Christine E. Marfut v. City of North Port, FL, 11th Cir. (2010)
Christine E. Marfut v. City of North Port, FL, 11th Cir. (2010)
Christine E. Marfut v. City of North Port, FL, 11th Cir. (2010)
No. 09-13790
Non-Argument Calendar
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D. C. Docket No. 08-02006-CV-T-27-EAJ
CHRISTINE E. MARFUT,
Plaintiff-Appellant,
versus
CITY OF NORTH PORT, FLORIDA,
a municipal corporation,
NELSON-HESSE LAW OFFICE,
ROBERT K. ROBINSON,
DANIEL GUARNIERI,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 16, 2010)
Before DUBINA, Chief Judge, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Appellant Christine Marfut is proceeding pro se from the district courts
dismissal of her civil complaint raising multiple claims that the City of North Port,
Florida, the Nelson Hesse Law Firm, and Robert K. Robinson and Daniel
Guarnieri, attorneys at that law firm, violated her rights under the Constitution and
several federal statutes when it imposed and attempted to collect fines on various
properties she owned. This appeal indisputably covers the district courts denial of
Marfuts motion, which the district court construed as a motion to re-open the case
and reconsider dismissal. The appellees argue that we lack jurisdiction to consider
two previous orders of the district court: (1) an order dismissing with prejudice for
failure to state a claim under Fed. R. Civ. P. 12(b)(6) four counts of her complaint,
alleging violations of 15 U.S.C. 1692-1692p, and 18 U.S.C. 1341, 1951,
1346, and ordering Marfut to file an amended complaint as to the remaining
counts; and (2) a subsequent order dismissing without prejudice the remainder of
the counts, alleging violations of the Fourth and Eighth Amendments, civil rights
violations, and violations of 18 U.S.C 1961-1968, for failure to follow court
orders and for lack of prosecution pursuant to a local court rule.
Marfut argues that the district court erred in dismissing three of the four
counts with prejudice because her complaint asserted valid legal claims of mail
fraud, 18 U.S.C. 1341, the right to honest services, 18 U.S.C. 1346, and the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692-1692p. She
also argues that the district court erred in dismissing the remainder of her case
without prejudice because she did respond to the courts orders, and she did
prosecute her case. Finally, she asserts that the court erred by not reconsidering its
dismissal of the case.
I. Jurisdiction over underlying dismissals of the complaint
[We have] held that where an order dismisses a complaint with leave to
amend within a specified period, the order becomes final (and therefore
appealable) when the time period allowed for amendment expires. Briehler v.
City of Miami, 926 F.2d 1001, 1002 (11th Cir.1991). A notice of appeal in a civil
case must be filed within 30 days after the judgment or order appealed from is
entered. Fed. R. App. P. 4(a)(1)(A). When the district court fails to enter a
separate judgment pursuant to Fed. R. Civ. P. 58, the time to appeal begins when
150 days have run from the orders entry in the civil docket, which gives an
appellant in a civil case 180 days to file a notice of appeal. Fed. R. App. P. 4(a)(7);
Fed. R. Civ. P. 58. We liberally construe notices of appeal to allow the appeal of
orders not specifically designated in the notice where it is clear that the overriding
intent was effectively to appeal. KH Outdoor, LLC v. City of Trussville, 465
would not suffice, a dismissal without prejudice will be upheld even though the
case did not involve a series of violations of court rules or orders. Compare Betty
K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337-38 (11th Cir. 2005)
(holding that dismissal with prejudice is an extreme sanction requiring precise
findings by the district court of willful violation) with Dynes, 720 F.2d at 1499
(holding that a dismissal without prejudice under Fed. R. Civ. P. 41(b) was not an
abuse of discretion when the plaintiff failed to file a brief of an issue within the 30
days allotted, even though this was the plaintiffs only failure to file requested
papers in the two years of litigation).
Because the record demonstrates that the district court did not clearly err in
determining that Marfut had failed to respond to the courts orders and had failed
to prosecute her case, we conclude that the district court did not abuse its discretion
in dismissing the remainder of the case without prejudice.
IV. Denial of construed motion to re-open case and reconsider dismissal
We review a district courts denial of a motion for reconsideration for
abuse of discretion. Corwin v. Walt Disney Co., 475 F.3d 1239, 1254 (11th Cir.
2007) (holding that the district courts denial of a motion for reconsideration was
not an abuse of discretion when the record supported the district courts grant of
summary judgment). See also Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d
1113, 1133 (11th Cir. 2004) (holding that the district courts denial of a motion for
reconsideration was not an abuse of discretion when the court had already
properly decided the issue).
Because the district court correctly dismissed the case, and since Marfut
presented no new support for her motion, we conclude that the district court did not
abuse its discretion in denying the pleading which it construed as a motion to reopen the case and reconsider dismissal.
Conclusion
We affirm the orders of the district court dismissing Marfuts civil complaint
and denying her motion to reconsider.
AFFIRMED.