         Case: 14-10331   Date Filed: 08/22/2014   Page: 1 of 9


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 14-10331
                      Non-Argument Calendar
                    ________________________

              D.C. Docket No. 8:13-cv-02502-JDW-EAJ



CHARLES JOSEPH KOHLER,

                                           Plaintiff - Appellant,

versus

MARIAN GARLETS,
MARGERY L. BAKER REVOCABLE TRUST,
dated February 6, 2009, et al.,
DAVID C. GILMORE,
MARK A. SPENCE,

                                           Defendants - Appellees.

                    ________________________

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

                          (August 22, 2014)
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Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Charles Kohler appeals the district court’s dismissal of his pro se complaint

brought pursuant to 42 U.S.C. § 1983. Due to alleged “defects in his commercial

contract, promissory note and mortgage note,” Mr. Kohler argues that “his rights to

due process and equal protection of the law [were] violated” by the mortgage

foreclosure on his property in Tarpon Springs, Florida. Appellant’s Br. at 2. Mr.

Kohler brought this federal action against the mortgagor, Marian Garlets, as

Successor Trustee of the Margery L. Baker Revocable Trust, and the attorneys—

Mark A. Spence and David Gilmore—who represented Ms. Garlets and the Trust

during the foreclosure and related bankruptcy proceedings.

      On appeal, Mr. Kholer challenges the district court’s rulings that (1) federal

court jurisdiction over his claims was barred by the Rooker-Feldman doctrine, and

(2) he failed to state a cause of action under § 1983 because the defendants were

not state actors. In addition, he argues that the district court violated his due

process rights by denying him an opportunity “to be heard on his claims.”

Appellant’s Br. at 2. Following a review of the record and the parties’ briefs, we

affirm.




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                                          I.

      We review the district court’s application of the Rooker-Feldman doctrine

de novo. See Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1069 (11th

Cir. 2013). The Rooker-Feldman doctrine derives from two Supreme Court cases,

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462 (1983). It bars “cases brought by state-court

losers complaining of injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005).

      On appeal, Mr. Kohler asserts that the Rooker-Feldman doctrine does not

apply in this case because “the instant matter arose from a Federal bankruptcy

case.” Appellant’s Br. at 3. We find no support for this assertion anywhere in the

record, and Mr. Kohler cites to none. Moreover, because Mr. Kohler raised this

argument for the first time on appeal, it is not properly before us. See Access Now,

Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

      To the extent Mr. Kohler claims that he was injured by the state court’s

foreclosure order and seeks “a determination as to the title and rights and interests”

of the foreclosed-upon property, see Complaint, D.E. 1 at 6, the district court

properly ruled that his claims were barred by the Rooker-Feldman doctrine, as


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these claims are inextricably intertwined with the state court’s foreclosure

judgment.    See Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009)

(explaining that the doctrine “applies both to federal claims raised in the state court

and to those inextricably intertwined with the state court’s judgment”) (internal

quotation marks omitted). See also Brown v. R.J. Reynolds Tobacco Co., 611 F.3d

1324, 1330 (11th Cir. 2010) (“The doctrine bars the losing party in state court

‘from seeking what in substance would be appellate review of the state judgment in

a United States district court, based on the losing party’s claim that the state

judgment itself violates the loser’s federal rights.’”) (quoting Johnson v. De

Grandy, 512 U.S. 997, 1005-06 (1994)).

      Construed liberally, Mr. Kohler’s complaint could also be read to raise an

independent damages claim against Ms. Garlets and her attorneys based on alleged

misconduct during the state foreclosure proceedings. See D.E. 1 at 6 (alleging that

the defendants knew of certain defects in the mortgage documents that would have

barred their foreclosing on his property but continued with the foreclosure action

for their “own personal gain”). Because a challenge to the defendants’ conduct in

state proceedings does not necessarily seek appellate review and reversal of the

state court judgment, the district court erred in ruling that such a claim was barred

by the Rooker-Feldman doctrine. See Truong v. Bank of Am., N.A., 717 F.3d 377,

383 (5th Cir. 2013) (finding that the Rooker–Feldman doctrine did not bar a


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challenge to a foreclosure when “the damages [the Appellant] requested were for

injuries caused by the banks’ actions, not injuries arising from the foreclosure

judgment”); McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006) (holding

that the Rooker-Feldman doctrine does not bar “independent claims that . . . state

court judgments were procured by certain Defendants through fraud,

misrepresentation, or other improper means”).

                                         II.

      We review de novo a district court’s dismissal for failure to state a claim

under Rule 12(b)(6). Butler v. Sheriff of Palm Beach Cnty., 685 F.3d 1261, 1265

(11th Cir. 2012). The complaint need not contain detailed factual allegations in

order to state a claim, but the plaintiff must allege sufficient facts to make the

claim “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that “the

tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice” to meet

this standard). We hold pro se pleadings to “less stringent standards than formal

pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

      Although we conclude that the district court had jurisdiction to consider

Mr. Kohler’s claim for damages, its dismissal under Federal Rule of Civil


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Procedure 12(b)(6) was proper. To state a claim for relief in an action brought

under § 1983, a plaintiff must allege sufficient facts to establish that he or she was

“deprived of a right secured by the Constitution or laws of the United States, and

that the alleged deprivation was committed under color of state law.” Am. Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). A private party may be

considered a state actor for purposes of § 1983 only in the “rare circumstances”

that one of three tests is satisfied: the state compulsion test, the public function test,

or the nexus/joint action test. See Rayburn ex rel. Rayburn v. Hogue, 241 F.3d

1341, 1347 (11th Cir. 2001). Although Mr. Kohler correctly identifies these tests

in his brief, his complaint fails to allege any facts that could support a § 1983 claim

against any of the defendants. Messrs. Gilmore and Spence are merely private

attorneys who acted on behalf of their clients, Marian Garlets and the Margery L.

Baker Revocable Trust, in a state foreclosure action and related bankruptcy

proceedings. “[O]ne who has obtained a state court order or judgment is not

engaged in state action merely because it used the state court legal process.” Cobb

v. Georgia Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985).

      Mr. Kohler is correct that private citizens may be “liable as state actors when

they conspire with government officials to deprive people of their rights.”

Appellant’s Br. at 8. But, in order to succeed on such a claim, “the plaintiff must

plead in detail, through reference to material facts, the relationship or nature of the


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conspiracy between the state actor(s) and the private persons.” Harvey v. Harvey,

949 F.2d 1127, 1133 (11th Cir. 1992). Mr. Kohler failed to allege any such facts

here, and thus the district court correctly determined that he failed to “plead

conspiracy sufficiently to transform the [private] appellees into state actors.” See

id.

                                         III.

      Finally, Mr. Kohler appears to argue that the district court violated his due

process rights by failing to notify him of a “hearing date once Appellee[s] [i.e., the

defendants] filed their motion[s] to dismiss.” Appellant’s Br. at 2. The defendants

filed and served their motions to dismiss on October 14 and 19, 2013. See D.E. 4,

6. Under Rule 3.01(b) of the Local Rules for the District Court for the Middle

District of Florida, a party opposing a motion is afforded 14 days in which to file a

response in opposition to the request. Mr. Kohler neither filed a written response

nor requested a hearing on the motions to dismiss within the allotted time, and the

district court dismissed his complaint on December 30, 2013.

      The district court was under no duty to provide Mr. Kohler with an oral

hearing on the motions to dismiss. “The circuit courts that have addressed the

question of whether an oral hearing is required on motions to dismiss in civil cases

have uniformly held that no oral hearing is required by the Due Process Clause.”

Green v. WCI Holdings Corp., 136 F.3d 313, 316 (2d Cir. 1998) (collecting cases).


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Cf. Erco Indus. Ltd. v. Seaboard Coast Line R. Co., 644 F.2d 424, 431 (5th Cir.

1981) (“Although Rule 56 requires notice to an adverse party and a hearing, the

hearing need not be an oral or formal evidentiary hearing. . . . The district court

did not deny the railroads due process by declining to hold an oral hearing on

Erco’s motion for summary judgment.”).1 As the Supreme Court has explained,

“[c]ertainly the Constitution does not require oral argument in all cases where only

insubstantial or frivolous questions of law, or indeed even substantial ones, are

raised.” Fed. Commc’ns Comm’n v. WJR, The Goodwill Station, 337 U.S. 265,

276 (1949) (“[T]he right of oral argument as a matter of procedural due process

varies from case to case in accordance with differing circumstances. . . .”).

       Because Mr. Kohler received service of the motions to dismiss and makes no

arguments as to why he could not comply with the time limits set forth in Local

Rule 3.01(b), we hold that the district court afforded him sufficient notice and an

opportunity to be heard (by filing a written response) on the motions to dismiss.

See Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (“Despite construction

leniency afforded pro se litigants, we nevertheless have required them to conform

to procedural rules.”).

                                                    IV.


1
 This Court has adopted as binding precedent all decisions of the former Fifth Circuit Court of
Appeals announced prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
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The district court’s dismissal of Mr. Kohler’s complaint is affirmed.

AFFIRMED.




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