Irina Chevaldina v. Center for Individual Rights, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11901
Non-Argument Calendar
____________________
IRINA CHEVALDINA,
Plaintiff-Appellant,
versus
CENTER FOR INDIVIDUAL RIGHTS,
MICHAEL E. ROSMAN,
Defendants-Appellees,
TERENCE J. PELL,
Defendant.
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2 Opinion of the Court 22-11901
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-24690-WPD
____________________
Before B RASHER , ABUDU , and ANDERSON , Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Irina Chevaldina appeals following the
dismissal of her Second Amended Complaint against a law firm
that previously represented her (“the Center”) and that firm’s attor-
ney. On appeal, Chevaldina argues the district court erred in dis-
missing her suit for failure to state a claim and based on the relevant
statutes of limitations.1 We write only for the parties who are al-
ready familiar with the facts. Accordingly, we include only such
facts as are necessary to understand our opinion. We will address
each of her challenges in turn.
I.
1 Chevaldina identified several other orders of the district court in her notice
of appeal but has not challenged any of these orders in her brief on appeal.
Accordingly, we conclude that any challenge to these orders is abandoned. See
Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994) (noting that litigant aban-
dons an issue by failing to challenge it on appeal and applying the same to a
pro se litigant). Likewise, she has abandoned Court Four, civil conspiracy, by
not challenging the district court’s opinion resolving that claim.
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22-11901 Opinion of the Court 3
We review de novo a district court’s dismissal of a complaint
for failure to state a claim. Evanto v. Fed. Nat’l Mortg. Ass’n,
814 F.3d 1295, 1297 (11th Cir. 2016). We also review de novo ques-
tions of law, including questions of statutory interpretation and the
interpretation and application of statutes of limitations. SEC v. Gra-
ham, 823 F.3d 1357, 1360 (11th Cir. 2016); Ctr. for Biological Diversity
v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006). In doing so, we
construe pro se pleadings liberally. Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008).
A district court may properly dismiss a complaint for failure
to state a claim if it is apparent from the face of the complaint that
the applicable statute of limitations bars the claim. United States v.
Henco Holding Corp., 985 F.3d 1290, 1296 (11th Cir. 2021).
Under Florida law, a two-year statute of limitations applies
to actions seeking relief for “professional malpractice, . . . whether
founded on contract or tort” with the limitations period running
“from the time the cause of action is discovered or should have
been discovered with the exercise of due diligence.” Fla. Stat. Ann.
§ 95.11(4)(a); Larson & Larson, P.A. v. TSE Indus., Inc., 22 So. 3d 36,
41 (Fla. 2009).
“The ‘delayed discovery’ doctrine generally provides that a
cause of action does not accrue until the plaintiff either knows or
reasonably should know of the tortious act giving rise to the cause
of action.” Raie v. Cheminova, Inc., 336 F.3d 1278, 1280 (11th Cir.
2003) (quoting Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla.
2000)); see also Fla. Stat. § 95.031.
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4 Opinion of the Court 22-11901
Here, we conclude the district court correctly dismissed
Count One and Count Two of Chevaldina’s Second Amended
Complaint (“SAC”)2 for failure to state a claim under the relevant
statute of limitations. Henco Holding Corp., 985 F.3d at 1296.3 Be-
cause Counts One and Two related to the Center’s prior represen-
tation of Chevaldina in the earlier Katz litigation, the district court
correctly concluded that a two-year statute of limitations applied.
Fla. Stat. § 65.11(4)(a). By any measure, Counts One and Two were
brought after that time. At least by May 2017, Chevaldina was
aware of the claims she now brings against the Center. At that time
(and as part of the separate litigation commenced by the Center
2 Count one is Chevaldina’s breach of contract claim against the Center,
which alleges a breach of the attorney-client retainer agreement pursuant to
which the Center represented Chevaldina in the Katz litigation, which case
and which representation ended in 2015. Count Two is her breach of fiduciary
duty claim against the Center based on alleged breaches of that same retainer
agreement and attorney-client relationship.
3 Chevaldina also challenges several of the district court’s procedural rulings,
which she asserts, among other things, violated Fed. R. Civ. P. 12(g)(2). We
conclude, however, that the errors, if any, in this respect were harmless. Equal
Emp’t Opportunity Comm’n v. STME, LLC, 938 F.3d 1305, 1322–23 (11th Cir.
2019); 28 U.S.C. § 2111; see also Doe v. Columbia-Brazoria Indep. Sch. Dist., 855
F.3d 681, 686 (5th Cir. 2017) (finding a potential error under Rule 12(g) harm-
less because “the [defendant] could have presented th[e] same argument in a
Rule 12(c) motion for judgment on the pleadings”). For example, Chevaldina
argues that the Center waived its statute of limitations defense by failing to
assert it in its initial Rule 12(b)(6) motions, and asserting it only in its motion
to dismiss Chevaldina’s SAC. If error at all, it is harmless. The substance of
the Rule 12(b)(6) motion (and the same statute of limitations defense) could
have been made under Rule 12(c). See Fed.R.Civ.P. 12(h)(1) and (2).
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22-11901 Opinion of the Court 5
against Chevaldina in March 2016), she first asserted counterclaims
against the Center, which counterclaims are similar or nearly iden-
tical to the claims she now brings. See Silvestrone, 721 So. 2d at 1175;
Raie, 336 F.3d at 1280. But Chevaldina did not institute this action
until November 2020, long after the two-year statute of limitations
expired. Thus, the district court did not err in dismissing Counts
One and Two, and we affirm in this respect.4
II.
To succeed on a malicious prosecution claim (Count Three
of the SAC) under Florida law, a plaintiff must establish, among
other things, that there was an original “judicial proceeding against
the present plaintiff” and that the original proceeding was insti-
tuted with “an absence of probable cause.” Debrincat v. Fischer, 217
So. 3d 68, 70 (Fla. 2017) (quoting Alamo Rent-A-Car, Inc. v. Mancusi,
632 So. 2d 1352, 1355 (Fla. 1994)). A failure to establish any of these
elements defeats a claim. Mancusi, 632 So. 2d at 1355.
A plaintiff suing for malicious prosecution may establish that
the instigator of a prior suit lacked probable cause by proving that
the instigator lacked “a reasonable belief, based on facts and cir-
cumstances known to him, in the validity of the claim.” Wright v.
Yurko, 446 So. 2d 1162, 1166 (Fla. Dist. Ct. App. 1984). But “[p]rob-
able cause in the context of a civil suit is measured by a lesser
4 Chevaldina’s other arguments challenging the district court’s statute of limi-
tations rulings are without merit and need no further discussion. Also, in light
of our ruling on the statute of limitations ground, we need not address the
Center’s several alternative grounds on which to affirm Counts One and Two.
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6 Opinion of the Court 22-11901
standard than in a criminal suit.” Id. In bringing an action, “de-
fendants need not be certain of the outcome of the underlying pro-
ceeding to have probable cause” to bring a claim. Endacott v. Int’l
Hospitality, Inc., 910 So. 2d 915, 922 (Fla. Dist. Ct. App. 2005). Fi-
nally, “to prevail on a claim for malicious continuation of prosecu-
tion, [a] plaintiff must show that probable cause was lacking at all
stages of the underlying proceeding.” Id. at 923. The Florida Su-
preme Court has explained that a judgment after trial in a court “of
competent jurisdiction” which results in a judgment or verdict “is
a sufficient legal determination of the existence of probable cause”
even if the judgment is subsequently reversed. Goldstein v. Sabella,
88 So. 2d 910, 911-12 (Fla. 1956).
Here, Chevaldina did not show that the Center initiated the
prior proceeding against her without probable cause. See Debrincat,
217 So. 3d at 70. Chevaldina’s malicious prosecution claim is prem-
ised on the Center’s March 2016 suit against Chevaldina for breach
of the attorney-client retainer agreement pursuant to which the
Center represented Chevaldina in the earlier Katz litigation. Of
note, the district court initially granted summary judgment to the
Center in the prior case, strongly suggesting that the Center had
probable cause to institute the suit. See Goldstein, 88 So. 2d at 911-
12. And while we ultimately reversed that grant of summary judg-
ment to the Center, we remanded for further proceedings, and our
opinion did not suggest the Center’s suit was instituted without
probable cause. See Ctr. for Individual Rts. v. Chevaldina,
829 F. App’x 416, 417-19 (11th Cir. 2020) (unpublished); Goldstein,
88 So. 2d at 911-12. Moreover, “[p]robable cause in the context of
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22-11901 Opinion of the Court 7
a civil suit is measured by a lesser standard than in a criminal suit,”
Wright, 446 So. 2d at 1166, and a plaintiff need not know he will
prevail in order to initiate a suit, Endacott, 910 So. 2d 915. Thus,
here—where the viability of the claim was at least debatable—the
district court did not err in finding that her Second Amended Com-
plaint failed to state a claim for malicious prosecution. See Mancusi,
632 So. 2d at 1355. Accordingly, we also affirm in this respect.
For these reasons, the district court did not err in dismissing
Chevaldina’s Second Amended Complaint, and we affirm.
AFFIRMED.
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