[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-15082 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 31, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-03530-AT
CARLTON HACKETT,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
COLUMBIA EQUITIES, LTD.,
INDYMAC FEDERAL BANK,
ONE WEST BANK FSB,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 31, 2012)
Before CARNES, BARKETT, and ANDERSON, Circuit Judges.
PER CURIAM:
Carlton Hackett, proceeding pro se, filed a lawsuit against three financial
companies asserting a variety of state and federal claims related to a mortgage
contract. The district court dismissed the claims against Columbia Equities, Ltd.
and IndyMac Federal Bank for improper service, and it dismissed the claims
against One West Bank because they were either time barred or failed to state a
claim upon which relief could be granted. This is Hackett’s appeal.
I.
“If a defendant is not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time.” Fed. R. Civ. P. 4(m). We review only for an abuse of
discretion the sua sponte dismissal of a complaint for failure to comply with Rule
4(m). Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010).
Hackett did not serve Columbia Equities and IndyMack within 120 days of
filing his complaint even though the district court twice warned Hackett that if he
did not properly serve those defendants it would dismiss his claims against them.
The district court’s decision to dismiss the claims instead of giving Hackett a third
warning was not an abuse of discretion.
II.
2
With the claims against Columbia Equities and IndyMack dismissed, all that
remained were Hackett’s claims against One West, which the district court
dismissed because they failed to state a claim under Federal Rule of Civil
Procedure 12(b)(6) or because they were time barred. “We review de novo the
district court’s grant of a motion to dismiss under 12(b)(6) for failure to state a
claim, accepting the allegations in the complaint as true and construing them in the
light most favorable to the plaintiff.” Clark v. Riley, 595 F.3d 1258, 1264 (11th
Cir. 2010). We also review de novo the district court’s finding that a claim is time
barred. Dodd v. United States, 365 F.3d 1273, 1277 (11th Cir. 2004). “And
although we are to give liberal construction to the pleadings of pro se litigants, we
nevertheless have required them to conform to procedural rules.” Albra v. Advan,
Inc., 490 F.3d 826, 829 (11th Cir. 2007) (quotation marks omitted).
Hackett’s complaint has two counts, both of which apply to One West.
Count 1 is for breach of contract. The factual basis for that claim is that Hackett
was provided with a “Good Faith Estimate” that described a single mortgage loan
but was instead given two different loans at the time of closing. A Good Faith
Estimate, however, is an estimate and not a contract that can be breached, so count
1 does not state a breach of contract claim.
Count 2 of Hackett’s complaint is for “material alteration of the note.”
3
Hackett does not point to any statutory or common law rule that imposes civil
liability on a party who materially alters a note. Count 2 does not state a claim.
The complaint also asserts that One West violated the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601 et seq. A plaintiff making a TILA claim must file suit
within either one year or three years from the date the violation occurred,
depending on the nature of the claim the plaintiff is making. See 15 U.S.C.
§ 1640(e). A TILA “violation ‘occurs’ when the transaction is consummated.” In
re Smith, 737 F.2d 1549, 1552 (11th Cir. 1984). Hackett consummated the
mortgage contract on which he is suing in December 2004, but he did not file this
lawsuit until more than five years later in October 2010. Regardless of which
statute of limitations applies to the TILA claim, it is time barred.1
AFFIRMED.
1
Hackett’s complaint references a variety of other state and federal statutes, including
“Federal Antitrust laws,” “Federal Racketeering laws,” Ga. Code Ann. § 13-1-12, and the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Even if Hackett’s reference to those
statutes can be construed as asserting a legal theory of recovery, the complaint does not allege
sufficient facts to support a cause of action under any of them.
4