                      John MALOWNEY, Susan L. Malowney, Plaintiffs-Appellants,

                                                     v.

       FEDERAL COLLECTION DEPOSIT GROUP, Charles K. Mayall, et al., Defendants-Appellees.

                                                No. 98-2610.

                                       United States Court of Appeals,

                                              Eleventh Circuit.

                                               Oct. 29, 1999.

Appeal from the United States District Court for the Middle District of Florida.(No. 96-2585-CIV-T-24C),
Susan C. Bucklew, Judge.

Before CARNES and BARKETT, Circuit Judges, and PAINE*, Senior District Judge.

          CARNES, Circuit Judge:

          The plaintiffs, John and Susan Malowney, appeal from the district court's order dismissing Count I

of their amended complaint. For the reasons set forth below, we affirm.

                                            I. BACKGROUND

          The facts, as alleged in the Malowneys' amended complaint, are as follows. In 1987, Freedom

Savings and Loan Association ("Freedom") obtained a state court judgment against John Malowney, in the

Circuit Court for Hillsborough County, Florida. In an effort to collect the judgment, Freedom hired Charles

and Justin Mayall. After the Mayalls' efforts proved unsuccessful, Freedom, on the advice of its lawyer, Kass

Hodges, filed with the Clerk of the Circuit Court of Hillsborough County, Richard Ake, a motion for a writ

of garnishment pursuant to section § 77.03 of the Florida Code.

          On May 17, 1995, Ake issued the writ of garnishment, which was directed to the Army National

Bank where John Malowney and his wife, Susan, maintained a checking account. On May 26, 1995, Army

National Bank, as garnishee, froze the funds in the Malowneys' checking account. As a result, the




   *
    Honorable James C. Paine, Senior U.S. District Judge for the Southern District of Florida, sitting by
designation.
Malowneys' funds were made unavailable to them and the Bank refused to honor checks written on their

account.

        The complaint is void of any indication that the Malowneys received notice as mandated by the

Florida post-judgment garnishment statute, section § 77.055 of the Florida Code. That section requires the

judgment creditor to serve, by mail, "a copy of the writ, a copy of the [garnishee's] answer, a notice, and a

certificate of service" on the judgment debtor. The required notice must advise the judgment debtor that he

may move to dissolve the writ under section § 77.07(2) of the Florida Code, and that he may have exemptions

from the garnishment which can be asserted as defenses. The Malowneys did not become aware of the

garnishment until they contacted the Bank concerning their returned checks.

           The only funds in the Malowneys' checking account at the time of garnishment were social security

disability benefits and United States Army retirement benefits, both of which are exempt from garnishment

under federal law. All of the funds attached by the writ of garnishment were subject to exemption under

federal law. Pursuant to section § 77.07 of the Florida Code, a judgment debtor may, by motion, obtain

dissolution of a writ of garnishment by proving that the attached funds are exempt from garnishment under

federal or state law. In this case, the writ of garnishment against the Malowneys' checking account, which

contained only exempt funds, was dissolved on July 14, 1995 by order of the state circuit court.

        On December 17, 1996, the Malowneys filed pro se their first complaint in federal district court

naming Kass Hodges, Thomas Avrutis, Charles and Justin Mayall, the Federal Collection Deposit Group,

First National Credit, Inc., Freedom Savings and Loan Association, and Richard Ake, in his official capacity

as Clerk of the Circuit Court, as defendants. The complaint alleged claims for violations of various state and

federal laws.

           After obtaining counsel, the Malowneys filed an amended complaint on July 11, 1997.1 The only

count relevant to this appeal is Count I, because that is the only count the Malowneys discuss in their briefs

  1
  An amended complaint supersedes an original complaint. See Dussouy v. Gulf Coast Inv. Corp., 660 F.2d
594, 601 (5th Cir.1981).

                                                      2
to this Court. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n. 1 (11th Cir.1998) (issues not argued on appeal

are deemed abandoned); Marek v. Singletary, 62 F.3d 1295, 1298 n. 2 (11th Cir.1995) ("Issues not clearly

raised in the briefs are considered abandoned.")2 In Count I, the Malowneys sued defendant Ake in his

official capacity seeking only declaratory relief pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment

Act, 28 U.S.C. § 2201.3 The Malowneys did not seek damages of any kind in Count I of the amended

complaint. Specifically, they sought a judgment declaring the notice provisions of section § 77.055 of the

Florida Code unconstitutional because those provisions: (1) failed to afford the plaintiffs due process; and

(2) violated the Supremacy Clause of the Constitution.4



  2
   In their opening brief, at pages 10-11, the Malowneys describe the case as an action "against Richard Ake,
who is the Clerk of the Circuit Court of Hillsborough County, Florida, seeking a declaration that the present
system for post judgment garnishment as set forth in Chapter 77 of the Florida Statutes is unconstitutional."
That is a description of Count I of the amended complaint, which was against Ake and no other defendant,
and which sought only declaratory relief. In their reply brief at page 8, the Malowneys expressly declare "that
no monetary damages are sought against Ake, that only declaratory relief, which is prospective in nature, is
sought." Again, that is about Count I and Ake, not any other counts or defendants. See n. 4, infra.
  3
    Count I also sought certification of a defendant class action pursuant to Federal Rule of Civil Procedure
23(b)(2). The complaint named Ake as the class representative of all clerks of the circuit courts of Florida,
in their official capacity. The district court did not grant class certification, and the Malowneys have not
argued to us that the failure to do so was error.
  4
    The Malowneys' amended complaint also contained Counts II and III. In Count II, the Malowneys sought
class certification under Federal Rule of Civil Procedure 23(b)(3) against all defendants "except Ake." (We
note that the words "except Ake" are manually crossed out in Count II of the amended complaint in the
Record Excerpts which the Malowneys filed with us in this appeal. However, the copy of the amended
complaint contained in the official record does not have the language "except Ake" crossed out in that count.
It does not matter, because the Malowneys make no arguments concerning Count II, but if they did we would
accept as accurate the official record.) In Count II, which explicitly excluded Ake as a defendant, the
Malowneys asked for all relief permitted under 42 U.S.C. § 1983, including money damages.

               In what they labeled as "Alternate Count II" in the complaint, the Malowneys claimed
        wrongful garnishment under state law, and sought damages against all defendants, "save Ake." In
        Count III, the Malowneys alleged violations of the Fair Credit Reporting Act against various
        defendants, but not Ake.

                 The district court dismissed Count II, "Alternate Count II", and Count III of the amended
        complaint. Because the Malowneys have not argued before us that the dismissal of those counts was
        error, any issues involving them have been abandoned. See n. 2, supra, and the accompanying text.


                                                      3
        Subsequently, the State of Florida ("State") intervened to address the constitutionality of Florida's

post-judgment garnishment statute. The State asked the district court to dismiss Count I of the amended

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), because the Malowneys had suffered no

constitutional deprivation and as a result their claim was not cognizable.

        On April 20, 1998, the district court dismissed the amended complaint, concluding in regard to Count

I that the Florida post-judgment garnishment statute satisfies due process and is constitutional because it

provides sufficient notice and an adequate opportunity to be heard. Accordingly, the court concluded that

Count I failed to state a claim upon which relief could be granted.

        The Malowneys contend that the district court's dismissal of Count I of the amended complaint was

error. They argue that Florida's post-judgment garnishment statute is unconstitutional, and that they are

entitled to a declaratory judgment pursuant to either 42 U.S.C. § 1983 or 28 U.S.C. § 2201, which should

state that: (1) the statute violates due process, and (2) the statute is invalid under the Supremacy Clause of

the Constitution.

                                             II. DISCUSSION

         Before we can address whether the district court erred in finding, on the merits, that Florida's

post-judgment garnishment statute was constitutional, we must address whether we have jurisdiction over this

appeal. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990)

(federal courts are under an independent obligation to examine their own jurisdiction). Jurisdictional issues

are questions of law which we decide de novo. See, e.g., Triggs v. John Crump Toyota, Inc., 154 F.3d 1284,

1287 (11th Cir.1998).

        Because the Malowneys failed to allege in their amended complaint any facts from which we could

reasonably conclude that they will suffer future injury from the application of the statute they challenge as

unconstitutional, we conclude they lack standing under either 42 U.S.C. § 1983 or 28 U.S.C. § 2201 to obtain

declaratory relief concerning the statute, and we affirm the district court's dismissal of the amended



                                                      4
complaint. But we base our affirmance on that ground, instead of the ground used by the district court, which

was that the complaint failed to state a cause of action.

         The federal courts are confined by Article III of the Constitution to adjudicating only actual "cases"

and "controversies." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The

Article III case or controversy requirement sets fundamental limits on the federal judiciary's power in our

society. Id. One of the most important of these constitutionally-based limits is the requirement that a litigant

have "standing" to invoke the power of a federal court. "In essence, the question of standing is whether the

litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin,

422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In order to demonstrate that a case or

controversy exists to meet the Article III standing requirement when a plaintiff is seeking injunctive or

declaratory relief, a plaintiff must allege facts from which it appears there is a substantial likelihood that he

will suffer injury in the future. See City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75

L.Ed.2d 675 (1983); Cone Corp. v. Florida Dep't of Transp., 921 F.2d 1190, 1205 (11th Cir.1991).

         Consistent with the "cases" and "controversies" requirement of Article III, the Declaratory Judgment

Act, 28 U.S.C. § 2201, specifically provides that a declaratory judgment may be issued only in the case of

an "actual controversy." See Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th Cir.1985). Based on the facts

alleged, there must be a substantial continuing controversy between two adverse parties. Id. at 1552. "The

plaintiff must allege facts from which the continuation of the dispute may be reasonably inferred.

Additionally, the continuing controversy may not be conjectural, hypothetical, or contingent; it must be real

and immediate, and create a definite, rather than speculative threat of future injury." Id. (internal quotations

omitted).

         Thus, in order for this Court to have jurisdiction to issue a declaratory judgment, which is the only

redress sought by the Malowneys in Count I, they must assert a reasonable expectation that the injury they

have suffered will continue or will be repeated in the future. See Emory, 756 F.2d at 1552. "The remote



                                                        5
possibility that a future injury may happen is not sufficient to satisfy the 'actual controversy' requirement for

declaratory judgments." Id. In this case, treating the allegations in the complaint as true and liberally

construing the complaint in favor of the Malowneys, we conclude the amended complaint does not contain

any allegations which could reasonably support a finding that the Malowneys are likely to be subject to future

injury from the application of the statute they challenge.5

          The complaint does not allege that the Malowneys have checking account funds likely to be subject

to garnishment in the future. It does not even allege that the Malowneys are still judgment debtors. Even if

we assume that the Malowneys still owe a judgment debt to Freedom, Freedom is now on notice that the

Malowneys' checking account funds are exempt from garnishment under federal law. There is no basis to

infer, and certainly it is not alleged, that Freedom will wrongfully attempt to have garnishment issued against

an account it now knows to contain exempt funds. Perhaps we could speculate that the Malowneys are now,

or will in the near future be, indebted to a different judgment creditor and as a result will have a garnishment

issued against them under the challenged Florida statute. But that possibility is too speculative a basis upon

which to rest jurisdiction. It is, in the words of Emory v. Peeler, 756 F.2d at 1552, "conjectural, hypothetical,

or contingent," and not "real and immediate." There must be a substantial likelihood that the plaintiff will

suffer future injury: a "perhaps" or "maybe" chance is not enough. See Lyons, 461 U.S. at 103, 103 S.Ct.

1660; Cone Corp., 921 F.2d at 1205.6


  5
    Although we must review a complaint to determine whether "it appears beyond a doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief" Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), when considering a motion to dismiss for failure to state
a claim, we may look only to the facts alleged in the complaint and not beyond. See Milburn v. United States,
734 F.2d 762, 765 (11th Cir.1984). The facts alleged in the complaint are sparse.
      6
     Finberg v. Sullivan, 634 F.2d 50, 55 (3rd Cir.1980), involved different facts, because in that case the
plaintiff remained a judgment debtor, and she was an elderly widow on a modest income, from which the
court inferred that the judgment was likely to remain unsatisfied for some time. As we have stated, the
Malowneys have not even alleged that they are still judgment debtors, much less that they are likely to remain
such for some time. Accordingly, we need not and do not decide whether the facts in Finberg would be
sufficient to meet the strictures of our Emory decision.

                 Further, in this case we hold there is no justiciable controversy because the Malowneys lack

                                                       6
        Besides, the Malowneys' funds were released from attachment after a court found they were exempt

under federal law, and the Malowneys' bank is now on notice that their checking account funds are exempt

from attachment. There is no reasonable basis to believe that the bank will freeze the Malowneys' funds again

and risk liability for doing so, since the bank now knows that the funds are exempt. The Malowneys have

not alleged that their account currently contains any funds other than exempt funds, nor have they alleged that

they have any other accounts. The mere remote possibility that in some imaginable circumstance the

Malowneys could be subject to the challenged Florida statute again is "too remote to be labeled a

controversy." Emory, 756 F.2d at 1552.

         The Malowneys argue that since they have alleged they were subject to an injury in the past, the

freezing of their assets without adequate notice as required by due process, they have suffered "an invasion

of a legally protected interest which is ... concrete and particularized." Lujan v. Defenders of Wildlife, 504

U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Injury in the past, however, does not support

a finding of an Article III case or controversy when the only relief sought is a declaratory judgment. See

Emory, 756 F.2d at 1552. We repeat: The Malowneys have only raised before us the dismissal of Count I,

and that count sought only declaratory relief.

        To sum up, the Malowneys' claim for declaratory judgment fails to satisfy the "case or controversy"

requirement of Article III or the "actual controversy" requirement of 28 U.S.C. § 2201. See Lyons, 461 U.S.

at 103, 103 S.Ct. 1660, Emory, 756 F.2d at 1552. Therefore, a declaration that the Florida post-judgment

garnishment statute as applied in the past to these plaintiffs is unconstitutional "would [be] nothing more than

a gratuitous comment without any force or effect." Northern Virginia Women's Medical Center v. Balch, 617

F.2d 1045, 1049 (4th Cir.1980). The Malowneys lack standing to bring an action for declaratory relief, and

Count I of the amended complaint should have been dismissed on that ground. Because they have not argued




        standing. We never reach the mootness issue.

                                                       7
to us that dismissal of the remainder of the amended complaint was error, the judgment of the district court

is due to be affirmed.

        AFFIRMED.7




   7
    Appellant's motion for attorney's fees is denied.

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