source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Gracita CHANG, Plaintiff-Appellant, v. CARNIVAL CORPORATION, a Panama Corp. d.b.a. Carnival Cruise Lines, Defendant-Appellee.
    No. 14-13228
    Non-argument Calendar
    United States Court of Appeals, Eleventh Circuit.
    (October 6, 2016)

      Lee Friedland, Friedland & Associates, PA, Fort Lauderdale, FL, for Plaintiff-Appellant.
    Donnise Annette DeSouza, Carnival Corporation, Doral, FL, Cameron Wayne Eubanks, Valentina M. Tejera, Mase Lara, PA, Miami, FL, for Defendant-Appellee.
    Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.
   PER CURIAM:

This action involves a single maritime negligence claim. Plaintiff Graeita Chang alleged that she slipped and fell on Defendant Carnival Corporation’s cruise ship. More than a year after the incident, Plaintiff filed suit in federal court. Defendant moved for summary judgment based on the one-year limitation period for filing such suits set out in Plaintiffs cruise ticket. Plaintiff acknowledged that she missed this deadline, but argues that this limitation period should be extended based on the doctrine of equitable tolling. The district court rejected this argument and agreed with Defendant that Plaintiff had untimely filed ■ suit. The court entered judgment for Deféndant. Plaintiff now appeals that order. We affirm.

BACKGROUND

For purposes of this appeal, the undisputed facts of this action are as follows. On December 9, 2012, while aboard Defendant’s cruise ship, Plaintiff slipped and fell. Plaintiffs cruise ticket contains several restrictions governing Plaintiffs.right to sue Defendant. Most importantly, the ticket contains a time limitation within which to file suit and a forum-selection clause. The time-limitation provision disallows a suit filed more than one year after the date of the injury. The forum-selection clause requires Plaintiff to file suit in federal court—and specifically in the Southern District of Florida—so long as there is subject matter jurisdiction in federal court over Plaintiffs claim. Only if subject matter jurisdiction is lacking in federal court may Plaintiff file suit in state court, and then suit can be filed only in a court located in Miami-Dade County, Florida.

Plaintiff retained a California attorney to litigate her slip-and-fall claim against Defendant. Aware of the impending litigation, Defendant twice informed Plaintiffs attorney (both on September 4, 2013, and on October 22, 2013) that it would not waive its rights under the forum-selection clause. Less than a month later, on November 20,2013, Plaintiff substituted Florida counsel for her California counsel. Then, on December 4 or 6, 2013—just a few days before expiration of the one-year deadline—Plaintiff filed her slip-and-fall claim in a Florida state court, not federal court, as she was required to do.

On January 28, 2014, Defendant moved to dismiss the state-court action, asserting Plaintiffs violation of the forum-selection clause. While this motion to dismiss was pending in state court, Plaintiff switched gears, and on March 4, 2014, before the state court resolved Defendant’s motion, Plaintiff filed this parallel federal action. The federal action, however, was filed almost three months after the one-year limitations period had elapsed.

Defendant moved for summary judgment in federal court based on Plaintiffs failure to file suit within the time limitation set out on the cruise ticket. Plaintiff agreed that the one-year limitation binds her, but argued that, by filing the state court action within a year of her injury, the limitation period had been equitably tolled. The district • court concluded that Plaintiff had failed to justify any equitable tolling and therefore had run afoul of the limitation period. The court entered summary judgment for Defendant. Plaintiff appeals that ruling.

DISCUSSION

Plaintiff agrees that the one-year limitation binds her and that more than a year elapsed between her injury and the filing of this action. Nonetheless, Plaintiff argues that she should be deemed to have satisfied the one-year limitation because she filed suit in state court within a year and that filing equitably tolled the limitation. Defendant responds that Plaintiffs filing of the state-court action failed to equitably toll the limitation because Plaintiffs ticket contained a clause requiring the selection of a federal forum so long as there was federal jurisdiction; there clearly was federal jurisdiction over the claim; and Defendant had made clear to Plaintiff that it would insist on her compliance with the forum-selection clause. We agree.

As to Plaintiffs effort to excuse her untimely filing by invoking equitable tolling, “[t]he Supreme Court has made clear that tolling is an extraordinary remedy which should be extended only sparingly.” Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993). To be in a position to advance a tolling argument, due diligence is a necessary, though not sufficient, prerequisite that a plaintiff must satisfy. Id Further, a late filing based on “garden-variety” negligence is not sufficient to warrant tolling. Id. at 1480. In addition, the interests of justice on which a tardy plaintiff relies do not support a plaintiff who has “not file[d] her action in a timely fashion despite knowing or being in a position reasonably to know that the limitations period is running.” Id. at 1479. Finally, it is the plaintiffs burden to show that equitable tolling is warranted. Id.

Notwithstanding the above, we have on, at least one occasion, found equitable tolling where a plaintiff subject to a forum-selection clause filed a federal suit late, having earlier filed, in the wrong forum, a timely state court action. In Booth v. Carnival Corporation, 522 F.3d 1148 (11th Cir. 2008), a cruise passenger who was subject to the same forum selection clause present here timely filed his negligence action in state court (sixteen days prior to expiration of the limitations period) before later filing an action in the federal court dictated by the forum-selection clause; the federal action was filed past the one-year deadline. Id. at 1149-50.

The district court denied the defendant’s motion to dismiss. Booth, 522 F.3d at 1149. We affirmed that court’s ruling, finding applicable equitable tolling on the particular facts before us. Id. at 1150-53. In doing so, we focused on a combination of four factors. First, the “state court ... possessed subject matter jurisdiction concurrently with the federal courts.” Id. at 1153. Second, “the state suit was dismissed solely on grounds of improper venue.” Id. Third, the defendant was aware prior to expiration of-the limitation period that the plaintiff intended to- file suit. Id. Fourth, the plaintiff “was entitled to believe that his state filing might be sufficient given the fact that defendants can, and often do, waive their defense of improper venue.” Id.

From all of the above, Booth concluded that the plaintiff had prosecuted his claim with the diligence necessary to warrant consideration of an equitable tolling claim and therefore the limitations period was properly tolled from the date on which he filed his state-court action. Id. at 1158. Although the parties seemingly agree that the first three factors identified above are present here, clearly the fourth factor is not. That is, prior to expiration of the limitations period, Defendant twice notified Plaintiff of its insistence that Plaintiff adhere to the forum-selection clause—that is, that Plaintiff, file, suit in the federal district court in the Southern District of Florida. Instead of complying, with a .provision of the contract that Defendant had explicitly and timely brought to Plaintiffs attention, Plaintiff instead chose to file her suit in the wrong forum. This was not the conduct of the plaintiff in Booth. And, unlike in Booth, Plaintiff here could have been under no misapprehension that Defendant would decline to hold her feet to the fire.

Specifically, before the district court, Defendant - submitted an affidavit from its Senior Claims Representative, who averred (1) that “[o]n September 4, 2013, [he] drafted and mailed”, the first communication to Plaintiffs California attorney and (2) that “[o]n October 22, 2013, [he] drafted, telefaxed and mailed” the second, similar communication to Plaintiffs California attorney. Defendant attached to the affidavit both communications, which clearly explain that Defendant would not waive its. forumrselection defense. There is no evidence that the letters were not mailed to the proper address.

In response to the above evidence, Plaintiff provided nothing other than unsupported assertions suggesting the possibility that her California attorney might have failed to receive the communications or might have failed to advise Plaintiff or her Florida counsel of Defendant’s warning. But such assertions are not evidence. Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1270 (11th Cir. 2013) (“Statements by counsel in briefs are not evidence_”). Moreover, “the burden is on the plaintiff to show that equitable tolling is warranted.” Booth, 522 F.3d at 1150. With no evidence in opposition to that presented by Defendant, Plaintiff clearly failed to shoulder her burden. See Pines v. Warnaco, Inc., 706 F.2d 1173, 1178 (11th Cir. 1983) (rejecting a plaintiffs similar arguments); 10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2734 (3d ed. 2015) (“[Wlhen a summary-judgment motion is based on the running of the applicable statute of limitations and defendant shows that the prescribed period has elapsed, plaintiff may be able to defeat summary judgment by introducing facts, by affidavits or other evidence, raising a genuine issue whether the statute should be suspended.... But the motion should not be denied on the mere chance that there might be facts that would toll the statute.”).

Here, Plaintiff was specifically warned by Defendant that the latter intended to enforce the forum-selection clause, but Plaintiff chose to ignore that warning by filing suit in an incorrect forum, which decision directly led to the need to file suit late in the correct forum. If, on these facts, a plaintiff could, circumvent the forum-selection clause, the forum-selection clause would lose much of its force, leading to- the unnecessary expenditure of resources by courts and litigants. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) (“[A] clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions.”)

CONCLUSION

After having been warned by Defendant that it intended to enforce the forunf-s'election clause, Plaintiff nonetheless sued Defendant in the wrong forum. Plaintiff finally sued Defendant in the correct forum, but did so after expiration of the limitations period. We find that equitable tolling does not apply under these circumstances. Accordingly, we AFFIRM.

      . The ticket's one-year limitation states, "Suit to recover on any [personal injury] claim shall not be maintainable unless filed within one year after the date of the injury....” The ticket's forum-selection clause states that any personal injury action must "be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country. ”

      . Both communications stated:
      All rights in equity, law, and those contained within the guest cruise ticket contract are expressly reserved, including the forum selection / venue provision requiring all passenger lawsuits against [Defendant] to be filed in the United States District Court for the Southern District of Florida in Miami, Florida. [Defendant] will not waive its contractual defense if a lawsuit is filed in the wrong court. (Emphasis added).

      . The one-year limitation arises from a contract, not a statute, but that makes no difference here. Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577, 1579 n.3 (11th Cir. 1985) ("There is ‘no essential difference between contractu[ ]al and statutory limitations.’ ”).

      . The parties agree that "the question of whether equitable tolling applies is a legal one subject to de novo review.” Booth v. Carnival Corp., 522 F.3d 1148, 1149 (11th Cir. 2008). Our opinions on the standard of review however, are inconsistent. See, e.g., Arce v. Garcia, 434 F.3d 1254, 1260 (11th Cir. 2006) (reviewing the district court’s application of equitable tolling for an abuse of discretion). However, our earliest opinions on the issue engaged in de novo review. See, e.g., Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577, 1578 (11th Cir. 1985). We must follow those opinions. Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) ("[W]hen circuit authority is in conflict, a panel should look to the line of authority containing the earliest case.”). In any event, a more deferential abuse-of-discretion standard would produce the same result in this appeal.

      . Even those unsupported assertions fail to squarely state that Plaintiff’s California attorney did not timely relay Defendant’s communications. Nor is it clear that it would make a difference if Plaintiff had offered such evidence. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ("Under our system of .representative litigation, ‘each party ... is considered to have notice of all facts, notice of which can be charged upon the attorney.' ”).

      . Pines held that a one-year limitation barred the plaintiff’s fraud claim because the plaintiff should have known of the underlying fraud more than a year before he sued. The Pines plaintiff had argued against summary judgment by asserting that the limitation should begin later. The Pines court rejected that contention.
      Although [the plaintiff] argues that there was a factual dispute whether he should have discovered the fraud more than a year before filing suit, mere allegations cannot defeat summary judgment. And [the plaintiff] can point to no evidence supporting his allegation that he was prevented from obtaining information [about the fraud].
      706 F.2d at 1178 (citation omitted).


author: WILLIAM PRYOR, Circuit Judge:

text:
    Roger NICKLAW, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CITIMORTGAGE, INC., Defendant-Appellee.
    No. 15-14216
    United States Court of Appeals, Eleventh Circuit.
    Filed: 10/06/2016

      Todd S, Garber, Finkelstein Blankinship Frei-Pearson & Garber, LLP, White Plains, NY, Scott Rhead Shepherd, Nathan C. Zipperian, Shepherd Finkelman Miller & Shah, LLP, Weston, FL, for Plaintiff-Appellant.
    Lucia Nale, Christopher Comstock, Thomas V. Panoff, Mayer Brown, LLP, Chicago, IL, Louis F. Bonacorsi, Bryan Cave, LLP, Saint Louis, MO, April Boyer, Stephen Allan McGuinness, K&L Gates, LLP, Miami, FL, for Defendant-Appellee.
    Before MARCUS and WILLIAM PRYOR, Circuit Judges, and LAWSON, District Judge.

       Honorable Roger H. Lawson, Jr„ United States District Judge for the Middle District of Georgia, sitting by designation.

   WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether a plaintiff has standing to sue when he alleges only a failure to record a satisfaction of mortgage within a statutory period and fails to bring suit until after that statutory violation has been remedied. Roger Nicklaw sold real estate and used the proceeds to satisfy a mortgage owned by CitiMortgage, Inc. New York law required CitiMortgage to file within 30 days a certificate of discharge with the county clerk to record that Nicklaw had satisfied his mortgage. N.Y. Real Prop. Law § 275; N.Y. Real Prop. Acts, Law § 1921. But CitiMortgage failed to record the satisfaction of mortgage until more than 90 days after the date of satisfaction. When Nick-law discovered that the certificate had been recorded late, he filed a putative class action against CitiMortgage. The complaint alleges that CitiMortgage violated New York law by failing to record the certificate of discharge within the statutory period. The district court dismissed Nicklaw’s complaint based on an..earlier ruling that a previous suit filed by Nicklaw had become moot, but we need not address that issue. CitiMortgage argues, and we agree, that Nicklaw lacks standing to maintain this action. Because Nicklaw has not alleged that CitiMortgage’s violation of New York law caused or could cause him any harm, we dismiss this appeal for lack of jurisdiction.

I. BACKGROUND

On July 2, 2012, Nicklaw sold real estate that he owned in Buchanan, New York. He used the proceeds to satisfy the balance owed on a mortgage owned by CitiMort-gage. Under New York law, CitiMortgage then had 30 days to file a certificate of discharge with the county clerk to record that Nicklaw had satisfied the mortgage. N.Y. Real Prop. Law § 275; N.Y. Real Prop. Acts. Law § 1921. If CitiMortgage failed to record the certificate within 30 days, it would be liable to Nicklaw for $500. N.Y. Real Prop. Law § 275; N.Y. Real Prop. Acts. Law § 1921. This amount would increase to $1,000 after 60 days, and $1,500 after 90 days. N.Y. Real Prop. Law § 275; N.Y. Real Prop. Acts. Law § 1921. But CitiMortgage failed to record the satisfaction of mortgage until October 17, 2012.

In 2013, Nicklaw filed a putative class action against CitiMortgage in the Southern District of Florida that alleged that CitiMortgage violated sections 275 and 1921 by failing to record the certificate of discharge until over 90 days after Nicklaw satisfied his mortgage. CitiMortgage extended an offer of judgment to Nicklaw, Fed. R. Civ. P. 68, that offered him all the relief he requested in the complaint. When Nicklaw refused to accept the offer, Citi-Mortgage filed a motion to dismiss the complaint on the ground that the offer .of judgment rendered the case moot. The district court agreed and dismissed Nick-law’s complaint. Nicklaw did not appeal that dismissal.

In October 2014, Nicklaw filed a second complaint against CitiMortgage in the Eastern District of Missouri, which was transferred to the Southern District of Florida, The complaint alleges that Citi-Mortgage violated sections 275 and 1921 when it filed the certificate of discharge more than 90 -days after Nicklaw satisfied his mortgage. It does -not allege whether Nicklaw or any other member of the putative class was aware that the certificate of discharge had not been recorded within the statutory time period. It alleges only that the satisfaction of the mortgage was recorded late. CitiMortgage moved to dismiss Nieklaw’s second complaint on the ground that the previous dismissal for mootness had preclusive effect.

A magistrate judge recommended the complaint be dismissed based on the earlier ruling on mootness. The district court adopted the report and recommendation of the magistrate judge and dismissed the complaint. After Nicklaw filed this appeal, CitiMortgage moved to dismiss the appeal for lack of jurisdiction.

II. STANDARD OF REVIEW

We review the dismissal of a complaint de novo. Culverhouse v. Paulson & Co. Inc., 813 F.3d 991, 993 (11th Cir. 2016).

III. DISCUSSION

Questions of subject matter jurisdiction may be raised at any time. Ingram v. CSX Transp., Inc., 146 F.3d 858, 861 (11th Cir. 1998). Although we ordinarily will not address issues raised for the first time on appeal, “[a]ny time doubt arises as to the existence of federal jurisdiction, we are qbliged to address the issue before proceeding further.” Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995). This appeal obliges us to consider our jurisdiction.

The Constitution confers limited authority on the judicial branch. It endows the federal courts with “[t]he judicial Power of the United States,” U.S. Const. Art. 111 § 1, and limits that power to the resolution of “Cases” and “Controversies.” Id. § 2. “There is no case or controversy, the reasoning has gone, when there are no adverse parties with personal interest in the matter.” Antonin. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983). And Article III restricts the jurisdiction of the federal courts to litigants who have standing to sue. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

We must determine whether Nicklaw has standing to sue CitiMortgage. The “irreducible constitutional minimum of standing” comprises three elements: injury in fact, causation, and redressability. Id. at 560-61, 112 S.Ct. 2130. This bedrock requirement serves many of “the implicit policies embodied in Article III.” Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Standing promotes the separation of powers by preventing “over-judicialization of the process of self-governance.” Scalia, The Doctrine of Standing, supra, at 881. It serves judicial efficiency by “prevent[ing] the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders.” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687, 98 S.Ct. 2405, 37 L.Ed.2d 254 (1973). It improves judicial decision making by assuring that the questions presented to the court are resolved in a concrete factual context. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). And it ensures that “people cannot be intermeddlers trying to protect others who do not want the protection offered.” Erwin Chemerinsky, Federal Jurisdiction 59 (5th ed. 2007).

To determine whether Nicklaw has standing, we must decide whether he alleges an injury in fact. Absent an alleged injury, Nicklaw cannot make out a case or controversy under Article III. A plaintiff has injury in fact if he suffered an invasion of a legally protected interest that is concrete, particularized, and actual or imminent. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. “A ‘concrete’ injury must be ‘de fac-to’; that is, it must actually exist.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). And intangible injuries may satisfy the Article III requirement of concreteness. Id. at 1549. For example, a plaintiff who alleges a violation of a statutory right to receive information alleges a concrete injury. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 20-25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982).

Because Nicklaw alleges only that Citi-Mortgage violated New York law, we must determine whether the intangible harm caused by the delay in recording the certificate of discharge constitutes a concrete injury in fact. “[B]oth history and the judgment of Congress play important roles” in this analysis. Spokeo, 136 S.Ct. at 1549. “[WJhether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts” is instructive because the case-or-controversy requirement is “grounded in historical practice.” Id. And “Congress may ‘elevat[e] to the status of legally cognizable injuries concrete ... injuries that were previously inadequate in law.’ ” Id. (first alteration in original) (quoting Lujan, 504 U.S. at 578, 112 S.Ct. 2130); see also Warth v. Seldin, 422 U.S. 490, 514, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). But a plaintiff does not “automatically satisffy] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 136 S.Ct. at 1549.

Nicklaw argues that the intangible harm that occurs when the- discharge of a mortgage is not timely recorded constitutes a concrete injury for two reasons. First, the New York legislature intended to create a substantive right- to have the certificate of discharge timely recorded. Second, the right to have a satisfaction of mortgage timely recorded has deep roots in American common law. These arguments fail.

Nicklaw argues that he has suffered a concrete injury because New York law creates a right to have a certifícate of discharge recorded in a timely manner, but the relevant question is whether Nicklaw was harmed when this statutory right was violated. “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. As the Supreme Court explained in the context of the Fair Credit Reporting Act, not all statutory violations “cause harm or present any material risk of harm.” Id. at 1550. For example, the Court found it “difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.” Id. But some inaccuracies, such as incorrectly reporting that an individual has a criminal history, might cause harm or a material risk of harm.

Nicklaw alleges neither a harm nor a material risk of harm that the district court could remedy. His complaint does not allege that he lost money because Citi-Mortgage failed to file the certificate. It does not allege that his credit suffered. It does not even allege that he or anyone else was aware that the certificate of discharge had not been recorded during the relevant time period. And Nicklaw did not file this action until more than two years after CitiMortgage recorded the satisfaction of mortgage. Nicklaw fails to allege even a material risk of harm at this late date.

That Nicklaw does not allege a sufficient injury in fact under Article III does not mean that New York law does not create a right that, when violated, could form the basis of a cause of action in a court of New York. But Nicklaw chose to sue CitiMortgage in federal court, and the requirement of concreteness under Article III is not satisfied every time a statute creates a legal obligation and grants a private right of action for its violation. Id. A plaintiff must suffer some harm or risk of harm from the statutory violation to invoke the jurisdiction of a federal court.

Nicklaw also argues that the right to have a certificate of discharge timely filed upon satisfaction of a mortgage has deep roots in remedies available at common law, but his argument misapprehends the nature of those remedies. Nicklaw cites decisions of New York courts from the nineteenth century that involved requests to execute and record satisfaction of mortgages that had been paid in full, see Gris-wold v. Onondaga Cty. Sav. Bank, 93 N.Y. 301 (1883); People ex rel. Adams v. Sigel, 46 How. Pr. 151 (N.Y. Sup. Ct. 1873), and the common law action of quiet title could be viewed as a precursor to the New York statutes, see Note, Enhancing the Marketability of Land: The Suit to Quiet Title, 68 Yale L. J. 1245, 1255-76 (1959). But these causes of action provided a remedy to prevent the risk of harm that occurred while title to property was wrongfully clouded, not a remedy after the cloud was lifted.

Nicklaw has failed to allege that he sustained a concrete injury. He does not allege that his credit suffered or that he or anyone else knew that the certificate of discharge had not been recorded within the statutory period. By alleging only that CitiMortgage recorded the certificate late and nothing else, Nicklaw has failed to establish that he suffered or could suffer any harm that could constitute a concrete injury. Because Nicklaw lacks standing to sue CitiMortgage, we need not decide whether the earlier order of dismissal as moot bars relitigation of that issue.

IV. CONCLUSION

We DISMISS this appeal for lack of jurisdiction.


text:
    John LAGE, Maria Mantilla, Plaintiffs-Appellants, v. OCWEN LOAN SERVICING LLC, Defendant-Appellee.
    No. 15-15558
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 10/07/2016

      Jeffrey Golant, Ashley Renee Eagle, Chad Klosky, Christina Nicole Zanakos, The Law Offices of Jeffrey N. Golant; PA, CORAL SPRINGS, FL, Jessica L. Kerr, Kerr Law Office, HOLLYWOOD, FL, for Plaintiffs-Appellants.
    David R. Fine, K & L Gates, LLP, HARRISBURG, PA, Freddi R. Mack, K & L Gates, .LLP, MIAMI, FL, for Defendant-Appellee.
    Before WILLIAM PRYOR and JIL^ PRYOR, Circuit Judges, and VOORHEES, District Judge.

       Honorable Richard L. Voorhees, United States District Judge, for the Western District of North Carolina, sitting by designation.

   PER CURIAM:

In this appeal we consider whether loan servicer Ocwen Loan Servicing, LLC had a duty to evaluate an application for loss mitigation options submitted by borrowers John Lage and Maria Mantilla (“Borrowers”) when, at the time the application was submitted, a foreclosure sale of the Borrowers’ property was scheduled to occur in two days. Under Regulation X, which implements the Real Estate Settlement Procedures Act (“RESPA”), a loan servicer’s duty to evaluate a borrower’s loss mitigation application is triggered only when the borrower submits the application more than 37 days before the foreclosure salé. The Borrowers contend their application was timely because Ocwen subsequently postponed the foreclosure sale such that the sale actually transpired more than 37 days after they submitted their complete loss mitigation application. But Regulation X requires us to measure the timeliness of the Borrowers’ application using the date the foreclosure sale was scheduled to occur when they submitted their complete application. Because the Borrowers’ application was untimely, we agree with, the district court that Ocwen had no duty to evaluate the Borrowers’ loss mitigation application; we thus affirm the district court’s grant of summary judgment to Ocwen on the Borrowers’ claim seeking to hold Ocwen liable for failing to evaluate their loss mitigation application.

The Borrowers also challenge- summary judgment entered on their separate claim that Ocwen failed to respond adequately to their subsequent notice of error as required by Regulation X. We agree with the district court that to survive summary judgment the Borrowers had to present evidence that they suffered actual damages or were entitled to statutory damages and that they failed to do so. Therefore we affirm the district court’s grant of summary-judgment with respect to the Borrowers’ claim based on Ocwen’s inadequate response to their notice of error.

I. BACKGROUND

A. Regulation X

This case requires us to consider two provisions of Regulation X: one setting forth the procedures governing a servicer’s review of a loss mitigation application, 12 C.F.R. § 1024.41, and the other requiring a loan servicer to respond to a notice from a borrower identifying an error in the servicing of his mortgage loan, id. § 1024.35. These provisions went into effect on January. 10, 2014. See Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act, 78 Fed. Reg. 10696,10696 (Feb. 14, 2013).

The first provision dictates how a mortgage loan servicer must review a borrower’s loss mitigation application. See 12 C.F.R. § 1024.41. A loss mitigation application is simply a request by a borrower for any of a number of alternatives to foreclosure, known as loss mitigation options, including, among others, modification of the mortgage. See id. § 1024.31 (“Loss mitigation option means an alternative to foreclosure offered by the owner or assignee of a mortgage loan that is made available through the servicer to the borrower.”).

When a borrower submits a loss mitigation application at least 45 days before a foreclosure sale, the servicer must review the application promptly to determine if it is “complete.” Id. § 1024.41(b)(2). For applications submitted 45 days or more before a foreclosure sale, the servicer must notify the borrower within five business days of receiving the application whether the application is complete or incomplete. Id. § 1024.41(b)(2)(i)(B). An application is considered complete when the “servicer has received all the information that the servicer requires from a borrower in evaluating applications for the loss mitigation options available to the borrower.” Id. § 1024.41(b)(1); see also 12 C.F.R. pt. 1024, supp. I, § 41(b)(1) cmt. 1 (“A servi-cer has flexibility to establish its own application requirements and to decide the type and amount of information it will require from borrowers applying for loss mitigation options.”).

If the application is incomplete, the ser-vicer must provide the borrower with an opportunity to supplement the application. The servicer must notify the borrower what additional documents and information it needs to review the application and give the borrower an opportunity to submit the requested materials. See 12 C.F.R. § 1024.41(b)(2)(i)(B), (c)(2)(iv). Once the borrower submits the requested materials or if the servicer initially determines that the application is complete, then the application is considered “facially complete” for purposes of § 1024.41. Id. § 1024.41(c)(2)(iv).

The servicer then reviews the application to determine whether the borrower is eligible for any loss mitigation options. Id. § 1024.41(c)(l)(i). But a servicer only has a duty to evaluate a complete loss mitigation application that it receives “more than 37 days before a foreclosure sale.” Id. § 1024.41(c)(1). When reviewing an application, the servicer must consider all loss mitigation options available to the borrower and notify the borrower in writing what options, if any, it will offer. Id. § 1024.41(c)(l)(i)-(ii). The regulations require the servicer to complete its review within 30 days of receiving the borrower’s complete application. Id. § 1024.41(c)(1). If a servicer fails to evaluate a borrower’s loss mitigation application within 30 days, the borrower has a private right of action under RESPA. See id. § 1024.41(a) (“A borrower may enforce the provisions of this section pursuant to section 6(f) of RESPA (12 U.S.C. [§ ] 2605(f)).”); 12 U.S.C. § 2605(f) (creating a private right of action for a borrower to sue “[w]hoever fails to comply with any provision of this section”).

The second provision of Regulation X at issue in this case requires a servicer to investigate and respond to written notice from a borrower asserting that there was an error related to the servicing of ■ his mortgage loan. 12 C.F.R. § 1024.35(a), (e). Under this provision, a servicer must investigate and respond to a notice from a borrower that the servicer “[f]ail[ed] to provide accurate information to a borrower regarding loss mitigation options and foreclosure.” Id § 1024.35(b)(7). With a few exceptions inapplicable here, the servicer must either correct the errors the borrower identified and notify the borrower in writing or, after a reasonable investigation, notify the borrower in writing that it has determined no error occurred and explain the basis for its decision. Id. § 1024.35(e)(1)®. The servicer generally has 30 business days to respond to a notice of error. Id. § 1024.35(e)(3)(i)(C). If the servicer fails to respond adequately to the borrower’s notice of error, then the borrower has a private right of action to sue the servicer under RESPA. 12 U.S.C. § 2605(e)(2), (f).

B, Factual Background

The Borrowers obtained a loan secured by a mortgage on their residential property in Boynton Beach, Florida. Three years later when the Borrowers fell behind on their loan payments, their original servicer initiated judicial foreclosure proceedings in state court. While the foreclosure proceedings were pending, Ocwen became the loan servicer. Subsequently, the state court entered a final judgment of foreclosure. The foreclosure sale originally was scheduled for January 29, 2014.

Three weeks before the scheduled foreclosure sale, on January 8, the Borrowers faxed a loss mitigation application to Ocwen. With their application, the Borrowers provided detailed information about their income and expenses along with copies of pay stubs, their most recent tax returns, and other financial records. The next day, Ocwen acknowledged receipt of the application and explained that it would notify the Borrowers if it needed additional documents. Over the next two weeks, the Borrowers and Ocwen communicated about the loss mitigation application. At a January 24 mediation, Ocwen told the Borrowers that once they submitted one additional paystub, it would evaluate their application. The Borrowers provided that paystub on January. 27.

On January 28, the foreclosure sale scheduled for the next day was cancelled and rescheduled for March 14. Although the Borrowers had submitted the additional paystub, Oewén did not conduct its loss mitigation review. Instead, three days later, on January 31, Ocwen requested that the Borrowers submit two more paystubs. Twice thereafter Ocwen informed the Borrowers that it needed additional information to review their application. According to Ocwen, the Borrowers finally submitted all necessary information and documents on March 7. Two days later, Ocwen denied the Borrowers’ loan modification request as untimely because the foreclosure sale was scheduled to occur within 7 days. The foreclosure sale took place on March 14 as scheduled.

After the foreclosure sale, the Borrowers remained in the home for several months. They sent Ocwen a notice of error asserting that it failed to comply with Regulation X in reviewing their loss mitigation application. The Borrowers asserted that Ocwen failed to fulfill its duty to evaluate their application within 30 days as required under § 1024.41. Among other points, they contended that Ocwen had unduly delayed and drawn out the review process and then relied on its own delay as the basis for deeming the application untimely.

Ocwen acknowledged receipt of the notice of error and timely responded. Ocwen provided a generic response to the Borrowers’ concerns about Ocwen delaying its response to their loan modification application stating that the “terms of any possible modification are determined by many factors” and referring the Borrowers to the March denial letter. October 14, 2014 Letter (Doc. 49-10). Ocwen admitted that this response was based on a template and that the letter did not specifically address the Borrowers’ concerns.

C. Procedural Background

The Borrowers filed this action against Ocwen in federal district court, alleging that Ocwen was liable under RESPA because it violated Regulation X when it failed to evaluate the merits of their, loss mitigation application within 30 days as required under 12 C.F.R. § 1024.41(c). They also alleged that Ocwen was liable under RE SPA because it responded inadequately to -their notice of error, in violation of 12 C.F.R. § 1024.35(e).

After discovery, Ocwen moved for summary judgment, and the district court granted the motion. First, with regard to the loss mitigation claim, the court determined that Ocwen had no duty to evaluate the Borrowers’ loss mitigation application under 12 C.F.R. .§ 1024.41 because the regulation was not in effect at the time the Borrowers submitted their January 8, 2014 loss mitigation request. Because Ocwen owed no duty, the district court concluded that it was not liable under § 1024.41 as a matter of law. Second, with regard to the notice of error claim, the court concluded that Borrowers had presented sufficient evidence to prove a violation of the regulation but failed to provide evidence of statutory or actual damages as required to sustain a claim under § 1024.35(e). Accordingly, the court granted Ocwen’s motion and entered final judgment in favor of Ocwen, This appeal followed.

II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Likes v. DHL Express (USA), Inc., 787 F,3d 1096, 1098 (11th Cir. 2015). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Likes, 787 F.3d at 1098 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). We “may affirm for any reason supported by the record, even if not relied upon by the district, court.” Allen v. USAA Cas. Ins. Co., 790 F.3d 1274, 1278 (11th Cir. 2015).

III. ANALYSIS

On appeal, the Borrowers argue that the district court erred in granting summary judgment for two reasons. First, they contend that Ocwen breached its duty to evaluate their loss mitigation application within 30 days as required under § 1024.41. The district court granted summary judgment on the basis that Ocwen was not required to comply with § 1024.41 because the Borrowers submitted their initial loss mitigation application before § 1024.41 came into effect on January 10, 2014, even though their application became facially complete and then actually complete after § 1024.41’s effective date. We need not decide whether a servicer must comply with § 1024.41 when an application was initially submitted before § 1024.41’s effective date but became complete after the effective date because, even assuming that § 1024.41 applies to such an application, the Borrowers’ application was untimely. At the time the Borrowers submitted their application, the foreclosure sale was scheduled to occur within 37 days.

Second, the Borrowers argue that the district court erred in concluding that they failed to provide sufficient evidence of statutory damages for their notice of error claim. Because RESPA requires proof of a pattern or practice to invoke statutory damages and the Borrowers submitted evidence of only one potential violation— Ocwen’s failure to respond sufficiently to the Borrowers’ notice—we find no error.

A. Loss Mitigation Claim

The Borrowers’ claim that Ocwen violated § 1024.41(c) fails because they completed their loss mitigation application too late to trigger Ocwen’s duty to evaluate the application. Although Regulation X requires a servicer to evaluate a loss mitigation application within 30 days, this duty is only triggered when the borrower submits a “complete loss mitigation application more than 37 days before a,foreclosure sale.” 12 C.F.R. § 1024.41(c)(1). The Borrowers contend their application was complete as of January 27, and we assume for purposes of this appeal that this was true. Because Ocwen received the Borrowers’ complete application just two days before the foreclosure sale scheduled for January 29, however, Ocwen had no duty to evaluate the Borrowers’ application.

To evaluate the timeliness of an application, Regulation X requires us to count the number of days between the date the ser-vicer received the complete loss-mitigation application and the date of the foreclosure sale. See id. To determine the date of the foreclosure sale, Regulation X directs us to use the date on which the foreclosure sale was scheduled when the borrower submitted her completed application:

To the extent a determination of whether protections under this section apply to a borrower is made on the -basis of the number of days between when a complete loss mitigation application is received and when a foreclosure sale occurs, such determination shall be made as of the date a complete loss mitigation application is received.

12 C.F.R. § 1024.41(b)(3) (emphasis added). In other words, to determine whether the Borrowers’ application was timely, we must ask whether, when the Borrowers submitted their complete loss mitigation application oh January 27, more than 37 days remained before the foreclosure sale was scheduled to occur. Id. Because we determine timeliness based on the scheduled date of the foreclosure sale as of the date the Borrowers’ complete application was received, it is irrelevant to our timeliness analysis that Ocwen subsequently rescheduled the foreclosure sale for a later date. See id.

The Borrowers argue that we must use the date when the property was actually sold at foreclosure to assess whether their application was timely. They assert that because § 1024.41(b)(3) discusses when the foreclosure sale “occurs,” the relevant date for measuring timeliness is the date the foreclosure sale actually transpires. But this interpretation is inconsistent with the final clause of paragraph (b)(3), which plainly states that we must measure the proximity between the date of the foreclosure sale and the receipt of the complete loss mitigation application “as of the date a complete loss mitigation application is received.” Id. We cannot adopt the Borrowers’ interpretation because it would render this phrase in the regulation meaningless. See Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1245 (11th Cir. 2008) (applying rule of construction that a court must avoid an interpretation that would render portion of regulation “superfluous”).

Because paragraph (b)(3) is unambiguous on this point, we need not consider the way that the Consumer Financial Protection Bureau (the “Bureau”) has interpreted the regulation. See Christensen v. Harris Cty., 529 U.S. 576, 588, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (explaining that we defer to an agency’s interpretation of its own regulation only where the regulation is ambiguous). Nonetheless, we observe that our interpretation of paragraph (b)(3) is consistent with the commentary from the Bureau when it adopted the regulation. See Amendments to the 2013 Mortgage Rules, 78 Fed. Reg. 60382, 60396-97 (Oct. 1, 2013). After receiving questions about how the timing provisions in § 1024.41 worked when a foreclosure sale was rescheduled after a completed application was received, the Bureau explained that “for purposes of § 1024.41, timelines based on the proximity of a foreclosure sale to the receipt of a complete loss mitigation application will be determined as of the date a complete loss mitigation application is received.” Id. at 60397. The Bureau explained that this approach would “provide[ ] certainty to both servicers and borrowers” and “balance[ ] consumer protection and servicer needs.” Id.

The Bureau considered and rejected a proposal that would have altered a borrower’s rights and the servicer’s corresponding duties if a foreclosure sale was rescheduled after receipt of a complete loss mitigation application—that is, the Bureau expressly disavowed the Borrowers’ argument. The Bureau explained that “structuring the rule such that a borrower’s rights may be added or removed because a foreclosure sale was moved or rescheduled would not provide the certainty or simplicity created by the proposed rule.” Id. The Bureau thus made clear that an untimely application should not become timely simply because the servicer rescheduled a foreclosure sale.

The Bureau recognized that allowing a servicer’s delay of a foreclosure sale to give a borrower greater rights may discourage servicers from rescheduling foreclosure sales and voluntarily considering untimely applications—actions which benefit borrowers. See id. (expressing “concert ] that if moving a foreclosure sale to a later date could trigger new protections, such a policy may provide a disincentive for a servicer to reschedule a foreclosure sale for a later date”). Stated another way, the Bureau acknowledged that if a borrower’s late application could become timely— and trigger the servicer’s duty to evaluate the application under § 1024.41—as a result of the servicer voluntarily postponing a foreclosure sale, then it may be. to the servicer’s advantage to proceed with the scheduled foreclosure instead of evaluating the borrower for loss mitigation options. See 78 Fed. Reg. at 10821 (discussing that some servicers may choose to review loss mitigation applications submitted 37 days or less before a foreclosure sale); 12 C.F.R. pt. 1024, supp. I, § 41(c)(2)(I) cmt. 1 (recognizing that a servicer may voluntarily offer loss mitigation options to a borrower who submitted an untimely or incomplete loss mitigation application). The Bureau was concerned that the likely result of using the actual date of the foreclosure sale to assess timeliness would be that fewer borrowers would ultimately benefit from loss mitigation options.

Because the Borrowers’ loss mitigation application was untimely, the protections of 12 C.F.R. § 1024.41(c) never were triggered. Accordingly, we find no error in the district court’s grant of summary judgment to Ocwen on the Borrowers’ loss mitigation claim.

B. Notice of Error Claim

The Borrowers next argue that the district court erred in granting summary judgment to Ocwen on their notice of error claim on the ground that the Borrowers failed to present evidence that they were entitled to damages arising out of Ocwen’s inadequate response. Because the Borrowers acknowledge that our ruling against their argument about loss mitigation evidence renders their theory of actual damages nonviable, we must consider whether they presented evidence of a pattern or practice of RESPA noncompliance to support an award of statutory damages. We conclude they have not.

Damages are “an essential element” of a RESPA claim. Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241, 1246 (11th Cir. 2016). RESPA recognizes two types of damages: (1) actual damages the borrower sustained as a result of the RES-PA violation and (2) “any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $2,000.” 12 U.S.C. § 2605(f)(1).

. Although “RESPA pattern-or-practice damages are not clearly defined by this Court’s precedent,” Renfroe, 822 F.3d at 1247, we can safely say that one RESPA violation, standing alone, does not constitute a pattern or practice. Indeed, in Ren-froe, we recognized that other courts had held that “two violations of RE SPA are insufficient to support a claim for statutory damages.” Id. (internal quotation marks omitted). Because the Borrowers put forth no evidence of RESPA violations other than the one notice of error violation alleged in their complaint, they cannot show a pattern or practice.

The Borrowers argue that Ocwen’s use of a template to respond to their notice of error supports a reasonable inference that Ocwen engaged in a pattern of providing insufficient responses to notices of error lodged by other borrowers. More specifically, they argue that it is “entirely reasonable to infer that Ocwen generated this inadequate form letter in order to send it to a large number of borrowers in response to any [notice of error] that Borrowers, or any similarly situated borrower, may have sent. Indeed, it would be unreasonable to believe that Ocwen generated a nonresponsive form letter[ ] and only sent it to Borrowers.” Appellants’ Br. at 20-21.

The Borrowers assume too much. Simply using a template to respond to a notice of error does not violate RESPA. The Borrowers presented no evidence from which we can infer that Ocwen had a pattern or practice of issuing form letters that were unresponsive to borrowers’ notices of error. Cf. Benfroe, 822 F.3d at 1247 (holding that allegations that a nonrespon-sive form letter was sent to borrowers on five separate occasions was sufficient to plead a pattern or practice of RESPA noncompliance). Accordingly, the Borrowers failed to present evidence of a pattern or practice of RESPA noncompliance that would support a claim for statutory damages. The district court did not err in granting summary judgment in favor of Ocwen on the Borrowers’ notice of error claim.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment.

AFFIRMED.

      . 12 C.F.R. part 1024.

      . 12 U.S.C.§ 2601 etseq.

      . The servicer must "exercise reasonable diligence in obtaining documents and information to complete a loss mitigation application.” 12 C.F.R. § 1024.41(b)(1).

      . If the borrower fails to provide the requested information, after a "significant period of time under the circumstances,” the servicer may, in its discretion, evaluate the incomplete loss mitigation application. 12 C.F.R. § 1024.41 (c)(2)(ii).

      . In general, until the servicer notifies the borrower that she is ineligible for any loss mitigation option or the borrower rejects all loss mitigation options offered by the servicer, the servicer is prohibited from completing the foreclosure sale. 12 C.F.R. § 1024.41(g).

      .When evaluating a facially complete application, the servicer may determine that it needs additional or corrected information from the borrower to complete its review of the application, 12 C.F.R. § 1024,41(c)(2)(iv). The servicer may "request the missing information or corrected documents” from the borrower and must give the borrower a "reasonable opportunity” to comply with the ser-vicer’s supplemental request. Id.

      . We recite the facts here based on undisputed evidence in the record and, where material facts are in dispute, we resolve the dispute in favor of the Borrowers as we must on review of Ae summary judgment in favor of Ocwen. See McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009).

      . Citations to "Doc.” refer to docket entries in the district court record in this case,

      . The Borrowers did not allege that Ocwen failed to "exercise reasonable diligence in obtaining documents and information to complete a loss mitigation application.” 12 C.F.R. § 1024.41(b)(1).

      . The Borrowers also brought a separate negligence claim asserting that Ocwen breached duties that it owed to the Borrowers under Regulation X to review their loss mitigation application and respond to their notice of error. But the Borrowers concede that they can prevail on their negligence claim only if Ocwen had a duty to evaluate their loss mitigation application. Because, as explained below, Ocwen had no duty to review their loss mitigation application, the district court properly granted summary judgment on their negligence claim.

      . In Renfroe, we acknowledged that we have "not addressed in a published opinion whether RESPA pattern-or-practice damages are available in the absence of actual damages, and our unpublished opinions have used conflicting language.” Renfroe, 822 F.3d at 1247 n.4. But "we observe[d] without ruling on the question, that the use of 'additional' seems to indicate that a plaintiff cannot recover pattern-or-practice damages in the absence of actual damages.” Id. We do not answer this question here because, as we explain below, the Borrowers failed to produce evidence of a pattern or practice of RESPA violations and thus failed to prove their entitlement to statutory damages.


author: DAVIS, District Judge:

text:
    Patricia Juanita WATE, individually and as personal representative of the Estate of James Clifton Barnes, Deceased, Plaintiff-Appellee, v. Kenneth KUBLER, Defendant-Appellant.
    No. 15-15611
    United States Court of Appeals, Eleventh Circuit.
    (October 12, 2016)

      Bruce McCord Edenfield, Bruce M. Edenfield, PC, Dahlonega, GA, Keith Max-ie Carter, Morgan & Morgan, PA, Tampa, FL, Stuart C. Markman, Kristin Ann Norse, Kynes Markman & Felman, PA, Tampa, FL, for Plaintiff-Appellee.
    Paul Grant Rozelle, Pinellas County Sheriffs Office, Saint Petersburg, FL, for Defendant-Appellant.
    Before MARCUS and WILLIAM PRYOR, Circuit Judges, and DAVIS, District Judge.

       Honorable Brian J. Davis, United States District Judge for the Middle District of Florida, sitting by designation.

   DAVIS, District Judge:

James Clifton Barnes and his aunt Paula Yount went to the beach to conduct a baptismal ritual. While in the water, Barnes became agitated. After Barnes was pulled out of the water and, following a struggle, he was handcuffed and pinned on the beach by two law enforcement officers. He was then “tased”. five times, and.. at least two of those tases occurred after Barnes had ceased resisting. Barnes died two days later. The district court denied Pinellas County Deputy Sheriff Kenneth Kubler’s motion for summary judgment seeking qualified immunity, determining that Kubler’s use of the Taser gun amounted to an unconstitutional use of excessive force in violation of the Fourth Amendment, that was clearly established at the time. Because the record evidence, construed in favor of Plaintiff, demonstrates that Barnes was not a flight risk or a threat to the safety of the officers or the public prior to the conclusion of the tas-ings, we affirm.

I. Background

A. The Tasing

The' incident giving rise to this action occurred at midday on March 17, 2012, at the north end of Honeymoon Island State Park, located in Pinellas County, Florida. Honeymoon Island is a 400-acre barrier island with four miles of beach, located in the Gulf of Mexico off of the west coast of Florida, and is accessible via a causeway. While in the water with his aunt, Barnes began acting erratically by flailing, flopping, and thrusting his arms and body, and yelling loudly about a demon. Barnes was a big man, standing at 5 feet 10 inches tall, and weighing 290 pounds. Barnes’ conduct drew attention on the crowded beach. The rapidly unfolding facts in this case are framed, by a stipulated timeline, and painted by the testimony of sixteen witnesses.

Officer Joseph Tactuk of the Florida Department of Environmental Protection, was the only law enforcement officer on Honeymoon Island that day. Tactuk stopped his All Terrain Vehicle (“ATV”) when he saw Barnes, and Yount left the water to speak to the officer. Barnes did not comply with Tactuk’s and Yount’s admonitions to calm down and leave the water. Tactuk entered the water and ordered Barnes out of the water, believing that he had probable cause to arrest Barnes for battery on Yount. A struggle ensued and Tactuk repeatedly struck Barnes in the face. Barnes continued to physically resist, and Tactuk repeatedly ordered Barnes to cooperate.

Tactuk got Barnes to the shallow water and placed a handcuff on one of Barnes’ hands. Barnes pulled Tactuk into waist-deep water, and Tactuk hit Barnes in the face with his fist while the two continued to struggle. Tactuk placed Barnes in a choke hold around the neck, and dragged Barnes out of the water by the head, assisted by a bystander. Barnes was yelling for help and pleading for the officer to “Please stop,” as Tactuk continued to hit him. Tactuk broadcast his call sign over the police radio at 12:30:52 p.m., and two bystanders who witnessed the struggle called 911 at 12:31 p.m.

Barnes was eventually pulled from the water at approximately 12:35:24, and at 12:35:53 p.m., a bystander reported to 911 that it looked as though Barnes had “calmed down,” and was “just laying on the beach now with the state park ranger next to him.” Tactuk kneeled beside Barnes on the beach and tried to secure Barnes’ other arm in the handcuffs, but was unsuccessful because Barnes was resisting and not cooperating. Tactuk got on top of Barnes and hit him, as he attempted to place Barnes’ other arm in the handcuffs.

Three bystanders assisted Tactuk in placing the handcuff on Barnes’ second arm, holding Barnes’ legs and positioning Barnes’ free aim, as Barnes continued to resist, and to loudly grunt and growl. The handcuff was not placed on Barnes’ second arm in the normal fashion, and instead, one of Barnes’ arms was pulled over his head, with his elbow pointing toward the sky, and his other arm was twisted behind his back, in a manner that looked like a figure-eight. One bystander observed that an “eruption of blood and fluids” spewed from Barnes’ mouth with each breath, and that Barnes was struggling to breathe.

At this point, Tactuk got off of Bames and pulled him further up onto the shore, and then straddled him while Barnes continued to resist. Tactuk pressed the emergency button on his radio at 12:36:09 p.m., identified himself, and said that he had a violent, mentally-ill person in custody. Tac-tuk broadcast that he needed “help” at the north end of the island, and that the location was accessible only by ATV. As Barnes continued to struggle, Tactuk deployed pepper spray, shooting it into Barnes’ eyes. Tactuk struck Barnes in the face multiple times, and Barnes continued to resist.

Officer Kubler, who was assigned to the Sheriffs Marine Unit, responded to the dispatch call. As he got closer to the scene, he eventually saw Tactuk and Barnes struggling on the beach. Kubler radioed that he had arrived, ran his boat aground, and jumped off boat at 12:36:59 p.m. Ku-bler observed that the officer on the scene had “somebody on the ground.”

When Kubler arrived, Barnes was on his back with his face out of water, struggling to get Tactuk off of him. Barnes had blood on his mouth and face and Tactuk was covered in blood. Tactuk was straddling Barnes, sitting on Barnes’ stomach with his knees pinned under Barnes’s armpits, and Barnes was screaming and yelling. One eyewitness said he thought that Barnes was starting to “wear down at that point” and that “he wasn’t fighting as much,” and that the situation was “under control.” Kubler positioned himself between Barnes’s hips and knees and tried to stop Barnes from kicking, instructing Barnes to quit resisting.

Starting at 12:37:37 p.m., Kubler and Tactuk radioed dispatch requesting other units and an ambulance. Kubler also reported over the radio that transporting Barnes would be problematic. Tactuk requested hobble restraints. Barnes can be heard yelling and screaming on the radio transmissions, and Tactuk can be heard on the dispatch call at 12:41:49 saying “stop resisting.”

Kubler and Tactuk rolled Barnes onto his stomach in an attempt to position the handcuffs correctly, as Barnes resisted and kicked. Tactuk continued to hit Barnes, striking him in the face three times after Barnes bit Tactuk’s hand. Witnesses said that Kubler stood over Barnes and put his foot on Barnes’s buttocks, arid one testified that Barnes was arching his back. Another witness testified that Kubler put his kriee on Barnes’s back, and that Barnes was immobilized.

Kubler warned Barnes to stop raising up or the officer would tase Barnes, but Barnes continued to resist. Kubler drew the Taser and gave Barnes a second warning, but Barnes kept struggling, and at 12:43:18 p.m., he can be heard again yelling in the background on the dispatch radio transmission.

Seventeen seconds later, at 12:43:35 p.m., Kubler deployed his Taser, and the probes struck Barnes in the mid-back, 2.95 inches (7.5 centimeters) apart. Six, and a half minutes had passed between Kubler’s arrival on the beach and his deployment of the Taser. Kubler activated the Taser on Barnes a total of five times for 5, 3, 5) 4, and 5 seconds respectively, over a nearly two-minute period (12:43:35; . 12:43:49; 12:44:20; 12:44:43; and 12:45:17). The intervals between deployments were 9, 28, 18 and 30 seconds respectively.

Kubler radioed dispatch at 12:45:26, but the transmission was unintelligible. Kubler and Tactuk uncuffed Barnes and. attempted to position the handcuffs properly, and at this time, Barnes was still and had become quiet. An’ off-duty fire lieutenant ran to the scene, observed that Barnes appeared to be blueish gray, and told the officers “You need to get the handcuffs off him because he’s not breathing.” J. Hut-zler (Supp. App. 8). The officers uncuffed Barnes, turned Barnes over to his back and began CPR. The officers had to do chest compressions - “[b]ecause of all the face trauma, we couldn’t get an airway on him.” J. Hutzler (Supp. App. 10). A radio transmission reflects that by 12:46:37, rescue personnel had been called. Rescue personnel arrived on an ATV and .took over the rescue. , .

Barnes died two days later. The Medical Examiner found the cause of death to be complications of asphyxia with contributory conditions of blunt trauma and restraint. Barnes had scattered abrasions, contusions, and lacerations, plus subgaleal hemorrhage and cerebral edema. A pair of puncture marks were on his back.

B,. Procedural History

Barnes’ personal representative Patricia Juanita Wate (“Plaintiff”) brought suit against the two officers individually, the Sheriff in his official capacity, the Florida Department of Environmental Protection, and the Florida Fish and Wildlife Conservation Commission. The Sheriff removed the action to the United States District Court for the Middle District of Florida, in Tampa. Following announcement that the state agencies and Tactuk had. settled with Plaintiff, those claims were dismissed. The district court then bifurcated Plaintiffs claims against Kubler and the Sheriff. Count II of Plaintiffs Fourth Amended and Recast Complaint, which is the operative complaint, is brought against Officer Kubler pursuant to 42 U.S.C. § 1983, and alleges that Kubler violated the Fourth Amendment of the United States Constitution by using excessive force. Officer KuT bier moved for summary judgment based on qualified immunity. The district court denied Kubler’s motion for summary judgment, and Kubler timely appealed.

II. Standard of Review

The Court has jurisdiction over the interlocutory appeal of the denial of qualified immunity as a collateral order under 28 U.S.C. § 1291. Wilkerson v. Seymour, 736 F.3d 974, 977 (11th Cir. 2013) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). We review de novo a district court’s denial of qualified immunity at summary judgment, and apply the same legal standards as the district court. Wilkerson, 736 F.3d at 977 (11th Cir. 2013); Draper v. Reynolds, 369 F.3d 1270, 1274 (11th Cir. 2004). We resolve all issues of material fact in favor of the plaintiff, and then determine the legal question of whether the defendant is entitled to qualified immunity under that version of the facts. Draper, 369 F.3d at 1274. “[I]n ruling on a motion for summary judgment, ‘[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’” Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). We do not weigh conflicting evidence or make credibility determinations; the non-movant’s evidence is to be accepted for purposes of summary judgment. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996); see also, e.g., Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (“ ‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when] ruling on a motion for summary judg-ment_’ ” (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505)).

III. Discussion

A. Qualified Immunity

“Qualified immunity shields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). To decide whether a defendant is entitled to qualified immunity we engage in a two-part inquiry. The defendant must first establish that he acted within the scope of his discretionary authority when the allegedly wrongful acts occurred. If he did, as in this case, the burden shifts to the plaintiff to demonstrate that the defendant violated a constitutional right that was clearly established at the time, see, e.g. Brooks v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015); Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002), or in rare circumstances, that the conduct was so obviously prohibited by the Fourth Amendment that the constitutional violation would be readily apparent to the officer with “obvious clarity.” Fils v. City of Aventura, 647 F.3d 1272, 1291-92 (11th Cir. 2011). To determine whether a right was clearly established, we look to binding decisions of the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state, here the Florida Supreme Court. See McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007). Based on these decisions, we ask “ ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 234-36, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). We may decide these two issues in either order, but to survive Kubler’s assertion of qualified immunity, the Plaintiff must make both showings that Kubler’s alleged conduct was unconstitutional, and that the state of the law at the time was clearly established so as to provide “fair warning” to Kubler that such conduct was unconstitutional. See Tolan, 134 S.Ct. at 1866; Maddox v. Stephens, 727 F.3d 1109, 1120-21 (11th Cir. 2013).

When considering qualified immunity on a defendants motion for summary judgment, we consider the record in the light most favorable to the plaintiff, eliminating all issues of fact. ‘“By approaching the record in this way, the court has the plaintiffs best case before it.... [M]aterial issues of disputed fact are not a factor in the court’s analysis of qualified immunity and cannot foreclose the grant or denial of summary judgment based on qualified immunity[.]’ ” Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010) (quoting Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005)). “[0]nce we have determined the relevant set of facts and drawn all inferences in favor of the non-moving party to the extent supportable by the record, the reasonableness of the officer’s actions is a pure question of law.” Penley, 605 F.3d at 848-49 (internal quotations and emphasis omitted).

B. Constitutional Violation

When a plaintiff alleges excessive force during an arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures. Tolan, 134 S.Ct. at 1865. “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks and citation omitted).

Because “[t]he test of reasonableness under the Fourth Amendment is not capable of a precise definition or mechanical application, [citation omitted], ... its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Id. (citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). We are charged with examining “the fact pattern from the perspective of a reasonable officer on the scene with knowledge of the attendant circumstances and facts, and balancing] the risk of bodily harm to the suspect against the gravity of the threat the officer sought to eliminate.” McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009) (citing Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). “Although some amount of force is generally needed to subdue a suspect, the amount used must be reasonably proportionate to the need for force.” Smith v. LePage, 834 F.3d 1285, 1294, 2016 WL 4473223, at *5 (11th Cir. August 25, 2016) (citing Lee, 284 F.3d at 1197-98); see also Scott, 550 U.S. at 383, 127 S.Ct. 1769 (observing that in determining whether the Fourth Amendment was violated, “we must still slosh our way through the fact-bound morass of ‘reasonableness.’ ”). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. We make this inquiry without regard to the officer’s underlying intent or motivation. Id. at 397, 109 S.Ct. 1865. “Officers may use force that is ‘necessary in the situation at hand.’ ” Fils, 647 F.3d at 1288 (citation omitted). However, “[rjeasonableness cuts both ways.... At summary judgment, we cannot simply accept the officers’ subjective version of events, but rather must reconstruct the event in the light most favorable to the non-moving party and determine whether the officer’s use of force was excessive under those circumstances.” Id (citing Vinyard v. Wilson, 311 F.3d 1340, 1347-48 (11th Cir. 2002)).

The critical time period for purposes of determining whether Officer Ku-bler’s use of the Taser on Barnes constituted unconstitutional excessive force spans two minutes, from 12:43:18, just before the first activation when Barnes can be heard yelling, through 12:45:17 p.m., the time of the fifth Taser deployment. While witness accounts of what happened vary, several witnesses testified that Barnes had stopped resisting and had become still during this time period.

. One witness stated that Barnes was not moving when Kubler approached the scene. “I know Mr. Barnes wasn’t moving. But he [Tactuk] like, lifts Mr. Barnes up and begins punching him again. And then he—the ATV officer [Tactuk] tells the marine officer [Kubler] to Tase him.” S. Richardson (Supp. App 79); see also S. Richardson (App. 1792-93 (Q: “Right before Mr. Baimes was Tased by the marine officer, was Mr. Barnes making any movement that you could see? [A:] Not that I recall, I don’t believe so.”). A second witness responded to questions as follows:

Q: At the point in time when Mr. Barnes was Tased, right before that, do you remember seeing any movement by Mr. Barnes at that time before he was Tased?
A: No.

B. Szenay (App. 1704). Another witness said that he saw “very minimal” body movements by Barnes after Kubler arrived at the scene. “I didn’t see a lot of movement other than maybe floundering feet around a little bit.” J: Hutzler (Supp. App. 7); see also J. Hutzler (App. 1256). Another witness testified:

A: He was still face down and the DEP officer [Tactuk] had control of him, but he wanted to like raise up or move or whatever. And it appeared that they wanted submission and they weren’t going to get it.
I didn’t see anything out of the ordinary. Actually, at- that point he was more submissive than any, because he was so wore out....
Q: Was his leg flailing around or moving around?
A: No.
Oh, he tried to get up, yeah.
. No [the handcuffs] weren’t [in the normal position]. And the only way he [Barnes] could have gotten up is to like roll over and do a swing move to get up and all that, so ... He was face down. So they [the officers] would have had no problem at all.

C. Szenay (Supp. App. 30-31). Kubler had warned Barnes to cooperate or be tased, and then Kubler “went straight for the taser.” Id. at 29-31. And yet another witness testified he saw Barnes struggling and kicking as Kubler was by Barnes’ side holding Barnes’ head on the ground, and observed that Barnes was kicking his legs when Kubler gave two warnings and shot the Taser. After the second tasing, however, “Mr. Barnes went stiff, stopped moving, and then a second later, started kicking his legs again. And then all of a sudden, just stopped kicking, stopped moving, stopped doing everything_Mr. Barnes was not moving at all. And the marine officer [Kubler] tased him again,” and then tased Barnes a fourth time. J. Esposito (App. 964).

We have held that noncompliance or continued physical resistance to arrest justifies the use of force by a law enforcement officer. See Draper, 369 F.3d at 1278 (holding that the use of Taser to effectuate an arrest did not constitute excessive force when the suspect repeatedly refused to comply with the officer’s verbal commands). However, “gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force.” Hadley, 526 F.3d at 1330; see also Lee, 284 F.3d at 1200 (holding that once an arrest has been fully secured and any potential danger or risk of flight vitiated, a police officer cannot employ severe and unnecessary force).

Construing the evidence in favor of Plaintiff, the unambiguous facts are that Barnes was no longer resisting at least after the first two tasings, and that Ku-bler’s further use of the Taser was wholly unnecessary, and grossly disproportionate to the circumstances. Kubler had arrived on the scene six and a half minutes earlier, found Barnes bleeding from the face and observed Tactuk striking Barnes multiple times. The two officers immobilized Barnes face down on the sand. Barnes had no weapon and was awkwardly handcuffed, which, drawing inferences from the facts in a light favorable.to Plaintiff, had a.greater than normal effect of further neutralizing Barnes. The record establishes that while the first or maybe even the second Taser deployment may have been warranted, there is competent unambiguous evidence that by the third tasing, Barnes was handcuffed, immobile and still, such that a reasonable officer in Kubler’s position would conclude that Barnes did not present a risk of flight, or a threat of danger to the officers or to the public. Under these circumstances, further shocks were unnecessary and grossly disproportionate, and a jury could find that Kubler’s use of a Taser on Barnes five times was unreasonable force.

To be sure, Kubler and Tactuk both testified that Barnes continued to resist violently throughout all of the tasings, and other witnesses agreed that Barnes was still rising up, kicking, struggling and refusing to comply with the, officers’ commands, As noted by the Supreme Court in a similarly charged and disputed excessive force case, “[t]he witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in .our adversarial system.” Tolan, 134 S.Ct. at 1868. We are tasked at this summary judgment stage not with weighing the evidence, making credibility choices or determining the truth of the matter, but with deciding whether there is a genuine issue for trial, viewing the evidence and making reasonable inferences in the light most favorable to Plaintiff. See id., at 1866,1868.

C. Clearly Established

A reasonable officer in Kubler’s position and under these circumstances would have had fair warning that repeatedly deploying a Taser on Barnes, after he was handcuffed and had ■ ceased resisting, was unconstitutionally excessive. In Lee, 284 F.3d 1188, we found that the officer who arrested a female motorist for a horn-honking offense, was not entitled to qualified immunity on summary judgment when he slammed the head of the non-resisting arrestee against the trunk of her car, after pulling her from the vehicle and handcuffing her. We held that based on the plaintiffs account of the facts, “it is abundantly clear” that the officer used force that was “plainly excessive, wholly unnecessary, and, indeed, grossly disproportionate under Graham.” 284 F.3d at 1198. At this point, after the plaintiff had been arrested and secured in handcuffs, she “posed no threat at all to the officer or to anyone else and no risk of flight,” making the officer’s use of force “unnecessary and disproportionate.” Id.

Thereafter, in 2008, we held that an officer who punched an arrestee in the stomach while the arrestee was handcuffed and not struggling or resisting, was not entitled to summary judgment on qualified immunity from' the arrestee’s § 1983 excessive force action. Hadley, 526 F.3d at 1330. In Hadley, the arrestee had entered a grocery store and was yelling and creating a commotion while high on cocaine. Two officers arrested the plaintiff for resisting arrest with violence, and handcuffed him while still in the store. Id at 1327-28. Though the plaintiff and the officers gave differing accounts of what happened next, we construed the facts in the plaintiff’s favor on the officers’ motions for summary judgment, finding that the officer punched the arrestee in the stomach after he was handcuffed and was not struggling or resisting. Id at 1330. We held that after being handcuffed, the plaintiff “neither resisted arrest nor posed a danger to [the officer] sufficient to warrant a blow to the stomach. Thus [the officer] was not entitled to use force at that time.” Id.

In 2009, this Court considered the reasonableness of aii officer’s repeated use of a Taser on an individual who was not accused of any crime; was not belligerent or aggressive or a risk of flight, and did not pose an immediate threat to the officer or others. Oliver v. Fiorino, 586 F.3d 898, 902, 906 (11th Cir. 2009). The officer in Oliver deployed a Taser multiple times, even after the individual was “immobilized,” “limp,” and “writhing in pain.” Id. at 908. Under those circumstances, we held that the officer was not entitled to qualified immunity because the force used was “so plainly unnecessary and disproportionate that no reasonable officer could have thought that this amount of force was legal under the circumstances.” Id. See also Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000) (Crediting unambiguous testimony that after plaintiff was arrested and handcuffed, officers repeatedly hit arrestée’s head on the pavement, kicked him, and knocked him unconscious, “suggests the officers used excessive force in beating Slicker even though he was handcuffed and did not resist, attempt to flee, or struggle with the officers in any way.”).

In light of this precedent, a reasonable officer in Kubler’s position would have had fair warning that repeatedly tasing Barnes after he was handcuffed and had ceased struggling and resisting was unreasonable under the Fourth Amendment. Kubler is not entitled to qualified immunity on Plaintiffs excessive force claim at this stage of the proceedings.

IV. Conclusion

The facts, when viewed in the light most favorable to Plaintiff, demonstrate that Officer Kubler’s multiple tasings of Barnes, after an arrest had been fully secured and any potential danger or risk of flight eliminated, violated Barnes’ clearly established constitutional right to be free from excessive force. For this reason, we AFFIRM the order of the district court denying Officer Kubler’s motion for summary judgment on qualified immunity grounds.