            Case: 15-11477   Date Filed: 03/22/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11477
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 6:11-cv-01266-GAP-GJK



DAVID ACOSTA,

                                                            Plaintiff-Appellant,

                                   versus

JAMES A. GUSTINO, P.A.,
JAMES A. GUSTINO,

                                                         Defendants-Appellees,

TAYLOR & CARLS, P.A., et al.,

                                                                     Defendants.

                       ________________________

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

                             (March 22, 2016)
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Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant David Acosta brought this Fair Debt Collection Practices

Act (“FDCPA”) suit against Defendants-Appellees James Gustino and his law

firm, James A. Gustino, P.A. (the “Firm”) (collectively, “Defendants”), arising out

of Defendants’ attempts to collect a debt from Acosta on behalf of a homeowners

association. Following discovery, the district court denied Acosta’s motion for

summary judgment, and the case proceeded to trial before a federal jury. At the

close of Acosta’s case-in-chief, Defendants moved for judgment as a matter of law

under Rule 50(a), Fed. R. Civ. P. The district court granted the motion, concluding

that the evidence presented at trial was insufficient for a reasonable jury to find

that Defendants were “debt collectors” within the meaning of the FDCPA. Upon

entry of judgment in favor of Defendants, Acosta appealed.

      On appeal, Acosta, who has been counseled throughout these proceedings,

argues that the district court erred in denying his pre-trial motion for summary

judgment on two grounds. First, he argues, the court erred as a matter of law in

concluding that a letter from a debt collector to a debtor’s attorney is not an

actionable “communication” under the FDCPA. Second, he contends, the court

erroneously found that the Firm’s failure to answer his First Request for




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Admissions did not constitute technical admissions that bound Gustino, the Firm’s

sole practitioner and owner, for purposes of summary judgment.

      These arguments regarding the propriety of summary judgment are non-

starters, however, because a party may not appeal an order denying summary

judgment after a full trial on the merits has occurred. Ortiz v. Jordan, 562 U.S.

180, 183-84, 131 S. Ct. 884, 888-89 (2011) (“May a party, as the Sixth Circuit

believed, appeal an order denying summary judgment after a full trial on the

merits? Our answer is no.”) (footnote omitted); Lind v. United Parcel Serv., Inc.,

254 F.3d 1281, 1286 (11th Cir. 2001) (holding that we “will not review the pretrial

denial of a motion for summary judgment after a full trial and judgment on the

merits”). An order denying summary judgment is “simply a step along the route to

final judgment.” Ortiz, 562 U.S. at 184, 131 S. Ct. at 889. “Once the case

proceeds to trial, the full record developed in court supersedes the record existing

at the time of the summary-judgment motion.” Id.

      In Lind, we recognized other adequate remedies available to a party who

believes that the district court improperly denied its motion for summary judgment.

Lind, 254 F.3d at 1285. First, a party may move to have court to certify the denial

of summary judgment for interlocutory appeal under 28 U.S.C. § 1292(b). Id.

Second, a party may move for judgment as a matter of law pursuant to Rule 50,




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Fed. R. Civ. P., and then seek appellate review of the motion if it is denied. Id.

Acosta did neither.

        A third option, as this case demonstrates, would have been for Acosta to

challenge the district court’s order granting Defendants’ motion for judgment as a

matter of law under Rule 50. Acosta, however, barely references that order on

appeal. The only reference to the order in his initial brief is in a section detailing

the procedural history of the case: “After presentation of the plaintiff’s case in

chief Appellees presented an ore tenus Rule 50 motion for Judgment as a Matter of

Law which the district court granted.”         Acosta’s Initial Br. at 5.   His actual

arguments, though, relate entirely to the district court’s order denying his motion

for summary judgment, which, as mentioned above, is a decision we cannot

review. See Ortiz, 562 U.S. at 183-84, 131 S. Ct. at 888-89; Lind, 254 F.3d at

1286.

        Nor can we say that Acosta’s briefing challenges the basis of the district

court’s Rule 50 ruling. In granting judgment as a matter of law to Defendants after

Acosta’s case-in-chief, the district court did not rule that a debt-collection letter to

an attorney is not an actionable “communication” under the FDCPA. Rather, the

court found that Acosta failed to present evidence sufficient for a jury to conclude

that Defendants were “debt collectors” within the meaning of the FDCPA.

Specifically, the district court determined that there was “no evidence with respect


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to the frequency or consistency or percentage or any other measure by which one

could determine that the principal purpose of Mr. Gustino’s practice [was] that of a

debt collector or that he regularly engage[d] in that activity.” Because Defendants

can be held liable under the FDCPA only if they were “debt collectors,” see 15

U.S.C. § 1692a(6) (defining the term), the court granted Defendants’ motion for

judgment as a matter of law.

       Acosta does not advance any argument that the district court’s Rule 50 order

was erroneous. By failing to challenge the basis of the district court’s judgment in

this case—that the evidence presented at trial was insufficient for a jury to

conclude that Defendants were “debt collectors”—Acosta has abandoned any

challenge of that ground.1 See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d

678, 680 (11th Cir. 2014) (“When an appellant fails to challenge properly on

appeal one of the grounds on which the district court based its judgment, he is

deemed to have abandoned any challenge of that ground, and it follows that the

judgment is due to be affirmed.”). Accordingly, the district court’s judgment is

due to be affirmed.

       AFFIRMED.



       1
          To be sure, Acosta claims that Defendants, by failing to respond to his request for
admissions, admitted to being “debt collectors” for purposes of summary judgment, but he
makes no claim that the court erred in failing to treat this purported admission as binding at trial
or in refusing to allow its admission into evidence.
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