             Case: 17-10841    Date Filed: 11/05/2018   Page: 1 of 10


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-10841
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:16-cv-22296-KMW

OSCAR VARELA GARCIA,
                                                               Plaintiff-Appellant,

                                      versus

RICHARD DIAZ,
                                                              Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                               (November 5, 2018)

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:

      Oscar Varela Garcia, a federal prisoner proceeding pro se, appeals the

District Court’s dismissal of his Complaint against Richard Diaz, the defense

counsel who represented him in the criminal proceedings that led to his conviction

and confinement. We affirm the District Court’s dismissal because, despite every
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benefit to which a pro se litigant like Garcia is entitled, the Complaint fails to

plead a claim for relief that is cognizable under Federal Rule of Civil Procedure 8.

                                           I.

      This civil case arises from Richard Diaz’s legal representation of Oscar

Varela Garcia in a criminal prosecution for various offenses stemming from

Garcia’s involvement as a “high-ranking official in a Colombian drug trafficking

organization.” United States v. Garcia, 533 F. App’x 967, 969 (11th Cir. 2013)

(per curiam). In 2013, this Court affirmed Garcia’s convictions and sentence on

direct appeal, and in 2016, when the District Court denied Garcia’s petition for a

writ of habeas corpus under 28 U.S.C. § 2255, we declined to grant him a

certificate of appealability. Id. at 967; Garcia v. United States, No. 16-10439-F

(11th Cir. Nov. 10, 2016). Then, later in 2016, while a prisoner in a federal

correctional institution, Garcia filed a pro se civil complaint against Diaz that

stems from Diaz’s representation of him in the underlying criminal prosecution.

      Garcia’s Complaint is difficult to decipher because it is not organized into

causes of action or numbered paragraphs. Garcia alleges that Diaz “breached their

contract.” He also alleges, however, that had he known that Diaz was being

investigated by the federal government for money laundering, he “would have

never agreed to obtain his services” and that during Garcia’s criminal trial, Diaz

“neglected a legal matter instructed to him” regarding the presentation of alibi


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witnesses. Garcia seeks $250,000 in damages, the amount that he paid to Diaz for

the representation, plus $500,000 for “mental anguish/pain and suffering.”

       The District Court sua sponte examined the sufficiency of Garcia’s

Complaint under Federal Rule of Civil Procedure 8. Pursuant to the Prison

Litigation Reform Act of 1995 (“PLRA”), a court must “dismiss [a] case at any

time” that a complaint “fails to state a claim on which relief may be granted.” 28

U.S.C. § 1915(e)(2).1 Because Garcia was a pro se plaintiff, the Court afforded

him a liberal construction of his Complaint and examined his allegations not just

for a breach of contract claim but also for ones of negligent misrepresentation and

of legal malpractice (negligence). It determined that Garcia had failed to state a

cause of action under any of the three theories and dismissed the Complaint

without prejudice.

       A series of motions and orders followed that immediately precede this

appeal. Within 28 days of the District Court’s dismissal, Garcia moved under

Federal Rule of Civil Procedure 59 to alter or amend the judgment. On December

22, 2016, the Court granted that motion and gave Garcia “one opportunity” to

amend his Complaint within three weeks, by January 11, 2017. On January 10, the

Court received from Garcia an undated Motion for Extension of Time. Garcia

cited, as cause for the extension, a prison lockdown from December 23, 2016 to

       1
        Garcia is subject to the provisions of the PLRA because he proceeded in forma
pauperis.
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December 28, 2016 and another lockdown from January 3, 2017 to a date unknown

at the time of his writing. The Court granted this first extension on January 11 and

gave Garcia two weeks, until January 25, to file an amended complaint. On

January 13, Garcia moved for a second extension of time. Garcia explained that

the prior lockdown had ended only on January 12 and that typing machines in the

prison library were inaccessible until January 16. The District Court denied

Garcia’s second Motion and explained that it raised the “same bases for requesting

an extension as his first.” This appeal followed.

                                          II.

      We review de novo a district court’s sua sponte dismissal under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim. Hughes v. Lott, 350 F.3d 1157,

1159−60 (11th Cir. 2003).

      We follow a “two-pronged approach” when evaluating a complaint. We

first sift out allegations that are “mere conclusory statements.” Ashcroft v. Iqbal,

556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). We then determine whether the

remaining allegations, taken as true, “plausibly suggest an entitlement to relief.”

Id. at 681, 129 S. Ct. at 1951.

      We hold a pro se complaint to “less stringent standards than formal

pleadings drafted by lawyers” and accordingly construe it “liberally.” Campbell v.

Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014) (citation omitted). We must


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not, however, “serve as de facto counsel” or “rewrite an otherwise deficient

pleading in order to sustain an action.” Id. at 1168–69 (quoting GJR Invs., Inc. v.

Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998)).

       We have jurisdiction to review the District Court’s sua sponte dismissal of

Garcia’s Complaint.2 We do not consider, however, new factual allegations that

Garcia raises in his brief on appeal but failed to plead in his Complaint. See

Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994) (“[A]n issue not raised in the

district court and raised for the first time in an appeal will not be considered by this

court.” (citation omitted)). Though Garcia included some of these allegations in

his Motion under Federal Rule of Civil Procedure 59, our task here is to review the

sufficiency of his pleadings. And a motion is not a pleading. Compare Fed. R.

Civ. P. 7(a) (pleadings), with id. 7(b) (motions). Should Garcia choose to refile

this suit, he can include the allegations in his new complaint. We also do not

       2
          Under Federal Rule of Appellate Procedure 4, the notice of appeal must be filed with
the clerk of the district court within 30 days of the “entry of the judgment or order appealed
from.” Fed. R. App. P. 4(a)(1)(A). When entry of judgment occurs turns on whether, under
Federal Rule of Civil Procedure 58(a), the judgment or order at issue must be set forth in a
“separate document.” Id. 4(a)(7). Rule 58(a) excludes a small set of judgments and orders from
the separate-document requirement, but orders dismissing a complaint, as is the order at issue
here, are not excluded. If a separate document is required, entry does not occur until the earlier
of the time when the district court satisfies the separate-document requirement or when 150 days
have run from when the order or judgment is posted to the district court’s docket under Federal
Rule of Civil Procedure 79(a). Fed. R. App. P. 4(a)(7)(A)(ii).
        The District Court here never set forth its dismissal of Garcia’s Complaint in a separate
document. As such, Garcia had until 150 days from September 28, 2016, when the District
Court issued its order dismissing his case. Because Garcia filed his notice of appeal with the
District Court on February 22, 2017, we can review the District Court’s dismissal of Garcia’s
Complaint.

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consider the District Court’s denial of Garcia’s Motion for Extension of Time

because he has failed to raise that issue on appeal. 3 See McGinnis v. Ingram

Equip. Co., 918 F.2d 1491, 1496 (11th Cir. 1990) (“A party normally waives its

right to argue issues not raised in its initial brief.” (citation omitted)).

                                               III.

       A federal court sitting in diversity jurisdiction must apply the substantive

law of the state in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct.

817 (1938). We review de novo a diversity court’s determinations of state law.

McMahan v. Toto, 256 F.3d 1120, 1130 (11th Cir. 2001), amended on reh’g, 311

F.3d 1077 (11th Cir. 2002).

       We now address the three possible meanings that the District Court gave to

Garcia’s Complaint.

                                               A.

       First, Garcia’s Complaint fails to state a claim for breach of contract. Under

Florida law, a breach of contract claim requires the plaintiff to plead formation of a

       3
          Even if Garcia had raised the issue on appeal, however, we would find no trouble
affirming the District Court’s Order. We review a district court’s denials of motions for
extensions of time, as well as other decisions related to docket management, for abuse of
discretion. See Young v. City of Palm Bay, 358 F.3d 859, 863−64 (11th Cir. 2004). In handling
these matters, the district court is entitled to a “range of options.” Id. at 863; see also In re
Rasbury, 24 F.3d 159, 168 (11th Cir. 1994) (noting that the “very concept of discretion
presupposes a zone of choice within which the trial courts may go either way” (citing United
States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989))). We cannot say that the District Court
abused its discretion because, among other reasons, Garcia offered no explanation for why he
could not work on his Complaint from December 28, 2016 to January 3, 2017 or from January
16 to January 25.

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contract, including offer, acceptance, consideration, and essential terms; material

breach; and damages. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir.

2009) (citing Friedman v. N.Y. Life Ins. Co., 985 So. 2d 56, 58 (Fla. Dist. Ct. App.

2008); then citing St. Joe Corp. v. McIver, 875 So. 2d 375, 381 (Fla. 2004))

(applying Florida law).

       The Complaint’s allegation that Diaz “breached their contract” is legally

insufficient on each of the elements with the exception, perhaps, of damages. The

Complaint does not allege how Diaz materially breached the contract, let alone the

existence of a contract to begin with. 4 Indeed, the Complaint indicates that Diaz

did in fact represent Garcia in his criminal proceeding, suggesting that he

materially performed on whatever contract they might have had. Without more

allegations, Garcia’s assertion that Diaz “wholly failed to perform the duties of his

representation” is nothing more than a “legal conclusion couched as a factual

allegation.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1950 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007)).

                                                 B.

       Second, Garcia’s Complaint fails to state a claim for negligent

misrepresentation. Garcia alleges that had he known that Diaz was being

investigated by the federal government for money laundering, he “would have

       4
         That he attaches the contract to his brief on appeal was of little help to the District Court
when it reviewed his Complaint in the first instance.
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never agreed to obtain his services.” Under Florida law, negligent

misrepresentation requires

        1) misrepresentation of a material fact,

        2) the representer either knew of the misrepresentation, made the
        misrepresentation without knowledge of its truth or falsity, or should
        have known the representation was false,

        3) the representer intended to induce another to act on the
        misrepresentation, and

        4) injury resulted to a party acting in justifiable reliance upon the
        misrepresentation.

See Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Cos., Inc., 607 F.3d

742, 747 (11th Cir. 2010) (quoting Baggett v. Electricians Local 915 Credit

Union, 620 So. 2d 784, 786 (Fla. Dist. Ct. App. 1993)) (applying Florida

law).

        The Complaint fails as to each of the four elements.

        First, the Complaint fails to plead that any misrepresentation occurred.

To be sure, misrepresentation can occur by omission, particularly when a

fiduciary relationship, like that of lawyer and client, exists. See 27 Fla. Jur.

2d Fraud and Deceit § 58 (“A fiduciary has a fundamental duty to furnish

information that entails . . . an affirmative duty to inform when . . . silence

might be harmful.”). Even a party who only seeks to become a fiduciary has

a duty to act in “utmost good faith.” Willis v. Fowler, 136 So. 358, 366 (Fla.


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1931). But the Complaint does not set forth the existence of a fiduciary

relationship or any other legal duty that Diaz was under to affirmatively

inform Garcia of the investigation that he faced.

      Second, the Complaint fails to plead that Diaz knew that he was under

investigation, let alone that he failed to inform Garcia of the investigation or

was negligent in failing to do so.

      Third, the Complaint fails to plead that Diaz omitted the information

with the purpose of securing the legal engagement.

      And fourth, the Complaint fails to plead an injury that resulted from

justifiable reliance. Though Garcia seeks relief of $250,000 that he paid to

Diaz, he never pleads the value of what he did receive in terms of legal

services, even if that value is zero. And negligent misrepresentation offers

no relief for Garcia’s “mental anguish/pain and suffering,” for which he

seeks $500,000. See, e.g., Ragsdale v. Mount Sinai Med. Ctr. of Miami, 770

So. 2d 167, 169 (Fla. Dist. Ct. App. 2000) (citing Restatement (Second) of

Torts § 552 (Am. Law Inst. 1977)) (limiting recovery to “pecuniary loss”).

                                          C.

      Third, and last, Garcia’s Complaint fails to state a claim for legal

malpractice. Under Florida law, one who brings a cause of action for legal

malpractice in a criminal prosecution must first “obtain appellate or postconviction


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relief.” Steele v. Kehoe, 747 So. 2d 931, 933 (Fla. 1999). This Court affirmed

Garcia’s conviction on direct appeal, and when the District Court denied Garcia’s

petition for a writ of habeas corpus under 28 U.S.C. § 2255, we declined to grant

him a certificate of appealability. Garcia, 533 F. App’x 967; Garcia, No. 16-

10439-F (11th Cir. Nov. 10, 2016). As such, Garcia has obtained no “relief” for

his conviction and thus has no cognizable claim under Florida law for legal

malpractice. See Steele, 747 So. 2d at 933.

                                         IV.

      For these reasons, the District Court’s Order Dismissing Case is

AFFIRMED. Because Plaintiff’s Complaint was dismissed without prejudice, he

is free to file a new complaint that, unlike the one before us today, pleads a cause

of action upon which relief can be granted.




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