’s judgment.

However, it is evident from the notice that the overriding intent was to appeal the

district court’s judgment. Consistent with our liberal construction of Rule 3’s

requirements and of pleadings filed by pro se parties generally, we have

jurisdiction to review the district court’s judgment.

II.

We review de novo a district court’s ruling on a Rule 12(b)(6) motion. Hill

v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). When evaluating a motion to

dismiss, we look to see whether the complaint contains sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. Surtain v.

Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015). Further, in a pro

se action, we construe the complaint more liberally than we would pleadings

drafted by lawyers. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990).

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An action must be brought by the real party in interest. Fed. R. Civ. P.

17(a)(1). This rule protects the defendant against a subsequent action by the real

party in interest and ensures that judgments have res judicata effect. Steger v. GE,

318 F.3d 1066, 1080 (11th Cir. 2003). A real party in interest is “the party who, by

the substantive law, has the right sought to be enforced.” Lubbock Feed Lots, Inc.

v. Iowa Beef Processors, Inc., 630 F.2d 250, 257 (5th Cir. 1980).

Symonette is not a signatory to the lease at issue, which was signed by

Rhodes, Jr. and was intended for the benefit of Boss Group Ministries.

Symonette’s only alleged connections to the lease are that he gave Boss Group

Ministries some of the purchase money and that he serves as president of that

corporation. These connections are not sufficient to make him a real party in

interest to this case, and the district court correctly dismissed his complaint.

III.

As of December 1, 2014, when a party fails to object to a magistrate judge’s

report, we review only for plain error and only if necessary in the interests of

justice. 11th Cir. R. 3-1. Before that date, when a party failed to object, our

practice was to review the district court’s findings of fact for plain error and its

legal conclusions de novo. Dupree v. Warden, 715 F.3d 1295, 1300-1306 (11th

Cir. 2013) (criticizing, but applying, the rule announced in Nettles v. Wainwright,

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677 F.2d 404 (5th Cir. Unit B 1982)). Under plain error review, we can correct an

error only when (1) an error has occurred, (2) the error was plain, (3) the error

affected substantial rights, and (4) the error seriously affects the fairness, integrity

or public reputation of judicial proceedings. Farley v. Nationwide Mut. Ins. Co.,

197 F.3d 1322, 1329 (11th Cir. 1999).

The Truth in Lending Act (“TILA”) requires certain disclosures in credit

transactions and imposes liability for any failure to disclose a required fact. See In

re Smith, 737 F.2d 1549, 1551 (11th Cir. 1984). TILA explicitly does not apply to

“[c]redit transactions involving extensions of credit primarily for business,

commercial, or agricultural purposes.” 15 U.S.C. § 1603(1). Similarly, the

Consumer Leasing Act (“CLA”) applies only to a “consumer lease,” a term which

does not include “a lease for agricultural, business, or commercial purposes.” 15

U.S.C. § 1667(1).

Civil claims under the Racketeering Influenced and Corrupt Organizations

Act (“RICO”) must allege a “pattern of racketeering activity,” which requires at

least two predicate acts of racketeering activities as defined by 18 U.S.C.

§ 1961(1). Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1358

(11th Cir. 1985). Violations of the federal mail and wire fraud statutes are

racketeering activities. 18 U.S.C. § 1961(1). When a RICO claim is predicated on

an underlying crime of mail or wire fraud, the complaint must comply with the

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heightened pleading standard of Fed. R. Civ. P. 9(b). Am. Dental Ass’n v. Cigna

Corp., 605 F.3d 1283, 1291 (11th Cir. 2010). To avoid dismissal, the plaintiffs

must specify (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 plaintiffs; and (4) what the defendants

gained by the alleged fraud. Brooks v. Blue Cross and Blue Shield of Florida, Inc.,

116 F.3d 1364, 1380-81 (11th Cir. 1997). The purpose of this Rule is to ensure

that defendants are reasonably notified of the fraud alleged. Id. at 1381. In

addition, “[i]n a case involving multiple defendants . . . the complaint should

inform each defendant of the nature of his alleged participation in the fraud.”

Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1317 (11th Cir.

2007) (quotation omitted) (brackets and ellipsis in original).

Because the magistrate judge’s report and recommendation was issued

before Eleventh Circuit Rule 3-1 became effective and without Rhodes, Jr. being

informed of the consequences of Rule 3-1, we review the magistrate judge’s

findings of fact for plain error and legal conclusions de novo, notwithstanding

Rhodes, Jr.’s failure to object.

Here, Rhodes, Jr. has not shown that the district court erred in dismissing his

TILA and CLA claims because the lease of the Rolls Royce was for business rather

than consumer purposes. Rhodes, Jr. has also not shown that the district court

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erred in concluding that he had not pleaded his RICO claim with specificity. He

points to no allegations in his complaint that indicate what specific

communications were fraudulent. He also failed to allege the time, place, and

person responsible for the statements, the content, and manner in which these

statements misled the plaintiffs, or what the defendants gained by the alleged

fraud. The district court did not err in dismissing the TILA, CLA, and RICO

claims.

AFFIRMED.

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