Malowney v. Fed. Collection Deposit Group

Decision Date29 October 1999
Docket NumberNo. 98-2610,98-2610
Citation193 F.3d 1342
Parties(11th Cir. 1999) John MALOWNEY, Susan L. Malowney, Plaintiffs-Appellants, v. FEDERAL COLLECTION DEPOSIT GROUP, Charles K. Mayall, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted] 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 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 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

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 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 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...

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