Robin Gustin, et al v. NCR Corporation, et al

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-1 4460
Non-Argument Calendar
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D.C. Docket No. 9:19-cv-80291-DMM
ROBIN GUSTIN,
CAPITAL SECURITY SYSTEMS INC.,

Plaintiffs-Appellants,

versus

BRUCE NICOLL,
NCR Corporation Solutions Architect, et al.,
Defendants,
NCR CORPORATION,
PARASCRIPT LLC,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 26, 2020)
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Before WILLIAM PRYOR, Chief Judge, WILSON and BRANCH, Circuit Judges.

PER CURIAM:
Robin Gustin and her company, Capital Security Systems Incorporated,
appeal the dismissal of their fifth amended complaint against NCR Corporation
and Parascript LLC. Gustin complained that NCR and Parascript violated her
federal right to a trial by jury under the Seventh Amendment during a previous
lawsuit. See 42 U.S.C. § 1983. Gustin also complained that NCR and Parascript
committed fraud under Florida law. NCR and Parascript moved to dismiss for
failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The district court dismissed
Gustin’s fifth amended complaint with prejudice on the ground that further
amendment would be futile. We affirm.
Gustin retained counsel to file her fifth amended complaint after NCR and
Parascript moved to dismiss her pro se fourth amended complaint. See id. NCR
and Parascript argued that Gustin failed to allege how they conspired to violate her
federal right to trial by jury and that the claim failed as a matter of law because
NCR is a private entity. NCR also argued that Gustin failed to plausibly allege a
claim of common-law fraud.
To determine whether Gustin’s fifth amended complaint states a claim, we
accept its allegations and the contents of its attachments as true and view them in
the light most favorable to her. See Saudi Arabia v. Nelson, 507 U.S. 349, 351
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(1993); Echols v. Lawton, 913 F.3d 1313, 1319 (11th Cir. 2019). Gustin alleges
that, in 2014, Capital Security sued NCR for patent infringement, and NCR
counterclaimed, as the inventor, to invalidate the patents. During discovery, NCR
filed some records that it marked “Highly Confidential” and “For Attorney’s Eyes
Only,” and the senior vice president for Parascript submitted a declaration that
authenticated some of the records. Gustin’s “attorney was privy to the ‘Highly
Confidential’ documents,” but Gustin, who is “‘thoroughly knowledgeable’ about
the technical aspects of the patent, was not able to study the[] documents and
determine their effect on her case.” After five years of litigation, the district court
invalidated Gustin’s patents. Later, Gustin inspected the records submitted by NCR
and determined that they were publicly accessible.
Gustin complained that NCR and Parascript “depriv[ed] [her] of her right to
a trial as stated in Amendment 7 of the United States Constitution,” see 42 U.S.C.
§ 1983, and that they committed “common law fraud” in violation of Florida law.
She alleged that the companies “prevented her from pursuing her lawsuit with full
knowledge of all the evidence at her disposal” by “concealing evidence critical to
her case” against NCR through “deceptively label[ing]” records as “Highly
Confidential.” She also alleged that she was unaware that NCR and Parascript had
falsely labeled as confidential “evidence necessary to litigate her case with a
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reasonable probability of success” and that the fraud divested her of patents that
constituted “all of the assets of her company.”
The district court dismissed Gustin’s complaint. It ruled that Gustin did “not
allege . . . that NCR performs any public function or is closely intertwined in the
with the state in any regard” as required “to support a finding that either NCR or
Parascript are capable of violating [her] constitutional rights.” See 42 U.S.C.
§ 1983. The district court also ruled that Gustin failed to plead, as required to state
a state-law claim for fraud, that she was damaged or “deprived of any information”
because she alleged that “her lawyer saw the documents, which under the
principles of agency law, amounts to [her] seeing the documents.”
The district court did not err by dismissing Gustin’s fifth amended
complaint. The fifth amended complaint lacks “sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). Gustin does not dispute
that she failed to allege facts from which the district court could plausibly infer that
NCR and Parascript acted “under of color of state law” to deprive her of a right
guaranteed under the Constitution. See Arrington v. Cobb Cnty., 139 F.3d 865, 872
(11th Cir. 1998). Gustin does not even mention, much less discuss the merits of,
her federal claim in her brief. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681 (11th Cir. 2014). Gustin’s complaint fails to allege that she was damaged
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due to lack of access to the records that NCR marked as “confidential.” In Florida,
“lawyers . . . are always agents of their clients,” Brooks Tropicals, Inc. v. Acosta,
959 So. 2d 288, 295 (Fla. Dist. Ct. App. 2007) (quoting Lipsig v. Ramlawi, 760 So.
2d 170, 186 (Fla. Dist. Ct. App. 2000)), and “knowledge of the agent constitutes
knowledge of the principal as long as the agent received such knowledge while
acting within the scope of his authority,” id. (quoting Ruotal Corp., N.W., Inc. v.
Ottati, 391 So. 2d 308, 309 (Fla. Dist. Ct. App. 1980)). Because Gustin’s attorney
was “privy” to the marked records, knowledge of their contents was imputed to
Gustin. That Gustin “did not know of the [contents of the records] . . . is
immaterial” because the fault, if any, lies with her attorney for “fail[ing] to act for
her . . . .” See id. (quoting Griffith v. Investment Co., 110 So. 271, 271–72 (Fla.
1926)).
Gustin argues that the district court should have given her another
opportunity to amend her complaint, but the district court was not required sua
sponte to allow Gustin to file a sixth amended complaint when she was represented
by counsel who never requested leave to amend nor moved to amend the fifth
amended complaint. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d
541, 542 (11th Cir. 2002). And the district court was not required to give Gustin an
opportunity to amend when amendment would have been futile. See Cockrell v.
Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).
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We AFFIRM the dismissal of Gustin’s fifth amended complaint.
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