FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 14, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 09-11636 & 09-11906

Non-Argument Calendar

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D. C. Docket No. 07-02274-CV-T-17-EAJ

ANDRZEJ MADURA,

ANNA DOLINSKA-MADURA,

Plaintiffs-Appellants,

versus

LAKEBRIDGE CONDOMINIUM ASSOCIATION INC.,

SENTRY MANAGEMENT INC.,

PORGES, HAMLIN, KNOWLES, PROUTY,

THOMPSON & NAJMY, P.A.,

DON WESTERHOFF,

Defendants-Appellees,

TELESE MCKAY, et al.,

Defendants.

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Appeals from the United States District Court

for the Middle District of Florida

_________________________

(June 14, 2010)
Before EDMONDSON, BLACK and ANDERSON, Circuit Judges.

PER CURIAM:

In this consolidated appeal, Andrzej Madura and Anna Dolinska-Madura,

Plaintiffs-Appellants, appeal pro se the district court’s orders: (1) granting

judgment on the pleadings for Defendants-Appellees Lakebridge Condominium

Association (“Lakebridge”) and Sentry Management Inc. (“Sentry”) on Plaintiffs’

Fair Debt Collection Practices Act (“FDCPA”) claims, 15 U.S.C. § § 1692a-p; (2)

dismissing Plaintiffs’ state law claims against Lakebridge and Sentry; (3)

dismissing Plaintiffs’ amended complaint against Porges, Hamlin, Knowles,

Prouty, Thompson & Najmy, P.A., a law firm representing Lakebridge (“Law

Firm”), for failure to prosecute; and (4) denying Plaintiffs’ motion for leave to

amend their amended complaint post-dismissal of the case. No reversible error

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has been shown; we affirm.

Plaintiffs owned a condominium unit and, according to the records of

Lakebridge, Plaintiffs were in arrears on monies owed to Lakebridge. Beginning

in July 2007, Sentry, acting as property manager for Lakebridge, sent Plaintiffs a

Also named as a defendant was Don Westerhoff, president of Lakebridge and an owner 1

of a unit at Lakebridge Condominium. Plaintiffs’ brief proffers no argument about Westerhoff;

challenges to the district court’s orders as they pertain to Westerhoff are waived. See Horsley v.

Feld, 304 F.3d 1125, 1131 n.1 (11 Cir. 2002). Plaintiffs also included in their amended th

complaint a count charging Lakebridge with retaliation; because Plaintiffs’ brief fails to address

this issue, it is deemed to have been waived. Id.

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“Notice of Intent to File Lien.” The notice included a statement of assessments

owed to Lakebridge as of 13 July 2007. On 10 August 2007, Plaintiffs demanded

an explanation of the assessments and alleged a portion of the assessments already

had been paid. On 23 August 2007, Sentry sent a “Notice of Lien;” the notice

included a statement of assessments owed as of 23 August 2007. On 7 September

2007, Sentry filed a lien against Plaintiffs’ condominium. The statements sent to

Plaintiffs set out Lakebridge’s name, address and telephone number; they detailed

the date, description, assessment amount, interest amount and total amount due.

On 3 October 2007 and 8 October 2007, Law Firm, acting as Lakebridge’s

attorney, sent letters to Plaintiffs stating an intent to foreclose. The letters included

an amended claim of lien for past due assessments, costs, and fees.

The district court granted Lakebridge and Sentry judgment on the pleadings

-- with prejudice -- on Plaintiffs’ FDCPA claims: the district court concluded that

neither Lakebridge nor Sentry acted as a “debt collector” under FDCPA, 15 U.S.C.

§ 1692a(6). The remaining state law claims were dismissed without prejudice.

Because Plaintiffs failed to respond both to Law Firm’s motion to dismiss and

failed also to respond to a district court order to show cause why the court should

not grant Law Firm’s motion to dismiss or should not dismiss Plaintiffs’ case for

failure to prosecute, the district court dismissed Plaintiffs’ case.

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Plaintiffs contend that the district court committed reversible error when it

considered a “Management Services Agreement” between Lakebridge and Sentry,

filed with the motion for judgment on the pleadings, to conclude that Sentry acted

as Lakebridge’s agent and was no debt collector under FDCPA. Plaintiffs argue

that the Management Services Agreement was disputed and that Fed.R.Civ.P.

12(d) required that the motion for judgment on the pleadings be converted into a

motion for summary judgment.

Judgment on the pleadings was granted appropriately in favor of Lakebridge.

Lakebridge was not subject to the FDCPA because it was no debt collector; it was

a creditor. See 15 U.S.C. § 1692a(6) defining “debt collector” as “any person who

...regularly collects ... debts owed ... or due another;” and 15 U.S.C. § 1692a(4)

defining “creditor” as “any person ... to whom a debt is owed.” But consideration

of the disputed Management Services Agreement to determine that Sentry also was

no debt collector for purposes of FDCPA constituted error: it violated Fed.R.Civ.P.

12(d)’s prescription that a motion for judgment on the pleadings that presents

matters outside the pleadings -- and are not excluded by the court -- be treated as a

motion for summary judgment under Rule 56. Nonetheless we conclude judgment

on the pleadings was granted appropriately in favor of Sentry: even ignoring

Sentry’s status under the Management Services Agreement, the pleadings make

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clear that Sentry’s acts did not violate FDCPA. See Bircoll v. Miami-Dade

County, 480 F.3d 1072. 1088 n.21 (11 Cir. 2007) (we may affirm on any ground

th

supported by the record).

The purpose of FDCPA is “to eliminate abusive debt collection practices by

debt collectors.” 15 U.S.C. § 1692(e). Section 1692f provides that a “debt

collector may not use unfair or unconscionable means to collect or attempt to

collect any debt.” Under section 1692g, after a debt collector’s initial

communication with a consumer, if the consumer notifies the debt collector that

the debt is disputed, “the debt collector shall cease collection of the debt ... until

the debt collector obtains verification of the debt ... or the name and address of the

original creditor, and a copy of such verification ..., or the name and address of the

original creditor, is mailed to the consumer by the debt collector.” Id. at 1692g(b).

Sentry sent Plaintiffs verification of the debt with its Notice of Intent to File Lien;

and Sentry updated that verification in later correspondence. Again after Plaintiffs’

requested verification -- and contemporaneously with the filing of the lien -- Sentry

sent Plaintiffs a current statement in verification of the debt. See Schimek v.

Weissman, Nowack, Curry, & Wilco, 374 F.3d 1011, 1014 (11 Cir. 2004) (if

th

permitted by state law, section 1692g(b) does not preclude debt collector from

contemporaneously filing lien and sending letter of demand to consumer). So,

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even if Sentry was a debt collector under FDCPA, it complied with the verification

requirements; Sentry’s collection efforts complied with section 1692g(b).

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Plaintiffs complain that the district court erred when it dismissed their state

law claims without prejudice. According to Plaintiffs, the decision not to exercise

supplemental jurisdiction was an abuse of discretion because the statute of

limitations had expired on at least some of their state law claims.

A district court with original jurisdiction in a civil action has “supplemental

jurisdiction over all other claims that are so related to claims in the action within

such original jurisdiction.” 28 U.S.C. § 1367(a). But a district court may decline

to exercise supplemental jurisdiction if all claims over which it has original

jurisdiction are dismissed. Id. at § 1367(c)(3). We have concluded that a federal

court may abuse its discretion when pendent state claims are dismissed and no

viable state forum exists at the time of dismissal. Roper v. Edwards, 815 F.2d

1474, 1477 (11 Cir. 1987).

th

The district court committed no abuse of discretion when it dismissed

Plaintiffs’ state law claims: Plaintiffs contend incorrectly that the statute of

We see no reversible error in the district court’s grant of judgment on the pleadings on 2

Plaintiffs’ conclusory allegations that Sentry’s communications violated several other sections of

the FDCPA because they allegedly contained falsities, were misleading or otherwise were

threatening. Just indicating that a matter may be referred to an attorney and a lien filed if

payment is not made is not a deceptive practice, see Schimek, 374 F.3d at 1013; nor was it

threatening to advise that Lakebridge had the ability to collect reasonable attorney’s fees

incurred in the course of filing a lien.

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limitations had expired at the time of dismissal. Under Florida law, Plaintiffs had

four years to commence suit for slander of title and intentional infliction of

emotional distress, see Fla. Stat. § 95.11(3)(o); Plaintiffs had two years from the

alleged violation to file suit under the Florida Consumer Collection Practices Act

(“FCCPA”). See Fla. Stat. §559.77(4). At the time of dismissal, Plaintiffs had

approximately four months to file FCCPA claims and over two years to file the

other state law claims.

Nor did the district court abuse its discretion when it dismissed Plaintiffs’

case against Law Firm for want of prosecution. Plaintiffs failed to respond to the

district court’s order to show cause. “The court may dismiss a claim if the

3

plaintiff fails to prosecute it or comply with a court order.” Equity Lifestyle Prop.

Inc. v Fla. Mowing & Landscape, 556 F.3d 1232, 1240 (11 Cir. 2009).

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In their last assertion of error, Plaintiffs contend that the district court abused

its discretion when it denied Plaintiffs’ motion to amend their amended complaint.

Plaintiffs’ motion to amend their amended complaint was filed 22 days after final

judgment. After judgment, the plaintiff who seeks leave to amend must do so

Plaintiffs explain their failure to respond to Law Firm’s motion to dismiss by asserting 3

that they never received the motion. But Plaintiffs also failed to respond to the district court’s

order to show cause; they never alleged non-receipt of that order.

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within 10 days of the entry of judgment by seeking relief under Rule 59(e)

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(motion to alter or amend a judgment) or Rule 60(b)(6) (motion for relief from a

judgment). Because Plaintiffs failed to act within 10 days of judgment, no relief

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was available under Rule 59(e); and because Plaintiffs failed to seek relief from

final judgment, Rule 60(b) has no application.

We have considered all errors advanced by Plaintiffs; no basis for reversal

has been shown.

AFFIRMED.

Fed.R.Civ.P. 59(e) has been amended, effective 1 December 2009, to expand the 10-day

4

period to 28 days.

Fed.R.Civ.P. 15(a) -- cited by Plaintiffs -- has no application after dismissal of a 5

complaint and the entry of final judgment for defendant. See Freidman v. Market Street

Mortgage Corp., 520 F.3d 1289, 1293 n.4 (11 Cir. 2008). th

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