4:25-cv-00411•ROBINSON v. DOLAN et al
Texto completo
Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION LATAVIUS ROBINSON, Plaintiff, v. Case No. 4:25-cv-411-RH-MJF IAN C. DOLAN, et al., Defendants. / REPORT AND RECOMMENDATION Plaintiff alleges that five Defendants violated the Fair Debt Collection Practices Act when they attempted to collect a mortgage debt and initiated foreclosure proceedings against Plaintiff. Defendants move to dismiss for failure to state a claim upon which relief can be granted. Docs. 19 & 26. Plaintiff opposes the motions. Docs. 23 & 28. Because Plaintiff’s claims are barred by the statute of limitations, the District Court should grant Defendants’ motions to dismiss. B ACKGROUND In his fifth amended complaint, Plaintiff sues five Defendants: • The law firm of Diaz Anselmo & Associates, P.A. (“DAA”); • Roy Diaz—an attorney formerly employed by DAA; Case 4:25-cv-00411-RH-MJF Document 29 Filed 03/18/26 Page 1 of 7
Page 2 of 7 • Lisa Woodburn—an attorney employed by DAA; • Ian Dolan—an attorney employed by DAA; and • Gregg Dreilinger—an attorney employed by DAA. Doc. 17 at 2. Plaintiff alleges that Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq in multiple ways. Specifically, Plaintiff alleges that Defendants attempted to collect a debt by sending dunning letters and instituting a foreclosure action. Doc. 17 at 9–11. According to Plaintiff, Defendants repeatedly represented that Plaintiff was indebted to United Wholesale Mortgage, LLC. Plaintiff contends that these representations were deceitful because “the loan had been assigned.” Id. at 10. Plaintiff alleges that Defendants violated 15 U.S.C. §§ 1692e, 1692f, and 1692g. Id. at 11–12. STANDARD Federal Rule of Civil Procedure 12(b)(6) authorizes defendants to move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). For a claim to survive dismissal, the “complaint must contain sufficient factual matter, accepted as true,” to state a facially plausible claim. Ashcroft v. Iqbal, Case 4:25-cv-00411-RH-MJF Document 29 Filed 03/18/26 Page 2 of 7
Page 3 of 7 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). D ISCUSSION The FDCPA “imposes civil liability on debt collectors for certain prohibited debt collection practices.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010) (cleaned up). But the Act requires plaintiffs to initiate a civil action for any violation of the Act within one year of the violation. Specifically, the Act states: (d) Jurisdiction An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs. 15 U.S.C. § 1692k(d) (emphasis added). Under this provision, an FDCPA claim generally accrues when the alleged violation occurs, not when a plaintiff discovers the violation. Rotkiske v. Klemm, 589 U.S. 8, 10 (2019). Case 4:25-cv-00411-RH-MJF Document 29 Filed 03/18/26 Page 3 of 7
Page 4 of 7 Plaintiff initiated this civil action on September 29, 2025. Doc. 1. Thus, § 1692k(d) bars any claim for any violation that occurred prior to September 29, 2024. In his fifth amended complaint, Plaintiff alleges that Defendants’ violations of the FDCPA occurred prior to September 29, 2024—with one violation purportedly continuing through October 2025.1 Doc. 17 at 9–12. Indeed, in Plaintiff’s response to one of the motions to dismiss, with one caveat, Plaintiff does not explicitly dispute that the violations alleged in Plaintiff’s fifth amended complaint occurred prior to September 29, 2024. Doc. 28 at 4. Plaintiff attempts to extricate himself from the statute of limitations by arguing that one Defendant—Dreilinger—committed two violations of the FDCPA on October 22, 2024. Id. at 4. Specifically, Plaintiff argues that in a foreclosure action pending in a Florida court, 1 Under the continuing violation doctrine, “each overt act that is part of the violation and that injures the plaintiff . . . starts the statutory period running again . . . .” Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1997). But the continuing violation doctrine does not apply to FDCPA claims. Moore v. Cohn Lifland Pearlman Herrmann & Knopf LLP, 2025 WL 2731003 (3d Cir. Sept. 25, 2025) (unpublished); Brown v. Transworld Sys., Inc., 73 F.4th 1030, 1044 (9th Cir. 2023); Boyue v. Bruce, 61 F.4th 485, 490 (6th Cir. 2023). Case 4:25-cv-00411-RH-MJF Document 29 Filed 03/18/26 Page 4 of 7
Page 5 of 7 Dreilinger filed: (1) a sworn certification from Woodburn; and (2) a loan transaction history. Id. But Plaintiff never alleged these purported violations in his fifth amended complaint. True, Plaintiff alleged that from “June 2024 through October 2025 Defendant Gregg R. Dreilinger continued prosecuting foreclosure proceedings on behalf of United Wholesale Mortgage despite notice that the loan had been assigned.” Doc. 17 at 10. But that is not equivalent to alleging the FDCPA violations Plaintiff now seeks to assert for the first time in his response to one of the motions to dismiss. Plaintiff’s vague allegation that “Dreilinger continued prosecuting foreclosure proceedings”—considered in conjunction with his entire fifth amended complaint—does not constitute “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). Plaintiff’s allegation that “Dreilinger continued prosecuting foreclosure proceedings” is simply too vague to apprise Dreilinger and the District Court that Plaintiff actually was alleging that Dreilinger violated the FDCPA on October 22, 2024 when Dreilinger filed in a Florida court a sworn certification from Woodburn and a loan transaction history. Case 4:25-cv-00411-RH-MJF Document 29 Filed 03/18/26 Page 5 of 7
Page 6 of 7 Furthermore, a plaintiff cannot amend his complaint through a response to a motion to dismiss. Burgess v. Religious Tech. Ctr., Inc., 600 F. App’x. 657, 665 (11th Cir. 2015) (citing Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009)). So Plaintiff’s response does not save him from his failure to allege in his fifth amended complaint that Dreilinger violated the FDCPA on October 22, 2024. Finally, even if Plaintiff had included in his fifth amended complaint the allegations that he seeks to assert in his response, Plaintiff still would have failed to state a claim under the FDCPA. As Plaintiff alleges, Dreilinger’s actions were “simply a continuation of the foreclosure case,” and “involved no more than reaffirming the legitimacy of the foreclosure suit,” and because of that, they are are “not independently actionable under the FDCPA.” Delia v. Ditech Fin., LLC, 2023 WL 8018575 at *1, 4 (11th Cir. Nov. 20, 2023). Accordingly, Plaintiff’s claims are barred by the statute of limitations. CONCLUSION For the reasons set forth above, the undersigned respectfully RECOMMENDS that the District Court: Case 4:25-cv-00411-RH-MJF Document 29 Filed 03/18/26 Page 6 of 7
Page 7 of 7 1. GRANT Defendants’ motions to dismiss. 2. DISMISS this action. 3. DIRECT the clerk of the court to close the case file. At Pensacola, Florida, this 18th day of March 2026. /s/ Michael J. Frank Michael J. Frank United States Magistrate Judge NOTICE TO THE PARTIES The District Court referred this case to a magistrate judge to make recommendations regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b). Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the report and recommendation. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge’s findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the District Court’s order based on unobjected- to factual and legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636. Case 4:25-cv-00411-RH-MJF Document 29 Filed 03/18/26 Page 7 of 7
Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.