[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13959

Non-Argument Calendar

____________________

ABRAM GLADNEY,

by and through his Attorney in Fact, 

Gladney; Abram-A, 

Plaintiff-Appellant,

versus

CONSUMERS CREDIT UNION, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

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2 Opinion of the Court 23-13959

D.C. Docket No. 1:23-cv-03302-MHC

____________________

Before ROSENBAUM,GRANT, and HULL, Circuit Judges.

PER CURIAM:

Abram Gladney, pro se, appeals the district court’s dismissal 

of his pro se civil complaint against Consumers Credit Union 

(“CCU”), with whom Gladney refinanced his car loan, for failure 

to state a claim. Gladney also appeals the denial of his subsequent 

motion for reconsideration. After review, we affirm both rulings.

I. FACTUAL ALLEGATIONS 

Gladney’s amended complaint, the operative complaint on 

appeal, alleged as follows.1 On September 19, 2022, Gladney 

applied to CCU to refinance “the collateral” on his 2021 Nissan 

Altima. CCU’s CFO, Sean Bowers, accepted Gladney’s application 

and “created a contract and an account with GLADNEY” with 

account number 8093416820. Gladney alleged that Bowers’s 

acceptance of the application “formed [a] contract” between 

Gladney and CCU and imposed a fiduciary duty to properly 

manage his account. 

Thereafter, Gladney unknowingly “proceed[ed] to give 

unearned interest” to CCU every month (September to 

1 While we accept as true Gladney’s factual allegations, we omit his numerous 

conclusory allegations and legal conclusions. See Warren Tech., Inc. v. UL LLC, 

962 F.3d 1324, 1328 (11th Cir. 2020).

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December), for a total of $1,985.98 by December 27, 2022. On that 

date, Gladney “sign[ed] an ACH Origination Agreement for [CCU] 

to stop automatically withdrawing the unearned interest” from his 

checking account. Gladney also requested that CCU send his 

monthly statements by mail rather than by electronic 

communications. 

When Gladney did not receive his February statement by 

mail, he called CCU’s Contact Center two times and was told each 

time that he would receive a paper statement soon. By March 15, 

2023, Gladney began receiving calls from CCU’s Collections 

Department stating that (1) there was a balance due on the account 

of $651.92, and (2) that if he did not pay the balance, CCU would 

“repossess the collateral they used for borrowing GLADNEY’s 

security.” 

On March 16, 2023, Gladney called CCU’s Contact Center 

for a third time. At Gladney’s request, CCU’s representative 

emailed him a copy of the February statement, which indicated 

that payment of $651.92 was due on March 21, 2023. Gladney sent 

the $651.92 payment “to temporarily perform his contractual 

obligation,” but he believed “he would be owed that money back.” 

On April 12, 2023, Gladney received his first paper 

statement, which showed “a positive balance.” Gladney 

“deduce[d] that the positive balance on the bill was the interest 

[CCU] owed [him]” as the account owner. 

On April 12, 2023, Gladney “negotiated the bill . . . back to 

Bowers, with [written] instructions” to apply the interest CCU 

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owed him to his account number 8093416820 as a set off each 

billing cycle. Gladney further instructed Bowers to respond in 

writing within five days and, if Bowers did not do so, Gladney 

would assume the instructions had been carried out. Gladney sent 

this “package with the negotiated instrument and letter of 

instructions” to CCU by mail and heard nothing back from Bowers. 

Gladney sent similar packages to Bowers on April 20, 2023 and 

April 28, 2023, and each time, he received no response from 

Bowers. Instead, Gladney received a notice from CCU’s 

Collections Department stating Gladney was in default due to late 

payments. 

II. PROCEDURAL HISTORY

A. Unopposed Motion to Dismiss Gladney’s Amended 

Complaint

Gladney filed this action against CCU in Georgia state court. 

Then, in response to a motion to dismiss, Gladney filed an 

amended complaint. Gladney’s amended complaint alleged two 

federal claims and two state law claims. Gladney’s federal claims 

included securities fraud in violation of § 10(b) of the Securities 

Exchange Act of 1934 (“the Exchange Act”), 15 U.S.C. § 78j(b), and 

Rule 10b-5, and a violation of the Racketeer Influenced and 

Corrupt Organization Act (“RICO”), 18 U.S.C. §§ 1962, 1964(c). 

Gladney’s state law claims were for breach of fiduciary duty and 

breach of contract under Georgia law. Gladney also sought 

compensatory damages, punitive damages, and an injunction 

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against repossession of his car. Gladney also filed a motion for a 

preliminary injunction. 

CCU removed the action to federal court based on federal 

question jurisdiction. On August 3, 2023, CCU moved to dismiss 

Gladney’s amended complaint for failure to state a claim under 

Federal Rule of Civil Procedure 12(b)(6). Under the Northern 

District of Georgia’s Local Rules and the Federal Rules of Civil 

Procedure, Gladney had 17 days to file a response to CCU’s 

motion. See L.R. 7.1(B), N.D.Ga. (requiring responses to be filed 

within 14 days of service of the motion); Fed. R. Civ. P. 6(d) 

(allowing three additional days if the motion is served by mail). 

Gladney did not file a timely response or request an extension of 

time in which to do so. 

B. Dismissal Order

On August 22, 2023, the district court issued an order 

denying Gladney’s motion for a preliminary injunction and 

granting CCU’s motion to dismiss. As to Gladney’s request for a 

preliminary injunction, the district court concluded Gladney had 

failed to show a substantial likelihood of success on the merits for 

any of his claims.2 As to CCU’s motion to dismiss, the district court 

first noted that Gladney had failed to respond, rendering CCU’s 

motion to dismiss unopposed. Next, the district court addressed 

the merits of each claim and concluded Gladney’s amended 

2 On appeal, Gladney raises no issue as to the district court’s denial of his 

motion for a preliminary injunction, and we do not discuss it further.

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complaint failed to allege sufficient factual allegations to state a 

claim. Accordingly, the district court also concluded as a matter of 

law that Gladney was not entitled to punitive damages. 

C. Gladney’s Untimely Response and Motion for 

Reconsideration

More than a week later, on September 1, 2023, Gladney filed 

an untimely response opposing CCU’s August 3, 2023 motion to 

dismiss. Gladney argued that he had sufficiently alleged facts to 

support each of his claims and was entitled to punitive damages. In 

his September 1 response, Gladney also provided more detailed 

allegations for each claim. For example, Gladney stated that the 

monthly payment coupons CCU sent him and that he endorsed 

back to CCU were “securities” and that CCU made material 

misrepresentations in them as to the amount of interest Gladney

owed. Gladney’s response also specifically identified CCU’s failure 

to apply the interest CCU allegedly owed him back to his account 

as both the breach of a contract and of a fiduciary duty. And his 

response claimed CCU violated the RICO statute when it 

attempted to obtain money from him under the pretense that he 

had defaulted on his account. 

On September 8, 2023, Gladney filed a motion for 

reconsideration of the district court’s August 22, 2023 dismissal 

order. Gladney’s motion for reconsideration did not challenge the 

merits of the dismissal order. Instead, it argued Gladney’s failure 

to file a timely response to CCU’s motion to dismiss was “due to 

excusable neglect.” Gladney cited, among other things, his pro se

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status, unfamiliarity with the federal rules, lack of access to the 

electronic filing system, inflexible work schedule, car issues, 

eviction during the week of August 17, 2023, and incarceration 

from August 21 to 23, 2023. Gladney claimed that the earliest he 

could file his response was September 1, 2023. Gladney attached 

several documents, including court documents pertaining to his 

August 18, 2023 eviction and August 21, 2023 traffic court 

proceedings. 

D. Denial of Motion for Reconsideration

On November 8, 2023, the district court denied Gladney’s 

motion for reconsideration. The district court reiterated that 

Gladney’s response was untimely and stressed that Gladney had 

not moved for an extension or for permission to file an out-of-time 

response. The district court noted Gladney’s reasons for not filing 

a timely response, but concluded they did not “explain[ ] why [he] 

could not have prepared his response during the two-week period 

following the filing of [CCU’s] Motion to Dismiss on August 3, 

2023, or, alternatively, why [Gladney] could not have filed a 

motion to extend the time to file his response prior to the 

expiration of the permitted time period for filing a response.” The 

district court explained that Gladney’s pro se status did not excuse 

him from complying with the Local Rules or the Federal Rules of

Civil Procedure. 

Alternatively, the district court concluded Gladney’s motion 

for reconsideration—which offered only “excuses for his failure to 

file a timely response”—did not point to any newly discovered 

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evidence, intervening changes in the law, or a clear error of law or 

fact in the district court’s dismissal order. Finally, the district court 

stated that, even assuming Gladney “meant to incorporate into his 

Motion for Reconsideration the argument he makes in his late-filed 

opposition to [CCU’s] Motion to Dismiss,” the court had reviewed 

those arguments and found that none “provide a ground under 

which [it] should reconsider it[s] prior Order.” 

Gladney timely appealed. 

III. DISCUSSION

A. Standard of Review

We review de novo a district court’s grant of a motion to 

dismiss pursuant to Rule 12(b)(6) for failure to state a claim, 

accepting the complaint’s allegations as true and construing them 

in the light most favorable to the plaintiff. Turner v. Williams, 65 

F.4th 564, 577 (11th Cir. 2023). But “the tenet that a court must 

accept as true all of the allegations contained in a complaint is 

inapplicable to legal conclusions.” Id. (quotation marks omitted). 

To survive a Rule 12(b)(6) motion to dismiss, a complaint 

must contain sufficient factual matter, accepted as true, that states 

a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009). The complaint must provide more than labels 

and conclusions, and threadbare recitals of the elements of a claim 

supported only by conclusory statements will not suffice to survive 

a Rule 12(b)(6) motion. Turner, 65 F.4th at 577. While we hold 

“the allegations of a pro se complaint to less stringent standards than 

formal pleadings drafted by lawyers,” we cannot “serve as de facto

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counsel” or “rewrite an otherwise deficient pleading in order to 

sustain an action.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168-69

(11th Cir. 2014) (quotation marks omitted).

B. Dismissal of Gladney’s Amended Complaint

Here, the district court did not err in granting CCU’s motion 

to dismiss because Gladney’s amended complaint failed to state any 

claim. 

1. Securities Fraud Claim

First, as to his securities fraud claim, Gladney concedes that 

his amended complaint failed to plausibly plead a claim, and we 

agree. Gladney’s amended complaint failed to allege with 

particularity facts showing a material misrepresentation by CCU, 

much less one made with the requisite “scienter” and in 

“connection with the purchase or sale of a security.” See Findwhat 

Inv. Grp. v. FindWhat.com, 658 F.3d 1282, 1295-96 (11th Cir. 2011)

(explaining that the heightened pleading requirements for 

securities fraud claims require, among other things, that the 

complaint specify each allegedly misleading statement, the reasons 

why the statement was misleading, and the facts giving rise to a 

strong inference the defendant acted with the required state of 

mind); Fed. R. Civ. P. 9(b). 

Further, as to misrepresentations, Gladney’s amended 

complaint alleged that he instructed CCU to apply the interest he 

believed he was owed to his account balance as an offset, but it did 

not allege that CCU told him it would do so. Rather, the only CCU 

statements identified in Gladney’s amended complaint were 

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Contact Center representatives’ comments about his request to 

receive paper statements and the Collection Department’s 

statements that Gladney was late on his monthly payments and his 

car could be repossessed. The amended complaint does not explain 

how any of those statements were false or misleading, were made 

with the intent to deceive or defraud him, or were made in 

connection with the sale or purchase of securities. 

On appeal, Gladney contends that his response to CCU’s 

motion to dismiss cured the deficiencies in his amended complaint 

“and made his security fraud claim plausible.” There are at least 

two problems with this argument. First, Gladney’s response was 

untimely, a fact he does not dispute. Second, Gladney did not file 

a separate motion seeking leave to amend further his complaint to 

add those purportedly curative factual allegations in his response. 

See Fed. R. Civ. P. 15(a)(2) (requiring the opposing party’s consent 

or the court’s leave to amend a complaint a second time); Advance 

Trust & Life Escrow Servs., LTA v. Protective Life Ins. Co., 93 F.4th 

1315, 1336-38 (11th Cir. 2024) (holding a plaintiff must file a 

separate motion for leave to amend setting forth the substance of 

the proposed amendments and cannot request such leave in the 

brief opposing a motion to dismiss). This latter detail is important 

because on a motion to dismiss a district court’s review is limited 

to the face of the complaint and any documents it refers to that are 

central to the claims alleged. Wilchombe v. TeeVee Toons, Inc., 555 

F.3d 949, 959 (11th Cir. 2009). 

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At bottom, Gladney could not cure the deficiencies in his 

amended complaint by asserting additional facts in his response to 

CCU’s motion to dismiss, whether that response was timely or not. 

Cf. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 

2004) (concluding a “plaintiff may not amend her complaint 

through argument in a brief opposing summary judgment”).

2. RICO Claim

Gladney’s federal civil RICO claim fairs no better. To assert 

a claim under 18 U.S.C. § 1964(c), a plaintiff must allege (1) “a 

violation of 18 U.S.C. § 1962,” the RICO criminal statute; (2) injury 

to business or property; and (3) causation. Almanza v. United 

Airlines, Inc., 851 F.3d 1060, 1066 (11th Cir. 2017). “Essential to any 

successful RICO claim are the basic requirements of establishing a 

RICO enterprise and a ‘pattern of racketeering activity.’” Jackson v. 

BellSouth Telecomms., 372 F.3d 1250, 1264 (11th Cir. 2004). To 

successfully allege a pattern of racketeering activity, the plaintiff 

must allege that (1) the defendant committed two or more 

predicate acts within a ten-year time space; (2) the predicate acts 

were related to one another; and (3) the predicate acts 

demonstrated criminal conduct of a continuing nature. Id.

Here, Gladney did not allege any facts showing that CCU 

engaged in even one predicate act demonstrating criminal conduct 

within the meaning of the RICO statutes, much less ongoing 

criminal activity. See id. In his RICO count, Gladney’s amended 

complaint alleged only that CCU “engaged in commerce,” owed 

him “a fiduciary duty,” and “interfered with the conduction of 

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commerce on more than one occasion” in a way that caused him 

harm and was “not in his best interests.” These vague allegations 

are not sufficient to plausibly allege that CCU engaged in 

racketeering conduct in violation of § 1962. See Almanza, 851 F.3d 

at 1066.

3. Breach of Fiduciary Duty Claim

As for Gladney’s claim of breach of a fiduciary duty under 

Georgia law, to show a fiduciary duty, the plaintiff must allege facts 

showing that “one party is so situated as to exercise a controlling 

influence over the will, conduct, and interest of another or where, 

from a similar relationship of mutual confidence, the law requires 

the utmost good faith.” Est. of Bass v. Regions Bank, Inc., 947 F.3d 

1352, 1359 (11th Cir. 2020) (quoting O.C.G.A. § 23-2-58). 

Gladney’s amended complaint does not allege facts showing 

that CCU had a fiduciary duty to Gladney. Gladney did not allege 

that CCU exercised a controlling influence over his will, conduct, 

and interest. Gladney did allege that he and CCU were in a lenderborrower relationship. But under Georgia law, such relationships

generally do not give rise to a fiduciary duty on the part of the 

lender. Russell v. Barnett Banks, Inc., 527 S.E.2d 25, 26-27 (Ga. Ct. 

App. 1999) (explaining that there is no fiduciary duty because the 

borrower and the lender have opposite interests); Gwinnett Cmty.

Bank v. Arlington Cap., LLC, 757 S.E.2d 239, 245 (Ga. Ct. App. 2014). 

A fiduciary duty also can be created by agreement of the parties. 

PNC Fin. Servs. Grp., Inc. v. Gibson, ___ S.E.2d ___, 2024 WL 

1984082, *5-6 (Ga. Ct. App. May 6, 2024). But Gladney’s amended 

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complaint did not include any allegations of specific contract terms, 

much less such terms giving rise to a fiduciary duty.

4. Breach of Contract Claim

This brings us to Gladney’s breach of contract claim. Under 

Georgia law, the elements of a breach of contract claim are 

“(1) breach, (2) the resultant damages that [the plaintiff] suffered, 

and (3) that he has the right to complain about the contract being 

broken.” Est. of Bass, 947 F.3d at 1358 (quotation marks omitted). 

A general assertion of a breach of contract is not sufficient to state 

a claim; rather, the plaintiff must allege the specific provision or 

provisions that were allegedly breached to allege the existence of a 

valid contract. Id. 

Gladney’s amended complaint alleged only generally that 

CCU created a contract with him by accepting his refinance 

application. Gladney did not identify any particular provision of 

the contract that CCU allegedly breached, he did not provide 

excerpts of relevant portions of the contract, and he did not attach 

a copy of the contract to his amended complaint. Therefore, he 

did not sufficiently allege the existence of a contract that was 

breached. See id. Moreover, to the extent Gladney’s amended 

complaint could be liberally construed to allege that CCU failed to 

perform its obligation to apply the interest he allegedly was owed 

to his account, he failed to allege any provision of the contract that 

required CCU to do so.

We recognize that Gladney’s amended complaint alleged 

that CCU “was in a contractual relationship” with him and owed 

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him a duty “to act in good faith and deal with him fairly.” While 

under Georgia law “[e]very contract implies a covenant of good 

faith and fair dealing in the contract’s performance and 

enforcement,” that “covenant cannot be breached apart from the 

contract provisions that it modifies and therefore cannot provide 

an independent basis for liability.” Layer v. Clipper Petroleum, Inc., 

735 S.E.2d 65, 73 (Ga. Ct. App. 2012) (quotation marks omitted). 

Thus, “[t]here is no independent cause of action for violation of a 

duty of good faith and fair dealing in the performance of a contract 

apart from breach of an express term of the contract.” Bankston v. 

RES-GA Twelve, LLC, 779 S.E.2d 80, 82 (Ga. Ct. App. 2015). Because 

Gladney failed to allege any provisions of his contract with CCU 

that were breached, he also failed to allege a claim for breach of the 

duty of good faith and fair dealing under that contract. See id.

5. Punitive Damages

Finally, as for Gladney’s punitive damages claim, under 

Georgia law, punitive damages cannot be awarded for a breach of 

contract absent a showing of tortious conduct by the defendant. 

Pers. Concierge MD, LLC v. SG Echo, LLC, 890 S.E.2d 334, 342 (Ga. Ct. 

App. 2023). A breach of fiduciary duty, on the other hand, can 

support an award of punitive damages. Kilburn v. Young, 569 S.E.2d 

879, 883 (Ga. Ct. App. 2002). But for the reasons already discussed, 

Gladney’s amended complaint failed plausibly to allege CCU 

breached a fiduciary duty. Therefore, the district court properly 

dismissed Gladney’s punitive damages claim. See OFS Fitel, LLC v. 

Epstein, Becker & Green, P.C., 549 F.3d 1344, 1357 n.8 (11th Cir. 

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2008) (explaining that under O.C.G.A. § 51-12-5.1, a claim for 

punitive damages cannot survive “without an award of relief on an

underlying claim”). 

C. Denial of Rule 60(b) Motion 

Under Federal Rule of Civil Procedure 60(b)(1), the district 

court may relieve a party from a final judgment, order, or 

proceeding for “mistake, inadvertence, surprise, or excusable 

neglect.” Fed. R. Civ. P. 60(b)(1). We review the denial of a Rule 

60(b) motion for an abuse of discretion. Maradiaga v. United States, 

679 F.3d 1286, 1291 (11th Cir. 2012). 

On appeal, Gladney argues his motion for reconsideration 

showed his late-filed response was due to excusable neglect under 

Rule 60(b)(1).3 We need not consider Gladney’s excusable neglect 

argument, however, because the district court’s alternative

ruling—that, even considering the arguments in Gladney’s 

untimely response, Gladney’s amended complaint was properly 

dismissed for failure to state a claim—is correct. For the reasons 

already discussed, Gladney’s amended complaint failed to state any 

claim that was plausible on its face. Gladney’s response to the 

motion to dismiss could not cure those deficiencies in his amended 

3 Although the district court appears to have considered Gladney’s motion for 

reconsideration under both Rule 60(b) and Federal Rule of Civil Procedure 

59(e), Gladney’s motion focused solely on his reasons for failing to file a timely 

response to the motion to dismiss and did not address the merits of the district 

court’s dismissal of his claims. Thus, Gladney’s reconsideration motion is best 

characterized as a motion under Rule 60(b). See Finch v. City of Vernon, 845 

F.2d 256, 258-59 (11th Cir. 1988).

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complaint, and he did not request leave to file a second amended 

complaint. Because Gladney’s amended complaint failed to state a 

claim for relief, the district court did not abuse its discretion by 

denying Gladney’s Rule 60(b)(1) motion.

IV. CONCLUSION

For the forgoing reasons, the district court did not err in 

granting CCU’s motion to dismiss Gladney’s amended complaint 

for failure to state a claim or abuse its discretion in denying 

Gladney’s Rule 60(b) motion based on excusable neglect.

AFFIRMED.

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