Clyde J. Holliday, III v. Markel Syndicate 3000 at Underwriters at Lloyds

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 30, 2020
• Docket: 18-15279
• Status: Unpublished

Opinion

Case: 18-15279 Date Filed: 01/30/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15279 Non-Argument Calendar ________________________

D.C. Docket No. 8:18-cv-01327-VMC-CPT

CLYDE J. HOLLIDAY, III,

Plaintiff-Appellant,

versus

MARKEL SYNDICATE 3000 AT UNDERWRITERS AT LLOYDS, London and their Heirs, appointees, assigns, and affiliates,

Defendant-Appellee.

________________________

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

(January 30, 2020)

Before JORDAN, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM: Case: 18-15279 Date Filed: 01/30/2020 Page: 2 of 5

Clyde Holliday appeals the district court’s dismissal of his pro se complaint

alleging malicious prosecution under Florida law. Holliday, once again proceeding

pro se, argues that the court erred in concluding that his complaint was a new legal

action and that the statute of repose for fraud claims did not preserve his claims.

The allegations advanced in the complaint are well-known to both parties.

As relevant to this appeal, Holliday sought to bring a malicious prosecution claim

against his former employer, Markel, after Markel sent a letter to the state of

Florida claiming that Holliday embezzled over $300,000 from the company.

Holliday was charged with a felony, but the case was later subject to a notice of

nolle prosequi on October 8, 2013. Holliday filed his complaint on June 4, 2018.

The district court dismissed the complaint as time-barred, explaining that the

action was subject to the statute of limitations for malicious prosecution because it

was filed more than four years after the prosecution was terminated in the

plaintiff’s favor. See Fla. Stat. § 95.11(3)(o); Manuel v. City of Joliet, 137 S. Ct.

911, 921 (2017).

We review de novo a district court’s dismissal of a complaint for failure to

state a claim. Cromartie v. Shealy, 941 F.3d 1244, 1251 (11th Cir. 2019) (citing

Alvarez v. Att’y Gen., 679 F.3d 1257, 1260–61 (11th Cir. 2012)). The district

court’s interpretation and application of the statute of limitations is a question of

law that we review de novo. Lawrence v. Florida, 421 F.3d 1221, 1224 (11th Cir.

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2005) (citation omitted), aff’d, 549 U.S. 327 (2007). Issues not briefed on appeal

are deemed abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008).

The complaint is viewed in the light most favorable to the plaintiff, and all

the plaintiff’s well-pleaded facts are accepted as true. Am. United Life Ins. Co. v.

Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). Pro se pleadings are held to a

less strict standard than counseled pleadings and are liberally construed. Alba v.

Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (citation omitted). In order to

survive a motion to dismiss, however, the plaintiff’s complaint must contain facts

sufficient to support a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009). The district court must accept the plaintiff’s allegations as true but is

not required to accept his legal conclusions. Id. at 678. A threadbare recital of the

elements of a cause of action, supported by conclusory statements, does not

suffice. Id.

Dismissal under Fed. R. Civ. P. 12(b)(6) on statute of limitations grounds is

appropriate when it is apparent the claim is time-barred from the face of the

complaint. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

We conclude that the district court did not err in dismissing Holliday’s complaint

because Holliday’s claim was time-barred on its face. As previously noted, the

statute of limitations for malicious prosecution under Florida law is four years, and

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the statute of limitations begins to run when the prosecution is terminated in the

plaintiff’s favor. See Fla. Stat. § 95.11(3)(o). Holliday filed his claim after the

four-year period had expired.

Holliday argues that he had twelve years to bring his action, noting that

under Florida law a fraud claim must be brought no later than 12 years after the

alleged fraudulent action occurred. Fla. Stat. § 95.031(2)(a). However, the statute

of limitations to bring a claim of fraud under Florida law is four years from the

date the claim accrues—not twelve. Fla. Stat. § 95.11(3)(j). These provisions

contain two separate limitations: the twelve-year repose period begins from the

date the alleged fraud was committed, whereas the four-year statute of limitations

begins once the fraud is discovered (or should have been discovered). Even if the

pro se complaint is construed as containing a fraud claim, it is still time-barred.

Holliday also appears to argue that the four-year period could not have

lapsed due to a previous action he filed making similar claims. When an action is

dismissed, however, the statute of limitations is not tolled during the period that the

dismissed action was pending—it instead runs as if the dismissed action had never

been filed. See Justice v. United States, 6 F.3d 1474, 1478–79 (11th Cir. 1993).

Here, the district court did not err in dismissing Holliday’s complaint for

failure to state a claim because the four-year statute of limitations for malicious

prosecution had expired and the limitations period had not been tolled by his

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previous action or the statute of repose for fraud claims. None of the other

arguments Holliday advances in his appeal make out a plausible claim for relief.

AFFIRMED.