Harry L. Danow v. David E. Borack

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 19, 2006
No. 06-12088
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________

D. C. Docket No. 05-61562-CV-TEB

HARRY L. DANOW,

Plaintiff-Appellant,

versus

DAVID E. BORACK,
THE LAW OFFICE OF DAVID E. BORACK, P.A.,

Defendants-Appellees.

________________________

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

(September 19, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
Harry L. Danow appeals the magistrate judge’s orders dismissing with

prejudice, for failure to state a claim, his complaint alleging violations of the Fair

Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1601 et seq., against David

E. Borack and The Law Office of David E. Borack, P.A. (collectively, “Borack”), and

denying his motion to alter or amend the judgment.1 On appeal, Danow argues the

magistrate judge erred by sua sponte dismissing his claims under 15 U.S.C. §§ 1692c

and 1692d.2 After careful review, we vacate and remand for further proceedings

consistent with this opinion.

The relevant facts are straightforward. On September 26, 2005, Danow filed

this suit alleging various violations of the FDCPA relating to Borack’s attempts to

collect a consumer debt, in the amount of $1,942.41, on behalf of a client. Borack

moved to dismiss all counts of the complaint, except for the claims asserting FDCPA

violations under 15 U.S.C. §§ 1692c and 1692d based on certain phone calls

1
The parties consented to the jurisdiction of the magistrate judge to try this matter, pursuant
to 28 U.S.C. § 636(c).
2
Danow also argues that his complaint, as clarified in his response to Defendants’ motion to
dismiss, stated claims under §§ 1692c and 1692d. Although we agree that the sua sponte dismissal
was in error, we decline to reach the issue of whether, in fact, Danow has stated a claim. Instead,
we leave it to the magistrate judge to make this determination in the first instance, after providing
Danow with notice and an opportunity to respond, as further discussed in our analysis below.

Danow does not challenge the district court’s dismissal of his claims under 15 U.S.C. §§
1692e, 1692f, or 1692g. Accordingly, he has abandoned any argument concerning the dismissal of
those claims. See Fogade v. ENB Revocable Trust, 263 F.3d 1274, 1296 n. 19 (11th Cir. 2001).

2
concerning the consumer debt. In the complaint, Danow had alleged he requested

Borack, in a letter dated October 14, 2004, to cease communications with him

concerning the consumer debt and that, subsequent to that date, Danow contacted him

concerning the debt, on numerous occasions by phone. As to the claims under §§

1692c and 1692d, rather than moving to dismiss them for failure to state a claim,

Borack moved for a more definite statement, pursuant to Rule 12(e) of the Federal

Rules of Civil Procedure, asserting that the complaint did not allege sufficient facts

concerning the timing of the alleged phone calls.

In his Opposition to the motion for a more definite statement, Danow argued

that the FDCPA did not require him to allege the specific dates of the phone calls so

long as the calls came after his written request to Borack. Borack then filed a Reply

to Danow’s Opposition, in which he (Borack) responded only to Danow’s arguments

in opposition to the motion to dismiss the other counts, but did not respond to

Danow’s arguments in opposition to the motion for a more definite statement as to

the claims under §§ 1692c and 1692d. Borack stated: “[a]ny of Plaintiff’s arguments

not addressed herein are omitted so as to not reargue Defendants’ Motions in

compliance with the local rules and for each such argument the Defendants refer to

Court back to the Motions themselves.”

3
The district court granted Borack’s motion to dismiss, addressing the parties’

arguments concerning the claims for which Borack sought dismissal for failure to

state a claim. On the last page of the order, in footnote 4, the court said: “The Court

finds plaintiff’s allegations with respect to alleged telephone calls insufficient to state

a cause of action under 15 U.S.C. § 1692c. Accordingly, plaintiff’s allegations with

respect to this claim are dismissed thereby rendering it unnecessary to address

defendant’s motion for a more definite statement.” To the extent Danow asserted a

claim under § 1692d, the district court did not mention the claim or otherwise analyze

it. The district court dismissed the case with prejudice.

Danow then moved to alter or amend the judgment, pursuant to Rule 59(e) of

the Federal Rules of Civil Procedure, highlighting that the court had not addressed

the § 1692d claim. He also argued that he had not had the opportunity to address the

underlying merits of the § 1692d claim prior to its dismissal because Borack never

asserted that he had failed to state a claim under that section, instead only asking for

a more definite statement. The district court denied Danow’s motion to alter or

amend “except to the extent that footnote 4 of this Court’s January 24, 2006 Order is

hereby amended to further include the finding that plaintiff’s allegations with respect

to alleged telephone calls are insufficient to state a cause of action for harassment

under 15 U.S.C. § 1692d.” This appeal followed.

4
On appeal, Danow argues the district court erred when, in the course of

deciding Borack’s motion to dismiss the other claims, the court also reached the issue

of whether the complaint stated claims under §§ 1692c and 1692d, for which Borack

did not seek dismissal and asked only for a more definite statement of the underlying

facts. Danow says that the sua sponte dismissal was erroneous because (1) Borack

had not yet filed an answer and thus, under Federal Rule of Civil Procedure 15(a),

Danow was still free to amend the complaint as of right; (2) the §§ 1692c and 1692d

claims were brought in good faith and were not vexatious or patently frivolous; and

(3) the district court provided him with no notice of its intent to dismiss the §§ 1692c

and 1692d claims, despite that Borack had not asked for such a remedy. Borack

responds that Danow had sufficient notice of the possibility that the claims would be

dismissed by virtue of Borack’s motion for a more definite statement.

Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a

“short and plain statement of the claim” that shows that the pleader is entitled to

relief. Fed. R. Civ. P. 8(a)(2). Federal Rule of Civil Procedure 10(b), in turn,

requires that the allegations of a claim “shall be made in numbered paragraphs, the

contents of each of which shall be limited as far as practicable to a statement of a

single set of circumstances . . . [and][e]ach claim found upon a separate transaction

or occurrence . . . shall be stated in a separate count.” Fed. R. Civ. P. 10(b).

5
The failure to identify claims with sufficient clarity to enable the defendant to

frame a responsive pleading constitutes a “shotgun pleading.” Byrne v. Nezhat, 261

F.3d 1075, 1129-30 (11th Cir.2001). We have explained that, because “shotgun”

pleadings present an unfair burden on a defendant, the plaintiff should be required to

provide a more definite statement of his complaint:

[I]t is virtually impossible to know which allegations of fact are intended
to support which claim(s) for relief. Under the Federal Rules of Civil
Procedure, a defendant faced with a [shotgun] complaint . . . is not
expected to frame a responsive pleading. Rather, the defendant is
expected to move the court, pursuant to Rule 12(e), to require the
plaintiff to file a more definite statement. Where . . . the plaintiff asserts
multiple claims for relief, a more definite statement, if properly drawn,
will present each claim for relief in a separate count, as required by Rule
10(b), and with such clarity and precision that the defendant will be able
to discern what the plaintiff is claiming and to frame a responsive
pleading. Moreover, with the shotgun pleading out of the way, the trial
judge will be relieved of “the cumbersome task of sifting through myriad
claims, many of which [may be] foreclosed by [various] defenses.”

Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366-67 (11th

Cir. 1996) (footnote omitted)(quoting Fullman v. Graddick, 739 F.2d 553, 557 (11th

Cir. 1984)).

Here, to the extent Danow’s §§ 1692c and 1692d claims were akin to “shotgun

pleadings” -- that is, Borack argued he was unable to file a responsive pleading

because the complaint’s allegations concerning the phone calls were ambiguous --

Borack’s moved for a more definite statement as to those claims -- a course consistent

6
with our precedent. Id. ; see also Barnett v. Bailey, 956 F.2d 1036, 1043 (11th Cir.

1992) (“[W]here . . . a complaint may not have contained sufficient information to

allow a responsive pleading to be framed, ‘a district court should give a plaintiff an

opportunity to amend his complaint rather than dismiss it when it appears that a more

carefully drafted complaint might state a claim upon which relief could be granted.’”

(quoting Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985))). However,

Borack did not request dismissal of the §§ 1692c and 1692d claims and thus, the

district court’s order dismissing these claims for failure to state a claim was entered

sua sponte.

In Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524

(11th Cir.1983), we specifically prohibited such a sua sponte dismissal in the

following circumstances: (1) the defendant had not filed an answer and, thus, the

plaintiff still had a right under Fed. R. Civ. P. 15(a) to amend the complaint; (2) the

plaintiff’s claim was brought in good faith and was not vexatious or patently

frivolous; and (3) the district court had provided the plaintiff with neither notice of

its intent to dismiss the complaint nor an opportunity to respond. Id. at 527; cf.

Neitzke v. Williams, 490 U.S. 319, 330 n. 8 (1989) (declining to decide whether a

district court possesses the ability to sua sponte dismiss a complaint under Rule

7
12(b)(6)).3 All of the foregoing factors are present here.4 Accordingly, pursuant to

our controlling case precedent, we reverse and remand the district court’s sua sponte

dismissal of the §§ 1692c and 1692d claims. On remand, the district court must

provide notice of its intent to dismiss the claims for failure to state a claim and an

opportunity for Danow to respond prior to dismissing the claims.

REVERSED AND REMANDED.

3
On the record before us, we discern no indication, and Borack does not contend, that the
exception to this rule, for frivolous or vexatious suits, applies here.
4
We are unpersuaded by Borack’s assertion that Danow had notice that his entire complaint
could be dismissed, by virtue of Borack’s motion for a more definite statement. In fact, we find just
the opposite to be true. Given Borack’s decision to ask for a different remedy as to the §§ 1692c and
1692d claims -- a more definite statement, rather than dismissal -- and to isolate and treat those
claims differently, it would be perfectly reasonable for Danow to think that Borack did not seek
dismissal of those claims.