Alina Schuh v. American Express Bank, FSB

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 2, 2020
• Docket: 18-12753
• Status: Unpublished

Opinion

Case: 18-12753 Date Filed: 04/02/2020 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-12753 ________________________

D.C. Docket No. 17-cv-24345-KMW

ALINA SCHUH,

Plaintiff-Appellant,

versus

AMERICAN EXPRESS BANK, FSB,

Defendant-Appellee.

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

(April 2, 2020)

Before ED CARNES, Chief Judge, LUCK and MARCUS, Circuit Judges.

PER CURIAM:

Alina Schuh appeals the district court’s dismissal of her amended complaint

that American Express violated the federal fair credit reporting act and the state Case: 18-12753 Date Filed: 04/02/2020 Page: 2 of 3

consumer collection practices act. We affirm because even if we assumed the legal

consequences that flowed from the Florida county court order of dismissal were

factual issues that could have been investigated by a furnisher like American Express

under 15 U.S.C. section 1681s-2(b)(1) – and we doubt that they were – the order

could not serve as res judicata or collateral estoppel in this later federal lawsuit.

Florida law governs our analysis and compels our conclusion. See Cmty. State Bank

v. Strong, 651 F.3d 1241, 1263 (11th Cir. 2011) (“In considering whether to give

preclusive effect to state-court judgments under res judicata or collateral estoppel,

the federal court must apply the rendering state’s law of preclusion.”).

The order of dismissal cannot serve as res judicata because the facts essential

to the maintenance of Schuh’s federal action – whether American Express conducted

a reasonable investigation as required by section 1681s-2(b)(1) – were not identical

to those facts which were essential to the maintenance of the county court action –

whether Schuh owed $12,000 under her contract with American Express. See

McDonald v. Hillsborough Cty. Sch. Bd., 821 F.2d 1563, 1565 (11th Cir. 1987)

(“Under Florida law, the doctrine of res judicata applies when four ‘identities’ exist:

(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of

the parties; and (4) identity of the quality of the person for or against whom the claim

is made. . . . As for the second element, identity of the cause of action, the test is

whether facts essential to the maintenance of this federal action are identical to those

2 Case: 18-12753 Date Filed: 04/02/2020 Page: 3 of 3

facts which were essential to the maintenance of the prior state action.” (citations

omitted)). The order cannot serve as collateral estoppel because the county court

case was not actually or fully litigated and decided; the case was dismissed as a

sanction for failing to comply with the county court’s orders. See Quinn v. Monroe

Cty., 330 F.3d 1320, 1329 (11th Cir. 2003) (“Under Florida law, collateral estoppel

applies if (1) an identical issue, (2) has been fully litigated, (3) by the same parties

or their privies, and (4) a final decision has been rendered by a court of competent

jurisdiction.”); Zikofsky v. Mktg. 10, Inc., 904 So. 2d 520, 525 (Fla. 4th DCA 2005)

(“Collateral estoppel applies even when a present and former cause of action are

different and it bars relitigation of specific issues – ‘that is to say points and

questions’ – that were actually litigated and decided in the former suit.”).

As to Schuh’s state consumer collection protection act claim, we agree with

the district court that her citations to, and reliance on, definition sections in the state

statute did not “give Defendant adequate notice of the claims against it and the

grounds upon which the claims rest.” Schuh was given the opportunity to amend

but she refused, telling the district court that any further amendment would be futile.

AFFIRMED.