FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Oct. 30, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10099

Non-Argument Calendar

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D. C. Docket No. 08-00827-CV-J-20-JRK

MARIA VOLODINA CHESHIRE,

Plaintiff-Appellant,

versus

BANK OF AMERICA, NA,

KENNETH D. LEWIS,

Chairman, President and CEO,

STEVE KANE, Loan Officer of

Bank of America,

JENNY HUBER,

Research Analyst,

SARA BEDIENT, Officer of

Customer Service Research, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(October 30, 2009)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:

Maria Volodina Cheshire, proceeding pro se, appeals the district court’s

order dismissing her civil complaint (“Complaint”) against defendants Bank of

America and Kenneth D. Lewis (collectively “Defendants”). The district court

concluded that (1) the Complaint failed to state a claim upon which relief can be

granted and (2) the claims were barred by applicable statutes of limitations. The

district court also dismissed the Complaint as a sanction against Cheshire for filing

a unilateral settlement agreement and failing to appear at the motion to dismiss

hearing.

On appeal, Cheshire argues that Defendants failed to consent to proceedings

before a magistrate judge and, therefore, the magistrate did not have jurisdiction to

rule on certain pretrial motions including (1) granting Defendants’ motion for an

extension of time to respond to the Complaint; (2) denying her first motion for

default; and (3) denying her motion for a more definite statement. With certain

exceptions not applicable to this case, “a judge may designate a magistrate to hear

and determine any pretrial matter pending before the court.” See 28 U.S.C.

§ 636(b)(1)(A). Consent of the parties was not necessary. Accordingly, we

discern no error.

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Next, Cheshire argues that Defendants’ motions to dismiss were not properly

before the district court and the hearing on the motions to dismiss violated due

process. Specifically, Cheshire contends: (1) she was not provided with reasonable

notice of the hearing; (2) she was unable to attend the hearing because she did not

have time to hire her own court reporter; (3) she was entitled to discovery and a

jury trial; (4) Defendants’ motions to dismiss were unsigned; and (5) Defendants

were in default before filing the motions to dismiss because they had failed to

respond to the Complaint on time.

Upon review of the record and upon consideration of the parties’ briefs, we

find no reversible error. First, the district court entered an order on December 3,

2008 setting the hearing date. Cheshire acknowledged receiving notice of the

hearing on December 5, 2008. The hearing was held as scheduled on December

11, 2008. Cheshire was not entitled to be absent from the hearing simply because

she desired her own court reporter. We note that “[a] district court must be able to

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exercise its managerial power to maintain control over its docket.” Young v. City

of Palm Bay, Fla., 358 F.3d 859, 864 (11th Cir. 2004).

Second, a plaintiff has no right to discovery upon the filing of a motion to

dismiss that raises a purely legal question. Chudasama v. Mazda Motor Corp., 123

Fed. R. Civ. P. 30(b) refers to methods for recording testimony given at 1

depositions.

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F.3d 1353, 1367 (11th Cir. 1997). Defendants’ motions to dismiss raised only

legal questions and, therefore, Cheshire had no right to discovery. Furthermore, a

plaintiff's right to a trial by jury is not violated when a court dismisses a case based

on a matter of law at the pretrial stage. Garvie v. City of Fort Walton Beach, Fla.,

366 F.3d 1186, 1190 (11th Cir. 2004) (summary judgment context).

Third, a valid local rule has the force of law. Weil v. Neary, 278 U.S. 160,

169, 49 S. Ct. 144, 148 (1929). The local rules of the United States District Court

for the Middle District of Florida specify that “[a] pleading or other document

requiring the signature of the attorney of record shall be signed in the following

manner, whether filed electronically or submitted on disk to the Clerk: ‘s/ (attorney

name).’” M.D. Fla. Admin. Proc. for Electronic Filing in Civ. and Crim. Cases

§ II.C.1 (available at http://www.flmd.uscourts.gov/). Defendants’ motions to

dismiss are signed in accordance with this rule.

Finally, by order of the court, Defendants had through September 30, 2008

to file a response to the Complaint. On September 30, 2008, Defendants filed

motions to dismiss. The filing of a motion to dismiss alters the time in which an

answer is due until after the district court denies the motion or postpones its

disposition. Fed. R. Civ. P. 12(a)(4)(A). Accordingly, Defendants were not in

default at the time the motions to dismiss were filed.

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Cheshire also argues that the district court erred in granting Defendants’

motions to dismiss. “While we read briefs filed by pro se litigants liberally, issues

not briefed on appeal by a pro se litigant are deemed abandoned.” Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir.), cert. denied, 129 S. Ct. 74 (2008) (internal

citation omitted). “Moreover, we do not address arguments raised for the first time

in a pro se litigant’s reply brief.” Id. Among other reasons, the district court

dismissed Cheshire’s claims because they are barred by the applicable statutes of

limitation. Cheshire failed to address this issue in her initial brief. Accordingly, it

is abandoned. The statute of limitations bar is sufficient to affirm the district

court’s dismissal of the Complaint.

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AFFIRMED.

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All arguments not explicitly addressed are rejected without need for further 2

discussion.

Cheshire’s motion to file a reply brief out of time is granted. Cheshire’s motion 3

for a written report on the progress of her motions to (1) file a reply brief out of time; and (2)

show cause in a related appeal, is granted. Cheshire is informed that her request to file a reply

brief out of time has been granted, and her motion to show cause was denied on May 8, 2009. 

Cheshire’s motion to show cause why appellees should not be held in contempt for failing to

respond to her motion to file a reply brief out of time is denied. “Any party may file a response

to a motion.” Fed. R. App. P. 27(a)(2)(A). Appellees are not required to respond.

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