Helen Roseberry v. Apple, Inc., et

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14340
Non-Argument Calendar
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D.C. Docket No. 7:18-cv-00189-WLS
HELEN ROSEBERRY,
Plaintiff-Appellant,
versus
APPLE, INC.,
BEST BUY,
VERIZON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(September 16, 2021)
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Before WILSON, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
Helen Roseberry, proceeding pro se, appeals the district court’s dismissal
without prejudice of her pro se civil complaint for failure to state a claim upon which
relief can be granted. On appeal, Mrs. Roseberry argues that the district court’s
decision was unfair and failed to consider the facts of the case. Because Mrs.
Roseberry has failed to sufficiently articulate her grounds for appeal, we affirm the
district court’s dismissal.
I
This lawsuit stems from Mrs. Roseberry’s purchase and use of two Apple
computers from Best Buy in September of 2017. In her complaint and subsequent
“supplement,” Mrs. Roseberry alleged that on January 7, 2018, one or both of the
purchased computers “overheated[,]…spraying smell[ ]y fumes and heat out from
the base of the computer, while making a loud high pitch sound” and “sprayed out
carcinogenic agents [ ] [s]uch as asbestos and [b]eryllium.” D.E. 1 at 3, 5. When
Mrs. Roseberry attempted to shut down the computer, she allegedly suffered
physical injuries, including, burns and scars to her hands, loss of her bottom teeth,
and damage to her respiratory system, lungs, mouth, eyes, and thyroid glands. These
injuries require ongoing medical care and prevented her from working for a year.
See id. at 3, 9, 15.
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Mrs. Roseberry then sent one of the computers to Apple for repair. The
“Product Repair Summary” from AppleCare shows that the logic board was replaced
because it was “unusually hot,” the fan assembly was replaced because of an
abnormal sound, and the heat sink was replaced because of a “thermal module issue.”
See id. at 13. Mrs. Roseberry alleged that Apple violated their obligations under the
Apple Care Service contract and “violated [her] personal information” by
“request[ing] copies of all medical record[s] to offer a settlement.” See id. at 15.
Mrs. Roseberry also alleged that when she contacted Verizon, her internet
provider, a Verizon employee expressed dislike for Apple products. Thereafter
Verizon “willfully refused to monitor the computer performance on the internet
because of verbal expressed dislike for Apple [p]roducts,” D.E. 29 at 2,
“suppress[ed] the digital frequency need[ed] for quality performance…caus[ing] the
computer to run poorly,” D.E. 23 at 1, and “locked [her] Verizon on a global plan[,]
costing [her over $90 [per] month in data overage.” D.E. 1 at 6.
Based on these allegations, Mrs. Roseberry asserted state-law claims of
product liability, negligence, breach of contract, invasion of privacy, libel, and
slander against Best Buy, Apple, and Verizon. She sought injunctive relief and
“unlimited recovery” in the form of compensatory, consequential, incidental,
liquidated, and punitive damages. See id. at 3, 9, 15; D.E. 5 at 2–3.
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Best Buy and Apple filed a joint motion to dismiss under Rule 12(b)(6) for
failure to state a claim. The district court granted the motion, dismissing all claims
without prejudice.1
In dismissing the products liability claims, the district court ruled that Mrs.
Roseberry failed to plead facts “establishing a ‘built-in objective standard or norm
of proper manufacture’ against which her computer can be compared,” or “that the
defect in the computers existed at the time the computers were sold.” D.E. 36 at 5–
6. Moreover, she had “not alleged any facts regarding the computer’s specific
design, the probability and seriousness of risk posed by that particular design, or the
manufacturer’s steps taken to mitigate or eliminate such risks.” See id. In dismissing
the negligence claims, the district court ruled that Mrs. Roseberry “failed to allege
facts that could plausibly meet all elements of negligence and…failed to allege the
factual detail required to plead a plausible claim for negligence.” Id. at 6. In
dismissing the breach of contract claim, the district court ruled that Mrs. Roseberry
had “not identified any particular provision of a specific agreement that was
allegedly breached, nor has she alleged what specifically Apple or any other
Defendant did that breached an agreement.” Id. at 7.
1 Service of process had not yet been effected on Verizon at the time Apple and Best Buy filed
their motion to dismiss.
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The district court dismissed the invasion of privacy claim because Mrs.
Roseberry did “not allege that any Defendant reviewed her data without her
knowledge—on the contrary, [she] suggests that she voluntarily sent Apple her
personal information at Apple’s request.” Id. The district court dismissed the
slander/libel claim because it “[found] no allegation that any Defendant made
statements about Plaintiff that were false, let alone in a publication, let alone with
malice.” Id. at 8.
Mrs. Roseberry now appeals.
II
We review the district court’s grant of a motion to dismiss for failure to state
a claim de novo. See Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir. 2019). In
reviewing such a motion, we accept the complaint’s factual allegations as true and
construe them in the light most favorable to the plaintiff. See id.
Rule 12(b)(6) provides for a dismissal of a complaint that fails to state a claim
upon which relief can be granted. In order to avoid dismissal, a complaint must
allege “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rule 8(a)(2) provides that a
pleading that states a claim for relief must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
short and plain statement must “give the defendant fair notice of what the claim is
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and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quotation marks
and ellipsis omitted). Pleadings that only offer labels and conclusions or a mere
recitation of the elements of a cause of action are insufficient. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although pro se pleadings are liberally construed and
held to less stringent standards than those drafted by attorneys, they still must
suggest some factual basis for a claim. See Jones v. Fla. Parole Comm’n, 787 F.3d
1105, 1107 (11th Cir. 2015).
Although we liberally construe the pleadings of pro se litigants, we still
require conformity with procedural rules. See Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007). Liberal construction of pro se pleadings “does not give a court
license to serve as de facto counsel for a party, or to rewrite an otherwise deficient
pleading in order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d
1165, 1168–69 (11th Cir. 2014) (quotation marks omitted).
Arguments not raised on appeal, even by pro se litigants, are deemed
abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). See also
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (stating
that an appellant must clearly and specifically identify in her brief any issue she
wants the appellate court to address). An appellant also abandons a claim when
(1) she makes only passing reference to it; (2) she raises it in a “perfunctory manner
without supporting arguments and authority;” (3) she refers to it only in the
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“statement of the case” or “summary of the argument”; or (4) the references to the
issue are mere background to her main arguments. See id. at 681–82.
III
Here, Mrs. Roseberry has abandoned any challenges to the district court’s
rulings that she failed to allege facts that could plausibly meet all of the elements of
her claims. Indeed, she fails to raise any argument on appeal expressly challenging
the merits of the district court’s dismissal order.
In her appeal, Mrs. Roseberry has a “Statement of Claims” page which
appears to lay out her primary issues on appeal. The page reads as follows:
Statement of Claims
1. My issues on appeal are: I am requestin[g] an appeal to overturn the
p[re]vious decision based on the Judge W. Louis Sands SR. findings
I believe his was unfair. His decision was also prejudice and he did
not consider the facts concerning the defective computer and the
harm it ha[s] inflicted upon me.
2. If this decision is allow[ed] to stand it will destroy and take
precedence over all other cases under the consumer Protection Act
and our Constitutional Laws will be challenged also. It will
endanger other laws such as the Uniform Act that protect[s] the
consumer from defective products injuries. The lower court did not
adequately review and consider the fact as they were presented.
Example (receipt of purchase and the repair receipt) he did not
consider the proof of support contract I purchase[d] for three
years.[).]
Appellant’s Br. at 12. Mrs. Roseberry goes on to identify three facts that she alleges
the district court did not consider:
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1. The defective product, and the supportive documents
2. The injury the computer cause[d] me physically damage that’s
permanent. And the exposure to fume from the computer over
processing. Apple have refuse[d] to identify the toxic fume I was
exposed to.
3. The unfair manner Apple treated the entire issue right from the
beginning.
Id. Though she does go on to specify other facts and statutes relevant to her
claims that she either believes were not considered or to elaborate the factual
theory behind her claims, these references fail to provide further guidance on
the issues she is appealing and are abandoned to the extent that they were not
raised before the district court. See id. at 12–14.
Mrs. Roseberry’s primary objection appears to be that the decision was
“unfair” and that the district court did not “adequately review and consider
the facts.” Even construing the brief liberally, as we do with a pro se litigant,
this is insufficient to alert us of the grounds for appeal. At best, these are
“passing reference[s]” and are being raised in a “perfunctory manner without
supporting arguments and authority.” See Sapuppo, 739 F.3d at 681–82.
While a legal argument could perhaps be crafted from this and the numerous
supporting documents, to do so would be “to rewrite an otherwise deficient
pleading in order to sustain an action,” and we are barred from doing so by
our precedent. See Campbell, 760 F.3d at 1168–69.
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IV
We affirm the district court’s order of dismissal.
A FFIRMED.
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