FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 6, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10888

Non-Argument Calendar

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D. C. Docket No. 06-00038-CV-ORL-22KRS

JAMES J. ARMSTRONG, 

NANCY L. ARMSTRONG, 

Plaintiffs-Appellants, 

versus 

COLONIAL BANK, N.A., 

Defendant-Appellee. 

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Appeal from the United States District Court

for the Middle District of Florida

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(October 6, 2008)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

This case is a class action. The Armstrongs, proceeding pro se, brought it in
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the Brevard County, Florida Circuit Court, claiming that Colonial Bank’s overdraft

charges were usurious, in violation of Fla. Stat. § 687.03, and, moreover,

constituted felony loan sharking, in violation of Fla. Stat. § 687.071. The bank

removed the case to the district court on the ground that the National Bank Act

provided the exclusive remedy for usury actions against national banks. Record,

Vol 1 at Tab 1. Once in the district court, the Armstrongs filed an amended class

action complaint, which contained the same state law claims as their initial

complaint; the amended complaint also asserted that the overdraft charges

exceeded the maximum interest allowable under the National Bank Act. Id. at Tab

10. 

Colonial Bank moved the district court to dismiss the complaint for failure

to state a claim for relief, and the court granted the motion. Id. at Tab 26. The

Armstrongs appealed, and we affirmed. Armstrong v. Colonial Bank, N.A., 219

Fed.Appx 974 (Table) C.A. 11 (Fla.). The bank thereafter renewed the motion for

sanctions that it had filed with the district court prior to the Armstrongs’ appeal,

seeking an award of attorney’s fees under Fla. Stat. § 57.105. The Armstrongs

opposed the motion, arguing that a federal court could not impose attorney’s fees

pursuant to § 57.105. The court referred the motion to a magistrate judge, who,

relying in dicta in Bank Atlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d
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1467, 1478 n.11 (11 Cir. 1992), concluded that fees could be awarded under § th

57.105 but that she had insufficient evidence before her to determine a reasonable

fee. The judge therefore issued a report recommending that the district court grant

the bank’s motion and afford the bank leave to refile its motion with the evidence

necessary to support the fees it was claiming.

The district court adopted the report and recommendation over the

Armstrongs’ objection, and the magistrate judge subsequently recommended a fee

award of $13,975.50. The Armstrongs did not object to the recommendation, and

the district court accordingly adopted it and awarded the bank fees in that amount. 

The Amstrongs now appeal.

The Armstrongs argue that § 57.105 does not apply in this case because rule

of decision the district court applied in deciding the case was a federal law, the

National Bank Act. We might be persuaded if the Armstrongs had brought this

case under the National Bank Act in the district court, but they did not. They sued

the bank under state law, and after the bank removed the case to district court, they

continued to rely on state law when they amended their complaint. True, the

amended complaint also cited the National Bank Act as a basis for recovery, but

stuck with their state law allegations to the bitter end. 

The Armstrongs did not object to the magistrate judge’s determination and
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recommendation of the amount of attorney’s fees to be awarded to the bank, so

they may not now challenge the award the district court made – absent plain error

or a claim of manifest injustice, neither of which are present.

AFFIRMED.