author: MARTIN, Circuit Judge:

text:
    Kevin CALDERONE, an individual, George Schwing, an individual, Michael Zaleski, an individual, Selena Lee, an individual, Plaintiffs-Appellants, v. Michael SCOTT, as the duly elected Sheriff of Lee County, Florida, Defendant-Appellee.
    No. 15-14187
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 09/28/2016

      Benjamin Harris Yormak, Yormak Employment & Disability Law, Bonita Springs, FL, for Plaintiffs-Appellants.
    Brian Koji, Nicolette Laleh Bidarian, David John Stefany, Allen Norton & Blue, PA, Shaina Thorpe, Thorpe & Thorpe PA, Tampa, FL, for Defendant-Appellee.
    Before MARTIN and JORDAN, Circuit Judges, and COOGLER, District Judge.

       Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama, sitting by designation.

      . Decisions of the former Fifth Circuit issued prior to October 1, 1981 are binding precedent on this Court. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

   MARTIN, Circuit Judge:

This interlocutory appeal asks whether employees may maintain a collective action against their employer under § 216(b) of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq„ at the same time as a class action brought based on state law and pursuant to Federal Rule of Civil Procedure 23(b)(3). The FLSA’s § 216(b) requires plaintiffs to “opt in” to be considered class members. In contrast, a Rule 23(b)(3) class action requires plaintiffs to “opt out” if they do not wish to be bound by the court’s judgment. The District Court found that, under LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975) (per curiam), these two types of actions are “mutually exclusive and irreconcilable.”

We reverse because we conclude that an FLSA collective action and a Rule 23(b)(3) state-law class action may be maintained in the same proceeding. We join the D.C., Second, Third, Seventh, and Ninth Circuits in so holding. See Busk v. Integrity Staffing Sols., Inc., 713 F.3d 525, 528-30 (9th Cir. 2013), rev’d on other grounds, Integrity Staffing Sols., Inc, v. Busk, 574 U.S. -, 135 S.Ct. 513, 190 L.Ed.2d 410 (2014); Knepper v. Rite Aid Corp., 675 F.3d 249, 259-62 (3d Cir. 2012); Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 247-49 (2d Cir. 2011); Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 973-74 (7th Cir. 2011); Lindsay v. Gov’t Emps. Ins. Co., 448 F.3d 416, 424 (D.C. Cir. 2006).

I.

Named plaintiffs Kevin Calderone, George Schwing, Michael Zaleski, and Selena Lee (“employees”) sued, bringing minimum wage and overtime claims against Michael Scott in his official capacity as the Sheriff of Lee County, Florida. They brought their claims under the FLSA as well as the Florida Minimum Wage Act (“FMWA”), Fla. Stát. § 448.110. On behalf of themselves and others similarly situated, the employees say they performed off-the-clock work for which they were not paid. The District Court granted conditional certification under § 216(b) for the employees’ FLSA claims, but denied conditional Rule 23(b)(3) certification for their FMWA claims. The employees timely asked for permission to appeal under Rule 23(f), and this Court allowed the appeal.

II.

We review for abuse of discretion a district court’s denial of class certification. Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1305 (11th Cir. 2012). “A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in ruling on class certification, makes clearly erroneous factfind-ings, or applies the law in an unreasonable or incorrect manner.” Id. at 1305-06 (quotations omitted).

Section 216(b) of the FLSA and Rule 23(b)(3) are animated by similar concerns about the efficient resolution of common claims. Like a Rule 23(b)(3) class action, a collective action under § 216(b) gives “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources” and allows for “efficient resolution in one proceeding of common issues of law and fact arising from the same alleged [unlawful] activity.” Hoff-mann-La Roche, Inc, v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 486, 107 L.Ed.2d 480 (1989). But what worried the District Court was the fact that the procedural rules governing these two types of actions are distinct. In an FLSA collective action, an employee must consent' in writing in order to be considered a party to the action. See 29 U.S.C. § 216(b) (“No employee shall be a party plaintiff to [an FLSA collective action] unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”)- Said another way, an FLSA collective action is “opt-in.” To maintain an opt-in collective action under § 216(b), plaintiffs must demonstrate that they are “similarly situated.” Id. At the certification stage, this requirement is “not particularly stringent”:-opt-in plaintiffs “need show only that their- positions are similar, not identical, to the positions held by the putative class members.” Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1214, 1217 (11th Cir. 2001) (per curiam) (quotation omitted).

The certification requirements for a Rule 23 class action are more demanding. “[T]he putative class must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b).” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009) (quotation omitted). Rule 23(a) requires every putative class to satisfy the prerequisites of numerosity, commonality, typicality, and adequacy of representation. See Fed. R. Civ. P. 23(a). Here, the employees sought certification under Rule 23(b)(3), “which additionally requires findings: (1) that common questions of law or fact predominate over questions affecting only individual class members (‘predominance’); and (2) that a class action is superior to other available methods for adjudicating the controversy (‘superiority’).” Vega, 564 F.3d at 1265; see also Fed. R. Civ. P. 23(b)(3).

In a Rule 23(b)(3) class action, all qualifying class members become members unless they opt out of the action. See Rule 23(c)(2)(B)(v) (explaining that “the court will exclude from the class any member who requests exclusion”). Class members “are bound by the judgment, whether favorable or unfavorable, unless they affirmatively ‘opt out’ of the suit.” Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1248 (11th Cir. 2003) (per curiam), This “opt-out” requirement is what makes a Rule 23(b)(3) class action a “fundamentally different creature” than a § 216(b) collective action, which depends for. its “existence . on the active participation of [class members].” Id. at 1249,

III.

A.

An FLSA collective action and a Rule 23(b)(3) class action may be fundamentally different creatures, but they are not “irreconcilable,” as the District Court found. Our sister Circuits have ruled, and we agree, that the FLSA’s plain text does not indicate that a collective action and a state-law class action cannot be maintained at the same time. See, e.g., Shahriar, 659 F.3d at 247 (“[W]e do not read the plain language of § 216(b) as ... affecting a federal court’s ability to obtain supplemental jurisdiction over state employment actions.”); Ervin, 632 F.3d at 977 (“Nothing [in the text of § 216(b) ] suggests that the FLSA is not amenable to state-law claims for related relief in the same federal proceeding.”). In relevant part, § 216(b) provides that:

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation.... An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.

29 U.S.C. § 216(b). This section explicitly authorizes employees to bring minimum wage, overtime, and anti-retaliation claims for themselves and people like them. At the same time, § 216(b) makes clear that a collective action cannot coexist with an action brought by the Secretary of Labor. See id. (“The right .., to bring [a collective action] ... shall terminate upon the filing- of a complaint by the Secretary ... in which a recovery is sought of unpaid minimum wages or unpaid overtime compensation under sections 206 and 207,”). This provision in § 216(b) shows that Congress knew how to categorically separate an FLSA collective action from other types of actions. Even with that knowledge, Congress included nothing in the statute which would cause an FLSA collective action to preempt a Rule 23(b)(3) class action based on state law, or vice versa.

To the contrary, the FLSA has an express savings clause, which says: “No provision of this chapter ... shall excuse noncompliance with any Federal or State law or municipal ordinance establishing [a higher minimum wage or a shorter maximum work week].” Id. § 218(a). The savings clause therefore establishes that the FLSA does not displace more protective state minimum wage and overtime laws. If Congress had wanted to prevent state-law Rule 23(b)(3) class actions from going forward together with FLSA collective actions, it would not have included a savings clause explicitly saying that the FLSA does not preempt state labor laws.

Even if we were to find the text, of the FLSA ambiguous (which we don’t), its legislative history reflects no congressional intent to disfavor state-law Rule 23(b)(3) class actions. As the Third ■ Circuit explained in Knepper, the opt-in requirement was added to § 216(b) by the Portal-to-Portal Act of 1947, Ch. 52, § 5(a), 61 Stat. 84, 87,- in response to a huge number of FLSA suits being brought by unions. See 675 F.3d at 254-55 (describing the “thousands of [ ] FLSA suits seeking back pay for ‘portal-to-portal’ violations ... [n]early all [ ] filed ... by unions”). By forcing putative plaintiffs to affirmatively consent to participate, the opt-in requirement was meant to stave off “excessive litigation spawned by plaintiffs lacking a personal interest in the outcome.” Hoffmann-La Roche, 493 U.S. at 173, 110 S.Ct. at 488; see also 93 Cong. Rec. 538, 2182 (1947) (remarks-of Sen. Donnell) (noting that the opt-in provision prevents collective actions “not brought in good faith, [ ] not brought by a party in interest, and [ ] not brought with the actual consent or agency of the individuals for whom an ostensible plaintiff filed the suit”).

- Wholly absent from the discussion of the Portal-to-Portal Act was any mention of opt-out class actions. .This makes sense because the FLSA had never been interpreted to allow such suits. And the Rule 23(b)(3) class action requiring class members to affirmatively opt out was not even created until 1966. See Amchem Prods., Inc, v. Windsor, 521 U.S. 591, 614-15, 117 S.Ct. 2231, 2245, 138 L.Ed.2d 689 (1997) (“In the 1966 class-action amendments, Rule 23(b)(3) .,. was the most adventuresome innovation[,] ... [allowing] class actions .... designed to secure judgments binding all class members save those who affirmatively elected to be excluded.” (quotation omitted)). When it created the opt-out class action, the Advisory Committee on Civil Rules made clear that the “present provisions of 29 U.S.C. § 216(b) are not intended to be affected by Rule 23.” Fed. R. Civ. P. 23, advisory committee’s note, reprinted in 39 F.R.D. 69, 104 (1966). This history teaches us that Congress ere? ated the FLSA’s opt-in requirement primarily as a check against the .power of unions and not to decrease the availability of opt-out class actions; again, opt-out class actions were not even available when the opt-in requirement was added to the FLSA. Also, when the Advisory Committee fashioned Rule 23(b)(3)’s opt-out requirement in 1966, it did so with special care not to upset the FLSA’s existing opt-in scheme. We conclude there is no “irre-conciliable” tension between these two types of actions.

B.

In arriving at its decision, the District Court looked to neither the text nor the legislative history of § 216(b). Instead, the District Court said LaChapelle establishes that overlapping FLSA and FMWA class actions are “mutually exclusive and irreconcilable.” On this basis, the District Court held that “an FMWA class action is not superior to other available methods for adjudicating [the employees’] claims” and therefore ruled that Rule 23(b)(3) was not satisfied.

We have come to the contrary conclusion. In LaChapelle, the former Fifth Circuit considered whether a plaintiff could bring a class action under Rule 23 for a violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. 513 F.2d at 287. That Court held that a plaintiff could not because Congress had directed that the ADEA be enforced in accordance with § 216(b) of the FLSA. Id. at 289; see also 29 U.S.C. § 626(b) (requiring the ADEA to be enforced “in accordance with [§ 216(b) ]”). Since § 216(b) of the FLSA authorizes only opt-in collective actions, the former Fifth Circuit held that “only ‘opt-in’ type class actions may be utilized in age discrimination cases [and that] Rule 23 cannot be invoked.” LaChapelle, 513 F.2d at 289. It was the plaintiffs attempt to bring a Rule 23 class action based on the ADEA that LaChapelle found “irreconcilable” with that statute’s requirements. LaChapelle ruled on a different statute than we have here. It did not address whether a party can pursue an FLSA collective action along with a parallel Rule 23(b)(3) state-law class action.

Perhaps for that reason, Sheriff Scott does not defend the District Court’s reliance on LaChapelle. Instead, he argues that the District Court denied Rule 23(b)(3) class certification based on the specific facts of this case. According to Sheriff Scott, the District Court “specifically relied on the fact that the [employees’] FLSA and FMWA claims were ‘overlapping’ and that the ‘putative FLSA and FMWA classes are identical’ ” in denying class certification. Although we don’t blame him for trying, Sheriff Scott’s attempt to l-ecast the District Court’s reasoning as a fact-based inquiry does not carry the day. The District Court clearly “concluded] that an FMWA class action is not superior to other available methods for adjudicating [the employees’] claims because overlapping FLSA and FMWA class actions are ‘mutually exclusive and irreconcilable.’ ” The District Court also explicitly said that it was “following] LaChapelle.” The District Court’s incorrect legal ruling that an FLSA collective action and a Rule 23(b)(3) class action cannot coexist was plainly based on a misapplication of La-Chapelle. For the reasons we have explained, LaChapelle does not control here, and we conclude that the District Court abused its discretion. See Little, 691 F.3d at 1305 (“A district court abuses its discretion if it ... applies the law in an unreasonable or incorrect manner.”)

C.

Sheriff Scott also makes two practical arguments. First, he appeals to the “confusion that would necessarily result [from] sending a second notice to the class members more than six months after the initial notice was provided, and after the expiration of the collective action deadline.” To the contrary, we conclude that the separate notices alleviate concerns about confusion. When the first notice went out, it informed putative plaintiffs only of the FLSA collective action claims. The opt-in period for the FLSA action is now closed. If a second notice goes out after the District Court reconsiders the employees’ motion for Rule 23(b)(3) certification on remand, it will include only the FMWA claims. That means these, putative plaintiffs will never be confronted with a notice that lists both an “opt-in” and an “opt-out” claim.

We also reject the idea that concerns about confusion render these two types of actions “irreconcilable” even where plaintiffs might be confronted with a combined notice listing both “opt-in” and “opt-out” claims. The Seventh. Circuit thoughtfully explained in Ervin that “confusion created by a notice is a valid case-management consideration ... [but] there is no indication that the problem is any worse than countless others that district courts face with class actions.” 632 F.3d at 978. We agree that “[i]t does not seem like too much to require potential participants to make two binary choices: (1) decide whether to opt in and participate in the federal action; (2) decide whether to opt out and not participate in the state-law claims.” Id. (emphasis omitted).

Second, Sheriff Scott argues that the FLSA collective action has progressed before the District Court, and so it would be imprudent to reverse at this stage. However, as Sheriff Scott himself acknowledges, the District Court can adjust the trial schedule to accommodate the FMWA class action, minimizing confusion and promoting efficient use of court resources. Sheriff Scott’s practical concern, while understandable, is not a compelling reason to adhere to the District Court’s erroneous legal decision.

IV.

A § 216(b) collective action and a state-law Rule 23(b)(3) class action may be maintained in the same proceeding. We reverse the District Court only with respect to its contrary conclusion on this point. On remand, the District Court must consider whether the employees’ putative class action meets the Rule 23(a) and (b)(3) requirements, as well as whether tp exercise supplemental jurisdiction over the class action under 28 U.S.C. § 1367(a).

REVERSED AND REMANDED.

      . The employees argue that the District Court has jurisdiction over their FMWA claims under 28 U.S.C. § 1367(a), which gives district courts “supplemental jurisdiction over all [] claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”

      . After the collective FLSA action was certified, the District Court approved a notice advising putative class members of the claims', and sixty-four more plaintiffs opted in. Including the named plaintiffs, the conditionally certified FLSA collective action now totals sixty-eight members.

      . The FMWÁ is precisely the type of state law the savings clause protects. While the FLSA has a two-year statute of limitations (three years for willful violations), the FMWA has a four-year statute of limitations (five years for willful violations). See Fla. Stat. § 95.1 l(2)(d), (3)(q); 29 U.S.C. § 255(a). Florida law also incorporates a significantly higher minimum wage than would be available under the federal statute. Compare Florida's Minimum Wage, Florida Department of Economic Opportunity (October 15, 2015), goo. gl/iLRkJT (setting Florida’s minimum wage at $8.05 per hour), with 29 U.S.C. § 206(a)(1)(C) (setting the federal minimum wage at $7.25 per hour).


source: Caselaw Access Project

author: ED CARNES, Chief Judge:

license: Public Domain

text:
    Bryson RAY, Plaintiff-Appellant, v. MCCULLOUGH PAYNE & HAAN, LLC, Defendant-Appellee.
    No. 16-11518
    Non-Argument Calendar
    United States Court of Appeals, Eleventh Circuit.
    (September 29, 2016)

      David Neal McDevitt, Thompson Consumer Law Group, MESA, AZ, Marques J. Carter, Law Office of Marques J. Carter, LLC, DOUGLASVILLE, GA, for Plaintiff-Appellant.
    John Gregory McCullough, McCullough Payne & Haan, LLC, ATLANTA, GA, for Defendant-Appellee.
    Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
   ED CARNES, Chief Judge:

■ The venue provision in the Fair Debt Collection Practices Act (FDCPA) requires that “[a]ny debt collector who brings any legal action on a debt against any consumer shall ... bring such action only in the judicial district or similar legal entity—(A) in which such consumer signed the contract sued upon; or (B) in which such consumer resides at the commencement of the action.” 15 U.S.C. § 1692i(a)(2). In this case,- the law firm of McCullough Payne & Haan, LLC filed-a lawsuit in state court against Bryson Ray, a consumer-debtor. In compliance with the FDCPA’s venue provision, the McCullough -firm brought that action in Fulton County, Georgia, where Ray resided. After obtaining a judgment against Ray in that action, the McCullough firm initiated a garnishment proceeding against Ray’s bank to collect on the judgment. As required ■ by Georgia law, it brought the garnishment action in Cobb County, Georgia, where the bank, as the garnishee, was located.

In response to the garnishment action, Ray filed this lawsuit, alleging that the' McCullough firm had violated the FDCPA by bringing the garnishment action in a judicial district other than the one in which Ray resided or signed the underlying contract. On the McCullough firm’s motion, the district court dismissed Ray’s complaint, concluding that the FDCPA’s venue provision does not apply to garnishment actions under Georgia law because the provision applies only to legal actions “against any consumer” and a garnishment action is against the garnishee, not the consumer. Ray appeals the district court’s dismissal, which we review de novo. See Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 585-86 (11th Cir. 2015).

The only question in this case is whether the FDCPA’s venue provision applies to post-judgment garnishment' proceedings. The McCullough firm maintains that this Court has already decided that question in Pickens v. Collection Services, 273 F.3d 1121 (11th Cir. 2001) (unpublished table decision). In that case, the district court concluded that the FDCPA’s venue provision does not apply to Georgia garnishment actions and we affirmed without opinion under 11th Circuit Rule 36-1, which has since been repealed. See id.; Pickens v. Coll. Servs. of Athens, Inc., 165 F.Supp.2d 1376, 1380-81 (M.D. Ga. 2001). The firm asserts that “the Eleventh Circuit affirmation in Pickens is binding authority on this panel.” That could not be more wrong. In this Court, unpublished decisions, with or without opinion, are not precedential and they bind no one. See 11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent — ”); United States v. Irey, 612 F.3d 1160, 1215 n.34 (11th Cir. 2010) (“Unpublished opinions are not precedential ....”); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1280 n.3 (11th Cir. 2001) (“An affir-mance pursuant to Rule 36-1 has no prece-dential value.”); Va. Props., Inc, v. Home Ins. Co., 74 F.3d 1131, 1132 n.2 (11th Cir. 1996) (explaining that when a panel affirms without opinion under Rule 36-1, the decision “will have no precedential value”) (quotation marks omitted). And, of course, district court opinions are not binding on us either. See Pereda v. Brookdale Senior Living Cmtys., Inc., 666 F.3d 1269, 1273 n.7 (11th Cir. 2012). No binding precedent answers the question whether the FDCPA’s venue provision applies to Georgia garnishment proceedings.

Three other circuits have answered that question as it pertains to the laws of 'other states. The First Circuit did so in Smith v. Solomon & Solomon, PC, 714 F.3d 73 (1st Cir. 2013), which involved post-judgment enforcement proceedings under Massachusetts’ trustee process. Like the McCullough firm, the law firm in Smith obtained a judgment against a consumer in the judicial district in which the consumer resided and then, about ten months later, it filed a collection action in another district against a “trustee” (in that case, the consumer’s employer), seeking to attach the consumer’s wages to satisfy the judgment. Id. at 74. The consumer filed suit, alleging that the law firm’s second action violated the FDCPA’s venue provision. Id. ■ While the parties agreed that “the FDCPA venue provision applies only to legal actions brought ‘against any consumer,’ ” they disputed “whether a post-judgment enforcement proceeding ... qualifies as a legal action ‘against any consumer.’ ” Id. at 75 (quoting 15 U.S.C. § 1692i(a)).

To answer that question, the Smith court looked to the state statutes and rules that governed Massachusetts’ trustee process. The statute required the judgment-creditor to file the collection action in the county in which the trustee or employer (not the consumer) was located, and the rules required the judgment creditor to direct the summons to the trustee or employer (not the consumer) and required the trustee or employer (not the consumer) to respond. Id. at 75-76. The First Circuit found that although the consumer had an interest in the proceedings and the statute allowed her to request a change of venue, “[flundamentally ... a Massachusetts trustee process action is geared toward compelling the trustee to act, not the debt- or.” Id. at 76. For those reasons, the First Circuit concluded that because post-judgment enforcement proceedings under Massachusetts law did not qualify as a legal action “against the consumer,” the FDCPA venue provision did not apply, to them. Id. at 76-77.

The Eighth Circuit reached the same result in Hageman v. Barton, 817 F.3d 611 (8th Cir. 2016), which involved post-judgment enforcement proceedings under Illinois law. Like the firms in this case and in Smith, the law firm in Hageman first obtained a judgment against the consumer in Missouri state court and then, several months later, initiated garnishment proceedings in Madison County, Illinois. Id. at 612-13. The consumer sued the law firm, contending, among other things, that the firm violated the FDCPA’s venue provision by bringing the garnishment action in a judicial district “where [he] neither worked nor resided and which bore no relationship to the underlying debt.” Id. at 617. The Eighth Circuit explained that “[t]he [FDCPA’s] venue restriction ... applies only to legal actions ‘on a debt against any consumer,’ ” which means that “the applicability of [the provision] depends upon whether ... the garnishment proceedings pursuant to Illinois law are legal actions ‘against any consumer.’” Id (quoting 15 U.S.C. § 1692i(a)).

Following the First Circuit’s lead, the Eighth Circuit looked to the state statutes governing Illinois’ garnishment proceedings. Like Massachusetts, Illinois required the judgment-creditor to direct its summons against the consumer’s employer (not the consumer) and required the employer (not the consumer) to respond to and comply with any garnishment order. Id. at 618. Based on that, the Eighth Circuit concluded that because a post-judgment garnishment action under Illinois law “did not amount to an action ‘against the consumer,’ ” the FDCPA’s venue provision did not apply to it. Id at 617.

Only one circuit has reached a contrary result. In Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1515 (9th Cir. 1994), the Ninth Circuit held that the FDCPA’s venue provision applied to post-judgment garnishment proceedings under Arizona law. That decision did not, however, discuss the “against any consumer” language in the FDCPA or whether its venue provision applied to actions directed at third parties rather than consumers. As such, it has little persuasive value. See Smith, 714 F.3d at 76-77; Hageman, 817 F.3d at 618.

In this case, the question is whether the FDCPA’s venue provision applies to post-judgment garnishment proceedings under Georgia law. As the First and Eighth Circuits have correctly explained, the FDCPA’s venue provision applies only to legal actions “against any consumer.” 15 U.S.C. § 1692i(a); see Smith, 714 F.3d at 75; Hageman, 817 F.3d at 617. That is what its words say and what its words mean. As a result, whether the provision applies to Georgia garnishment proceedings depends on whether those proceedings are legal actions “against any consumer.”

The answer to that question is not difficult. We know that a Georgia garnishment proceeding is not an action against a consumer because Georgia law tells us as much. The garnishment process in Georgia requires the judgment-creditor to direct its summons to the garnishee (not the consumer), Ga. Code § 18-4-8(a), and it requires the garnishee (not the consumer) to file an answer, Ga. Code § 18^-10(a). Not only that, but the governing statute specifically provides that “[a] garnishment proceeding is an action between the plaintiff [judgment-creditor] and garnishee.” Ga. Code § 18-4-15(a). Although the consumer “may become a party to the garnishment by filing a claim with the clerk of court,” id the process is fundamentally an action against the garnishee, not the consumer. For that reason, the FDCPA’s venue provision does not apply to post-judgment garnishment proceedings under Georgia law and Ray’s FDCPA claim therefore fails.

Ray contends that we should not adopt this interpretation for several reasons. He first argues that this reading fails as a matter of statutory construction. By its terms, the FDCPA’s venue provision applies only to a “legal action on a debt against any consumer.” .15 U.S.C. § 1692i(a). Ray asserts that, under the last-antecedent canon, the phrase “against any consumer” modifies only the term “debt” and not the term “legal action.” If he is correct, the venue provision would apply to “any legal action on a debt,” whether or not that action is against a consumer or some other third party, provided that the debt is “against any consumer.” Under that construction, the venue provision would apply to a Georgia garnishment proceeding because it is a “legal action” concerning “a debt against any consumer.”

We reject that tortured reading of the statute. To begin with, Ray invokes the wrong canon of construction. Because the statutory clause at issue here does not contain any pronouns and, “[s]trictly speaking, only pronouns have antecedents,” the last-antecedent canon does not apply. Antonin Scalia,& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 152 (2012); see also Lockhart v. United States, 577 U.S. -, 136 S.Ct. 958, 970, 194 L.Ed.2d 48 (2016) (Kagan, J„ dissenting). The more appropriate canon is the nearest-reasonable-referent canon, which “also applies to adjectives, adverbs, and adverbial or adjectival phrases.” Scalia & Garner, Reading Law at 152. That canon provides that “a prepositive or postpositive modifier normally applies only to the nearr est reasonable referent.” Id. The FDCPA’s venue provision contains two such modifiers: “on a debt” and “against any consumer.” The reason the second one does not modify the first one is because “on a debt” is itself a prepositional phrase that modifies its nearest referent, “any legal action.” See id. at 153. Under the nearest-reasonable-referent canon, “against any consumer” modifies “legal action,” and the FDCPA venue provision applies only to a “legal action ... against any consumer.”

Ray also argues that our reading of the FDCPA fails as a matter of policy. One purpose of the statute’s venue provision is to prevent debt collectors from filing suits in distant and inconvenient forums, thereby depriving consumers of the opportunity to defend themselves against debt-collection lawsuits. See Smith, 714 F.3d at 76 (citing S. Rep. No. 95-382 at 5 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699). Ray asserts that excluding post-judgment garnishment proceedings from the FDCPA’s coverage undermines that purpose. As the First Circuit explained in Smith, however, the concern that a consumer will lose his opportunity to defend himself from a debt-collection lawsuit “is not present in the case of a post-judgment proceeding.” Id. That is because “[t]he original suit to collect on the debt occurred in a forum that was convenient for [the consumer],” the consumer “had an opportunity to defend against it,” and the consumer was not “denied [his] day in court.” Id. (quotation marks omitted).

The Federal Trade Commission’s reading of the FDCPA supports this reasoning. See Smith, 714 F.3d at 76; Hageman, 817 F.3d at 618. The Commission’s commentary provides, “If a' judgment has been obtained from a forum that satisfies the requirements of this section, a debt collector may bring suit to enforce it in another jurisdiction.” Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097, 50,101 (Dec. 13, 1988). That interpretation makes sense, the Commission noted, “because the consumer previously has had the opportunity to defend the original action in a convenient forum.” Id. at 50,109. Although that commentary does not bind us, we accord it “considerable weight,” Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1372 n.2 (11th Cir. 1998).

Finally, Ray argues that our reading of the FDCPA fails as a matter of federalism. He asserts that the meaning of federal law should not hinge on state-law definitions and that our interpretation must instead “begin and end with the text of the federal law.” Not always, and not here. “Although federal law governs the interpretation of a federal statute,” federal law sometimes “adopts state law as the federal rule of decision.” In re Prudential of Fla. Leasing, Inc., 478 F.3d 1291, 1298 (11th Cir. 2007). And in interpreting a federal statute, we may look to state law when “a national rule is unnecessary to protect the federal interests underlying [a statutory scheme].” United States v. Kimbell Foods, Inc., 440 U.S. 715, 718, 99 S.Ct. 1448, 1453, 59 L.Ed.2d 711 (1979).

As we have already explained, our interpretation of the venue provision is consistent with the statute’s purpose. Under our reading, a debt collector must still bring its original action against the consumer in a venue prescribed by the FDCPA. Once it has obtained a judgment, however, the debt collector may bring an action in another jurisdiction to enforce it. That statutory scheme affords the consumer an opportunity to defend himself against the original action in a convenient forum. Because a national rule in this context is unnecessary to ensure that opportunity, it is appropriate to look to state law to determine whether a state’s post-judgment enforcement proceedings are “against any consumer” for the purposes of the FDCPA.

AFFIRMED.

      . The McCullough firm contends that the record "does not indicate whether the garnishment action was a wage garnishment [against Ray’s employer] or a bank garnishment [against Ray’s bank],” Ray contends that it was a bank garnishment action. Because the outcome of this case does not depend on that issue, we will assume without deciding that Ray’s bank was the defendant in the garnishment action.


author: FAY, Circuit Judge:

text:
    CATHERINE S. CADLE, Plaintiff-Appellant, v. GEICO GENERAL INSURANCE COMPANY, Defendant-Appellee.
    No. 15-11283
    United States Court of Appeals, Eleventh Circuit.
    September 30, 2016

      Stephen Anthony Marino, Jr., Benjamin C. Hassebrock, Claudia Medina, Danya J. Pineavage, Ver Ploeg & Lumpkin, PA, Miami, FL, Diana Widjaya, Ver Ploeg & Lumpkin, PA, Orlando, FL for Plaintiff-Appellant.
    Billy Richard Young, Megan Alexander, Megan Marie Hall, Courtney F. Smith, Jordan M. Thompson, Young Bill Roumbos & Boles, PA, Pensacola, FL, for Defendant-Appellee.
    .Mark Andrew Boyle, Sr., Molly Ann Chafe Brockmeyer, Boyle & Leonard, PA, Fort Myers, FL, for United Policy Holders, Amicus Curiae.
    Before WILLIAM PRYOR and FAY, Circuit Judges, and ROBRENO, District Judge.

       Honorable Eduardo C. Robreno, United States District, Judge for the Eastern District of Pennsylvania, sitting by designation.

   FAY, Circuit Judge:

Catherine S. Cadle appeals judgment as a matter of law granted to GEICO General Insurance Company (“GEICO”) in her bad-faith diversity action, controlled by Florida law. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Facts

On July 27, 2007, Cadle was injured in an automobile accident on 1-95, when she was rear-ended by Derek S. Friend. Cadle was insured by GEICO under a stacked uninsured motorist (“UM”) policy with a $75,000 limit. Friend was insured by Allstate under a policy with a $25,000 limit.

Following the accident, Cadle consulted her primary-care physician, who prescribed three weeks of physical therapy, which did not alleviate Cadle’s pain. In August 2007, she was referred for an MRI of her cervical spine and a neurosurgical consultation. This resulted in pain management, including epidural injections. Between August 2007 and June 2008, Cadle had ten facet or nerve blocks, which required anesthesia. None effectively managed her pain. Cadle had a preexisting-neck injury that had required surgery in France in 1989, but she had been doing well prior to the July 27, 2007, automobile accident.

After evaluating Cadle’s medical records, GEICO offered $500 to settle her UM claim on June 3, 2008. Cadle’s attorney responded by demanding the $75,000 UM limit on June 11, 2008, and including all her medical records. On July 11, 2008, GEICO offered $1,000 to settle Cadle’s claim and noted “[tjhere was no final evaluation provided in your demand giving any permanency to your client, which leaves a question regarding threshold breach .[of Florida Statutes § 627.727(7) ].” PL’s Tr. Ex. 8A. Cadle rejected GEICO’s offer.

On September 17, 2008, Cadle filed her first Civil Remedy Notice (“CRN”) under Florida Statutes § 624.155 against GEI-CO. Almost fourteen months after Cadle’s accident, the CRN advised she was still under the care of her treating physician and a neurosurgeon, with whom she had discussed surgical intervention; she continued to require pain management. Her medical bills were “in excess of fifty thousand dollars ($50,000.00) and ... continually increasing.” Pl.’s Tr. Ex. 9A at 2.

During the sixty-day, safe-harbor or cure period, all GEICO requested were Cadle’s medical records from her 1989 surgery in France. It did not increase its settlement offer. In a letter dated November 17, 2008, the GEICO adjuster again noted “there was no final evaluation report submitted in the [June 11, 2008, $75,000] demand giving any permanency for Ms. Cadle, which leaves a questionable threshold breach [of § 627.727(7) ].” Pl.’s Tr. Ex. 10A at 1.

In March 2009, Cadle sued GEICO and filed a second CRN on April 2, 2009. This CRN noted continuing treatment and possible surgical intervention. Pl.’s Tr. Ex. 11A. Because this CRN was approaching expiration, the GEICO adjuster faxed Ca-dle’s attorney a May 29, 2009, letter stating inability to reach him. The attorney left a voicemail for the adjuster that day and claims he had not received any GEI-CO attempts to communicate with him. The adjuster returned the attorney’s call, during which the attorney explained Cadle was going to have surgery in the 2009 holiday season, because conservative measures had failed. The adjuster denies this call occurred.

On December 15, 2009, Cadle had surgery, because of the pain she had continued to experience. The surgery consisted of opening the front of her neck, removing the twenty-year-old facet from her prior surgery, and replacing it with a larger facet to stabilize her neck. Cadle returned to work on January 4, 2010, with a neck collar and bone stimulator.

GEICO contended Cadle did not treat for approximately ten months before her surgery. During that period, Cadle’s primary-care physician prescribed Oxyco-done, and she did rehabilitation exercises at home. She used the time to save money and vacation days so she could have the surgery and recover during the 2009 holidays, while providing care for .her three daughters and two stepsons.

On January 6, 2010, Cadle’s attorney sent her operation report to the GEICO staff counsel assigned to her UM case. On January 18, 2010, the staff counsel requested additional information regarding Cadle’s treatment and medical bills. Her attorney responded “the total medical bills ... are now $123,132.49, which is the amount that will be given to a jury for consideration.... There are still $51,155.35 of the previous amount that remains unpaid.” Def.’s Tr. Ex. 22A. Instead of tendering. its policy limits, GEICO served Cadle with a proposal for settlement in February 2010.

B. State UM Trial

In March 2013, Cadle’s UM claim was tried to a jury in the Circuit Court of Brevard County. At that time, none of Cadle’s doctors had assigned her a permanency rating, although she had not reached maximum medical improvement. On March 8, 2013, the jury found Cadle had sustained- a permanent injury within a reasonable degree of medical probability as a result of the July 27, 2007, accident and awarded her a verdict of $900,000. In his Partial Final Judgment, the state trial judge reduced the verdict amount to $816,636.31, after applying “set-offs for collateral sources and the prior bodily injury settlement.” Partial Final Judgment Order at 1, Cadle v. GEICO Gen. Ins. Co., No. 05-2009-CA-013025 (Fla. Cir. Ct. June 20, 2013)., The judge further stated:

GEICO GENERAL INSURANCE COMPANY elects to reduce the amount of the gross verdict to the underinsured motorist (UM) policy limits. However, this limitation shall not prejudice or limit in any' manner whatsoever, the Plaintiffs ability to seek and recover additional-damages, remedies, and causes of action, including, but not limited to an insurance company bad faith cause of action. Partial Final Judgment is therefore entered against Defendant, GEICO GENERAL INSURANCE COMPANY, and in favor of the Plaintiff, CATHERINE S. CADLE, in the sum of SEVENTY-FIVE THOUSAND ($75,000.00) DOLLARS [UM policy limit], together with interest thereon.....

Id. GEICO did not appeal this state judgment.

C. Federal Bad-Faith Trial

On October 15, 2013, Cadle filed this first-party, bad-faith diversity case in the Middle District of Florida against GEICO for failure to settle her claim, when it could and should have done so. GEICO moved for partial summary judgment and sought a determination the jury $900,000 verdict in the underlying state UM case was not binding as a measure of the damages in the federal bad-faith case. Cadle disagreed and maintained, if she had proved bad faith, then her damages were fixed at $900,000, less appropriate set-offs, from the state UM trial. In denying the GEICO motion for partial summary judgment, the district judge commented: “Florida law provides a statutory remedy for first party bad faith, but unfortunately does not establish a procedure for determining damages; and the law in this regard is in a state of flux.” Cadle v. GEICO Gen. Ins. Co., No. 6:13-cv-1591-Orl-31GJK, 2014 WL 4983791, at *1 (M.D. Fla. Oct. 6, 2014).

The three-day trial was conducted December 1-3, 2014. On cross examination of Cadle’s bad-faith expert, Paul Dolbow, GEICO’s attorney questioned him concerning whether GEICO would have had any indication that Cadle had sustained a permanent injury in the subject accident:

Q. In this case, when GEICO received the demand package dated June 11, 2008, there was not a single medical record stating that Mrs. Cadle had suffered a permanent injury from the accident, was there?
A. Not that I saw.

Trial Tr. vol. II at 236 (Dec. 2, 2014) (emphasis added). On redirect, Cadle’s attorney’s attempt to rehabilitate his expert’s testimony was unavailing:

Q. Prior to the surgery, were there any medical records in Mrs. Cadle’s file from which you could infer a permanent injury?
A. No.

Id. at 241 (emphasis added).

At the close of Cadle’s case, GEICO moved for a directed verdict:

Your Honor, the defense moves for a directed verdict on the basis that the plaintiff has failed in their burden of proof. Specifically, the claim is that GEI-CO acted in bad faith because GEICO did not accept a demand for $75,000 in underinsured motorist benefits.
And to' make my motion brief, I will simply assert that the plaintiffs just presented an expert witness who testified that at no time prior to the surgery was there any record indicating a permanent injury to Ms. Cadle nor was there any evidence presented to- GEICO from which permanent injury could be inferred.
Under those circumstances, she would be entitled to recover only her out-of-pocket expenses; and there has been no evidence put on in this trial as to what, if any, out-of-pocket expenses she sustained. So we move for a directed verdict.

Id. at 245 (emphasis added).

Cadle’s counsel then addressed the lack of additional medical records:
On the one hand, GEICO argues [Ca-dle] didn’t treat for almost a year. On the other hand, during that period of time they say, “You didn’t give us any more medical records.”
Well, you can’t have it both ways. You can’t have her not have more medical records and then complain she didn’t give you more medical records.
JUDGE: She didn’t have any more medical records.
CADLE’S COUNSEL: Right, and she explained why, because she knew she had to have surgery.
There isn’t—we know what the records are. There isn’t a- note that says— JUDGE: There is nothing in that record that says GEICO ivas on notice that she had to have surgery. It’s just not there.

Id. at 249 (emphasis added).

Following" the argument by Cadle’s counsel that there was a reasonable inference from her medical records she needed surgery, the judge specifically noted the testimony of Cadle’s expert witness:

That’s your oim expert. I’m sorry, but when you call an expert, you’re kind of stuck with what that expert says; and he pretty much pulled the rug out from under your claim.... [The expert] also said there was no evidence of a threshold breach at the time. :So, you know, I mean, that’s what he said.

Id. at 252 (emphasis added). The judge, however, decided to reserve ruling on GEICO’s motion for judgment as a matter of law. GEICO rested without calling any witnesses, because its witnesses had testified in Cadle’s case.

GEICO had requested a jury instruction on an insured’s burden of proof to recover noneconomic damages in a UM claim under § 627.727(7). Following' closing arguments and the jury’s retiring to deliberate, GEICO renewed its motion for judgment as a matter of law. The judge again reserved deciding the motion. On December 3, 2014, the jury found Cadle had proved by a preponderance of the evidence GEI-CO had acted in bad faith by failing to settle her underinsured motorist claim. The judge gave GEICO fourteen days to file a written motion to substantiate its motion for judgment as a matter of law with the opportunity for Cadle to respond.

GEICO based its renewed motion for judgment as a matter of law on Cadle’s “fail[ure] to present any evidence that [she] had sustained a permanent injury which would have entitled [her] to non-economic damages and thus no reasonable jury could conclude that GEICÓ acted in bad faith in its handling of [her] UM claim.” GEICO’s Renewed Mot. for J. as a Matter of Law at Í. Specifically, GEICO argued Cadle’s expert “testified that when GEICO received [Cadle’s] demand for the $75,000 policy limits and the two Civil Remedy Notices, there were no medical records which indicated that [Cadle] had suffered a permanent injury.” Id. at 10. Even Cadle’s attorney in the state UM case “testified that there was nothing in the documents that he provided to GEICO which indicated that [Cadle] suffered a permanent injury as a result of the [automobile] accident.” Id. at 11. Consequently, Cadle “was only entitled to economic damages, which [i]ndisputably were not $75,000 and therefore [Cadle] was not entitled[ ] to, as a matter of law, the UM policy limits.” Id. at 12. “[B]ased on the information provided to GEICO, [Cadle] did not have any out-of-pocket expenses,” because she “had recovered $25,000 from the torfeasor’s bodily injury policy and $10,000 in PIP [personal injury protection] coverage and had health insurance to cover her medical expenses.” Id. at 12-13. In opposition, Cadle argued a totality-of-the-eircum-stances analysis and concluded whether GEICO showed bad faith in failing to settle her UM claim remained a question for the jury, not the judge.

In determining whether judgment as a matter of law was the correct resolution of Cadle’s bad-faith action, the district judge noted Cadle had filed a CRN on September 17, 2008, which alleged “GEICO [had] acted in bad faith by failing to settle ... Cadle’s claim in violation of Florida Statutes § 624.155,” and an amended CRN “was filed on April 2, 2009, shortly after Cadle had filed suit against GEICO in the Brevard County Circuit Court. The sixty day cure period under Florida law expired on June 1, 2009.” Order at 3, Cadle v. GEICO Ins. Co., No. 6:13-cv-1591-Orl~ 31GJK (M.D. Fla. Feb. 24, 2015) (granting GEICO’s renewed motion for judgment as a matter of law) (emphasis, added). The state jury’s ÜM ' verdict for Cadle of $900,000 on March 8, 2013, was reduced to the $75,000 policy limit; consequently, Ca-dle sought "the balance of that verdict, less setoffs~$741,636.31, plus attorney’s fees and costs” in the bad-faith case. Id,

Because Cadle may recover only economic damages (medical expenses and wages) if her injuries do not meet the threshold requirement of permanent injury under Florida Statutes § 627.737(2), the judge reasoned “the vitality of her $75,000 demand and GEICO’s good faith obligation to pay it depends entirely on whether GEICO had reason to believe, prior to June 2009, that ... Cadle had suffered a permanent injury.” Id, at 4 (emphasis added). After review of all the evidence presented at trial, the judge concluded no evidence supported Cadle’s claim “GEICO was aware or should have known that she had a permanent injury prior [to] January 2010 when [Cadle’s attorney] informed GEICO of [her] December 2009 surgery,” including her expert witness. Id. at 5. Although Cadle contends GEICO should not have relied on her production of medical records “and instead should have obtained its own set of medical records and requested an independent medical examination of .,. Cadle,” the judge concluded “the insurer’s duty does not go' this far,” Id.

The judge commented:

Reliance on the documents provided by and representations made by [Cadle’s] lawyer cannot amount to bad faith, and [Cadle] has cited no authority to the contrary. Rather, the insurer is entitled to rely on the documents provided by [Cadle’s] counsel, and the representations. made by him concerning his client’s claim.

Id. The judge additionally noted: “Moreover, there is no evidence that such additional investigations would have produced a different result.” Id. The judge granted GEICO’s renewed motion for judgment as a matter of law. Judgment was entered on February 26, 2015; Cadle timely appealed. We review whether judgment as a matter of law correctly was entered for GEICO, when Cadle failed to establish permanent injury under § 627.727(7) for noneconomic damages within the cure period.

II. ANALYSIS

On appeal, Cadle first argues there was sufficient evidence presented at trial for the jury to have concluded her injury was permanent at the time of her settlement demand. Second, Cadle contends her burden of proof under the totality-of-the-circumstances analysis does not require her to prove a permanent injury at the time of her settlement demand. For these reasons, Cadle requests our court “to reverse the district court’s judgment and restore the jury’s verdict, or alternatively, certify this question of first impression to the Florida Supreme Court.” Appellant’s Initial Br. at 15.

A. Review Standards

In diversity cases, we apply the substantive law of the forum state.. Bravo v. United States, 577 F.3d 1324, 1325 (11th Cir. 2009), We review de novo a district judge’s granting judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and apply the same standard as, the trial judge. Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1149 (11th Cir. 2005). In reviewing the record evidence, we draw all inferences in favor of the nonmoving party. Id. “[W]e compare the grounds originally argued by the movant in its Rule 50(a) motion with those cited by the trial court in granting a renewed motion for judgment as a matter of law.” Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998). “If the grounds argued in a motion under Rule 50(a) are closely related to those argued in a Rule 50(b) motion, then setting aside a jury’s verdict is no surprise to the non-movant. No. Seventh Amendment right is ambushed.” Id. (citation and internal quotation marks omitted). Great variance between the old and new grounds precludes a judge from relying “on the new grounds to set aside the jury’s verdict.” Id.

In considering a Rule 50(b) motion after the jury verdict, “only the sufficiency of the evidence matters. The jury’s findings are irrelevant.” Connelly v. Metro. Atlanta Rapid Transit Auth., 764 F.3d 1358, 1363 (11th Cir. 2014) (Citation and internal quotation marks omitted). ‘“[T]hat Rule 50(b). uses the word “renewed” makes .clear that a Rule 50(b) motion should be decided in the same way it would have been decided prior, to the jury’s verdict, and .that the jury’s particular findings are not germane to the legal analysis.’ ” Id. (quoting Chaney v. City of Orlando, 483 F.3d 1221, 1228 (11th Cir. 2007)) (alteration in original). Judgment as a matter of law for a defendant is appropriate, “when there is insufficient evidence to prove an element of the claim, which means that no jury reasonably could have reached a verdict for the plaintiff on that claim.” Collado, 419 F.3d at 1149; see Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1344-45 (11th Cir. 2000) (“A Rule 50(b) motion should only be granted where reasonable jurors could not arrive at a contrary verdict.” (citation, internal quotation marks, and alteration omitted)).

B. Interrelationship Between UM and Bad-Faith Trials: Binding Effect of Damages Determination in First-Party UM Trial

Since this case was argued in our court, the Florida Supreme Court has issued a definitive opinion clarifying the interrelationship between. UM and bad-faith trials. Fridman v. Safeco Ins. Co. of III., 185 So.3d 1214 (Fla. 2016). Because resolution of this case is governed by Frid-man and the Florida law it explains, we review the applicable instruction' of Frid-man. In Fridman, the Florida Supreme Court made clear “that the insured is entitled to a jury determination of the amount of damages in the UM action.” Id. at 1222. “‘[Ajbsent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the plaintiff’s damages, a cause of action cannot exist for a bad faith failure to settle.’ ” Id. (quoting Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla. 1991) (answering Eleventh Circuit certified question whether bad-faith claim had to be asserted in the UM action against the insurer for UM benefits)). Consequently, “the insured is entitled to a determination of liability and the full extent of damages before litigating the bad faith cause of action.” Id. at 1223 (emphasis added).

“Because we have concluded that the insured is entitled to a determination of the full extent of damages in the UM action, it follows that such a determination is binding in the subsequent bad faith action against the same insurer.” Id. at 1225. “If the amount of the UM verdict is not binding as an element of damages in the bad faith litigation, it would allow the insurer—or the insured, if the verdict were less than anticipated—a second bite at the proverbial apple.” Id. That would result in “serious, unintended consequences,” including relitigating the damages again in a bad-faith trial, “inconsistent verdicts,” and “comity issues between state and federal courts,” which would be a “waste of judicial and litigant resources.” Id. (citation and internal quotation marks omitted). Consequently, “there must be an opportunity for both parties to obtain appellate review of any timely raised claims of error in the determination of damages obtained in the UM trial, for the very reason that it becomes binding as an element of damages in the subsequent bad faith case.” Id. at 1226 (emphasis added).

The “ ‘damages in first-party bad faith actions are to include the total amount of a claimant’s damages, including any amount in excess of the claimant’s policy limits without regard to whether the damages were caused by the insurance company”—damages that are, in substance, a penalty.” Id. at 1223 (quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 60 (Fla. 1995)) (emphasis added). “Nothing in our precedent suggests that the eventual tendering of the policy limits renders the UM case moot.” Id. The Fridman court “conclud¿[d] that an insured is entitled to a determination of liability and the full extent of his or her damages in the UM case prior to filing a first-party bad faith action.” Id. at 1224. That court “rejected] the suggestion that errors in the computation of the UM verdict are necessarily harmless where the damages reflected in the UM verdict are significant relative to the UM policy limits because the damages will eventually become pari of the subsequent bad faith case.” Id. at 1228 (emphasis added). Consequently, the Florida Supreme Court “conclude[d] that the determination of damages obtained in the UM action becomes a binding element of damages in the subsequent bad faith litigation against the same insurer.” Id.

C. Procedural Requirements for Bad-Faith Case Against an Insurer

1. Insurer’s Good-Faith Duty to Insured

The Fridman court recognized “the Florida Legislature created a statutory first-party bad faith cause of action” by enacting § 624.155 in 1982. 185 So.3d at 1220 (citing Fla. Stat. § 624.155(l)(b)l). “This provision extended the duty of an insurer to act in good faith in handling claims brought by its own insured under a UM policy and exposed' the insurer to the consequences of failing to do so.” Id. The Florida Supreme Court has delineated the duty of good faith an insurer owes its insured:

An -insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith.

Berges v. Infinity Ins. Co., 896 So.2d 665, 668-69 (Fla. 2004) (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785. (Fla. 1980)) (ellipsis in original) (emphasis added).

While the determination of whether an insurer acted in bad faith in handling an insured’s claims generally is decided under the totality of the circumstances, each case is decided on its facts. Id. at 680. “Although the issue of bad faith is ordinarily a question for the jury, [the Florida Supreme Court] and the district courts [of appeal] have, in certain circumstances, concluded as a matter of law that an insurance company could not be liable for bad faith.” Id. (emphasis added). Where-a judge concludes as a matter of law a plaintiff has not established her 'bad-faith case against-an insurer, he must remove the case from the jury for decision.

2. Civil Remedy Notice and Sixty-Day Cure Period

“As a condition precedént to filing a civil action [for bad faith] under section 624.155, ‘the Florida Department of Financial Services and the authorized insurer must have been given 60 days’ written notice of the violation.’” Fridman, 185 So.3d at 1220 (quoting Fla. Stat. § 624.155(3)(a)) (alteration omitted). “This notice is commonly referred to as the ‘civil remedy notice.’” Id. Under the statute: “No action shall lie if, within 60 days after filing notice, the damages are paid' or the circumstances giving rise to the violation are corrected.” Id. (quoting Fla. Stat. § 624.155(3)(d)).

“The sixty-day window is designed to be a cure period that will encourage payment of the underlying claim, and avoid unnecessary bad faith litigation.” Talat Enters., Inc. v. Aetna Cas. & Sur. Co., 753 So.2d 1278, 1282 (Fla. 2000) (citation and internal quotation marks omitted). This cure period “provides insurers with a final opportunity ‘to comply with their claim-handling obligations when a good-faith decision by the insurer would indicate the contractual benefits are owed.’ ” Fridman, 185 So.3d at 1220 (quoting Talat Enters., 753 So.2d at 1284). “[I]f an insurer fails to respond to a civil remedy notice within the sixty-day window, there is a presumption of bad faith sufficient to shift the burden to the insurer to show why it did not respond.” Id. (citation and internal quotation marks omitted). “Importantly, in both first- and third-party bad faith actions, an element of damages includes any amount in excess of the policy limits.” Id, at 1221 (citing Fla. Stat., § 627.727(10)). But, “[t]he statutory cause of action for extra-contractual damages simply never comes into existence until expiration of the sixty-day window without the payment of the damages owed under the contract.” Talat Enters., 753 So.2d at 1284.

The Florida Supreme Court has held expressly “a claim for bad faith pursuant-to section 624.155(l)(b)l is founded upon the obligation of the insurer to pay when all conditions under the policy would require an insurer exercising good faith and fair dealing towards its insured to pay.” Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275 (Fla. 2000). This obligation requires timely evaluation and payment of “benefits owed on the insurance policy.” Id. But the Florida Supreme Court noted

the denial of payment does not mean an insurer is guilty of bad faith as a matter of law. The insurer has a right to deny claims that it in good faith believes are not owed on a policy. Even when it is later determined by a court or arbitration that the insurer’s denial was mistaken, there is no cause of action if the denial was in good faith.

Id. (emphasis added).

3. Permanent-Injury Requirement for Noneconomic Damages

The Fridman court recognized § 627.727(10) “clearly and unambiguously reflects the legislative intent that the damages in section 624.155 bad faith actions shall include any amount in excess of the policy limits.” 185 So.3d at 1221. In contrast to this expansive coverage, the Florida Supreme Court has explained the requirement of a permanent injury for recovery of noneconomic damages:

Section 627.737(2)(b) provides that a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience (noneconomic damages) because of a bodily injury arising out of the use of a motor vehicle only in the event that the injury “consists in whole or in part of ... [pjermanent injury within a reasonable degree of medical probability.” Thus, as long as part of the bodily injury arising out of the motor vehicle accident involves a permanent injury “within a reasonable degree of medical probability,” the plaintiff can recover noneconomic damages related to his pain, suffering, mental anguish, and inconvenience for all of the injuries related to the accident. Additionally, pain is only one of the noneconomic damages provided in the statute. Suffering, mental anguish and inconvenience are also compensable noneconomic damages.

Wald v. Grainger, 64 So.3d 1201, 1207 (Fla. 2011) (alteration and ellipsis in original) (emphasis added). Consequently, insureds seeking noneconomic benefits from their uninsured-motorist carrier, first must meet the permanent-injury requirement of § 627.737(2)(a)-(d). “In view of section 627.727(7), it is clear that the statute does not require an insurance carrier to provide uninsured motorist coverage for pain, suffering, mental anguish, and inconvenience unless the threshold requirements of section 627.737(2) have been met.” Dauksis v. State Farm Mut. Auto. Ins. Co., 623 So.2d 455, 456 (Fla. 1993).

The Florida Supreme Court has explained the interrelationship of § 627.727(7) and § 627.737(2) regarding the medical proof required for a permanent injury resulting from an automobile accident:

[T]he statute[s] require['] that the plaintiff establish the existence of a physical injury and prove that this injury is permanent. Both elements must be proven “within a reasonable degree of medical probability.” We find that the statute[s] do[ ] not limit the evidence to objective findings to establish the existence or permanency of a physical injury....
However, thé státute[s]' do[ ]" provide a check on the evidence with [their] requirement that the existence and permanency of the injury be established “mthin a reasonable degree of medical probability.” By the terms of the statute[s], a mere recitation of the plaintiffs subjective complaints of pain is insufficient to prove a permanent injury—the plaintiff must also present expert medical testimony to establish the existence and permanency of the alleged injury.

City of Tampa v. Long, 638 So.2d 35, 37-38 (Fla. 1994) (quoting . Fla. Stat. § 627.737(2)(b)) (emphasis added). To recover noneconomic damages against an insurance carrier, a plaintiff must establish both the existence and permanency of the alleged injury resulting from the subject automobile accident.

D. Application

On appeal, Cadle argues the district judge erred by granting GEICO’s Rule 50(b) motion, which overruled the jury determination of bad faith and thereby precluded her obtaining the monetary remainder of her recovery found by the jury in the UM trial. She further contends there was sufficient evidence in the record to support the jury verdict that GEICO acted in bad faith in failing to pay her claim. Generally, judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure is appropriate when a party has been heard fully on its claim during a jury trial, and the district judge finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party. Fed. R. Civ. P. 50(a)(1). While the question of bad faith' by the insurer in .processing an insured’s claim is usually for the jury, the- verdict must be supported by legally sufficient evidence. Boston Old Colony, 386 So.2d at 785.

For Cadle to recover noneconomic damages, she had to show the existence and permanency of her injury from the July 27, 2007, accident within the sixty-day cure period after making her claim to GEICO. The testimony at her bad-faith trial by both her medical expert and UM attorney confirmed that at no time during the cure period did Cadle produce to GEI-CO medical evidence of the permanency of her injury. Noneconomic damages are available under an insurance policy only if the plaintiff incurs a “permanent injury,” which must be established “within a reasonable degree of medical probability” within the cure period. Fla. Stat. § 627.737(2)(b).

While witness credibility determinations traditionally are a jury function,

the court should review the record as a whole[;] it must disregard all evidence favorable to the moving party, that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that evidence .supporting the moving party that is uncontradicted and unim-peached, at least to the extent that that evidence comes from disinterested witnesses.

Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000) (citations and internal quotation marks omitted) (emphasis added). By reserving ruling on GEI-CO’s summary judgment motion and Rule 50(a) motion, the district judge clearly found the testimony of Cadle’s expert at the bad-faith trial was determinative. The former Fifth Circuit has explained:

[T]he trier of fact would not be at liberty to disregard arbitrarily the unequivocal, uncontradicted and unimpeached testimony of an expert witness, ivhere, as here, the testimony bears on technical questions of medical causation beyond the competence of lay determination. Indeed, such opinion testimony may form the basis for a directed verdict.

Webster v. Offshore Food Serv., 434 F.2d 1191, 1193 (5th Cir. 1970) (citations omitted) (emphasis added).

In granting GEICO’s renewed motion for judgment as a matter of law, the judge explained:

[Djespite numerous opportunities, [Cadle’s attorney] never provided any evidence of a permanent injury and never even attempted to address the threshold issue [of permanent injury], except to note that his client was considering surgical intervention. This possibility of surgical intervention is not, however, notice of permanent injury.
Absent evidence of a permanent injury, there was no basis for GEICO to value [Cadle’s] UM claim at or above $75,000. Accordingly, there was no credible evidence presented to the jury to support a finding of bad faith.

Order at 6, Cadle v. GEICO Ins. Co., No. 6:13-cv-1591-Orl-31GJK (footnote omitted) (emphasis added).

In an analogous case, involving an automobile accident, a UM trial in state court, and a bad-faith trial in federal court, our court affirmed the district judge’s granting an insurer’s Rule 50(b) motion, because the plaintiff-appellant “did not provide expert medical evidence of permanency during the safe-harbor period.” Harris v. GEICO Gen. Ins. Co., 619 Fed.Appx. 896, 899-(11th Cir. 2015) (unpublished but recognized for persuasive authority). We noted Harris “fail[ed] to cite any evidence that expert medical testimony as to permanency was presented at the UM trial. Therefore, no reasonable juror could find GEICO denied Harris non-economic damages in bad faith.” Id. at 899-900.

III. CONCLUSION

“If an uninsured motorist is not liable to the insured for damages arising from an accident, then the insurer has not acted in bad faith in refusing to settle the claim.” Blanchard, 575 So.2d at 1291. Under the clear language , of Florida law regarding noneconomic damages in an insurance bad-faith case, the district judge was correct to conclude the jury had no evidence from which it reasonably could have found GEICO had acted in bad faith. There was no evidence of permanency during the cure period, which is required under Florida law. The district judge’s granting GEICO’s Rule 50(b) motion is AFFIRMED.

      . Under Florida law and applicable in this case, "uninsured motorist” encompasses "un-derinsured motorist.” Fla. Stat. § 627.727(3)(b) ("[T]he term ‘uninsured motor vehicle’ shall ... be deemed to include an insured motor vehicle when the liability insurer'thereof [h]as provided limits of bodily injury liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages.”). Section 627.727(3) "sets forth the circumstances where an insured motor vehicle will be considered ‘uninsured,’ such as when the vehicle is underinsured because the ‘liability insurer’ provided limits of liability lower than the damages sustained.” Young v. Progressive Se. Ins. Co., 753 So.2d 80, 85 (Fla. 2000) (citing Fla. Stat. § 627.727(3)(b)).

      . Cadle had cervical spine surgery to stabilize her neck in 1989. The surgery occurred in Paris and resulted in the placement of a metal plate in the front of Cadle’s neck. The injury that is the subject of this bad-faith claim occurred in the same physical location as her previous surgery.

      . GEICO eventually authorized settlement up to $19,575.26 but did not tender that amount to Cadle, because they were “not in the same ball park.” Pl.’s Tr; Ex. 15A at GLC 004611.

      . GEICO noted, when it became aware Cadle "underwent a surgery, [it] tendered the $75,000 policy limits, which were rejected,” so "GEICO had no opportunity to settle [Ca-dle’s] UM claim after she underwent surgery.” GEICO’s Renewed Mot, for J. as a Matter of Law at 12 n.3.

      . GEICO did engage a radiologist, Dr. Michael J. Foley, to review all of Cadle’s cervical-spine-radiology tests, including MRIs. Dr. Foley’s February 2, 2010, report for GEICO concluded: "The findings discussed above appear chronic and degenerative in nature.’ I see nothing acute to suggest the findings noted are related to the date of [the] accident of 7/27/07.” Def.’s Tr. Ex. 23 at 7.

      . We note neither party has filed supplemental authority concerning the directly applicable, post-oral-argument issuance of Fridman by the Florida Supreme Court.

      . In an extensive footnote, the Fridman court notes Florida federal-district-court cases, including Cadle (regarding the summary judgment order, denying GEICO’s partial-summary-judgment motion arguing the $900,000 jury verdict in the UM case was not binding), where the “issue of the binding effect of the underlying verdict for damages in excess of the policy limits and the ability to appeal the verdict for errors appears to have created concerns for Federal District Court judges in Florida.” 185 So.3d at 1227 n.5. The court also addresses two such district-court cases our court has affirmed. Harris v. Geico Gen. Ins. Co., 961 F.Supp.2d 1223 (S.D. Fla. 2013), aff’d, 619 Fed.Appx. 896 (11th Cir. 2015); King v. Gov’t Emps. Ins. Co., No. 8:10-cv-977-T-30AEP, 2012 WL 4052271 (M.D. Fla. Sept. 13, 2012), aff’d, 579 Fed.Appx. 796, 801-03 (11th Cir. 2014). The Florida Supreme Court states:
      In both cases, on appeal, the Eleventh Circuit Court of Appeals; declined to address the issue of whether the excess verdict in the underlying UM action was binding as to damages in the subsequent first-party bad faith action because it affirmed the decision that the insurer was found by the jury not to have acted in bad faith.

        Fridman, 185 So.3d at 1227 n.5.

      . "Any person may bring a civil action against an insurer when such person is damaged: By the commission of any of the following acts by the insurer: Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its , insured and with due regard for her or his interests....” Fla. Stat. § 624.155(l)(b)l.

      . Section 627.-727(10)-provides:
      The damages recoverable from an uninsured motorist carrier in an action brought under s. 624.155 shall include the total amount of the claimant’s damages, including the amount'in excess of the policy limits,
        any interest on unpaid benefits, reasonable attorney's fees and costs, and any damages caused by a violation of a law of this state. The total amount of the claimant’s damages is recoverable whether caused by an insurer or by a third-party tortfeasor.

        Fridman, 185 So.3d at 1221 (quoting Fla. Stat. § 627.727(10)).

      . The interrelated Florida Statutes § 627.727(7) and § 627.737(2).state and define the permanency requirements for non-economic damages:
      The legal liability of an uninsured motorist coverage insurer does not include damages in tort for pain, suffering, mental anguish, and inconvenience unless the injury or disease is described in one or more of paragraphs (a)-(d) of s, 627.737(2).
      Fla. Stat. § 627.727(7),
      In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
      (a) Significant and permanent loss of an important bodily function.
      (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
      (c) Significant and permanent scarring or disfigurement.
      (d) Death.
      Fla. Stat. § 627.737(2)(a)-(d).

      . The district judge instructed the jury on the permanent-injury requirement of § 627.727(7) for recovery of noneconomic damages:
      Florida law provides in pertinent part that a claimant may recover damages in tort for, quote, “pain, suffering, mental anguish, and inconvenience because of bodily injury” arising out of an automobile accident "only in the event that the injury ... consists in whole or in part of:
      (a) significant and permanent loss of an important bodily function;
      (b) permanent injury within a reasonable degree .of medical probability;
      (c) significant and permanent scarring or disfigurement; and,
      (d) death.”
      Trial Tr. vol. Ill at 24-25 (Dec. 3, 2014) (quoting Fla. Stat. § 627.737(2)(a)-(d)); see Fla. Standard Jury Instruction 501.3.

      . “It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give full effect' to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control List., 604 So.2d 452, 455 (Fla. 1992) (citations omitted).