Sherrie Hampton-Muhamed v. James B. Nutter & Company , 687 F. App'x 890 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15594
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cv-00608-JDW-TGW
SHERRIE HAMPTON-MUHAMED,
Plaintiff-Appellant,
versus
JAMES B. NUTTER & COMPANY,
BRUCE HUEY,
VP,
AL PITZNER,
VP Compliance,
RONALD R. WOLFE & ASSOCIATES, P.L.,
ANDREA D. PIDALA,
Esquire, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 9, 2017)
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Before WILSON, JULIE CARNES and BLACK, Circuit Judges.
PER CURIAM:
Sherrie Hampton-Muhamed, proceeding pro se, appeals the Northern
District of Georgia (“NDGA”) district court’s order transferring her case to the
Middle District of Florida (“MDFL”), and the MDFL district court’s eventual
dismissal of her amended complaint for failure to state a claim. She brought the
complaint against loan servicer/lender James B. Nutter & Company (Nutter &
Company) and four individual Nutter & Company officers (the Individual Nutter
Defendants), the law firm of Ronald R. Wolfe & Associates (RRW), and sixteen
individual RRW attorneys (the Individual RRW Defendants), for violations of the
Fair Debt Collection Practices Act, 15 U.S.C § 1692 et seq. (FDCPA), and the Real
Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (RESPA).
Her claims primarily relate to the defendants’ attempt to foreclose on a
Florida property that had been owned by Hampton-Muhamed’s brother, who is
now deceased. The district courts concluded, among other things, that the
foreclosure action was not “debt collection” subject to the FDCPA, that her claims
based on letters sent to her before the foreclosure action began were time barred,
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and that she lacked standing to sue under RESPA because she was not a party to
her brother’s promissory note with Nutter & Company. After review, 1 we affirm.
I. DISCUSSION
A. Transfer
Under 28 U.S.C. § 1404(a), a district court may transfer any civil action to
any other district where the case might have been brought, or to any district to
which all parties have consented, “in the interest of justice,” and “[f]or the
convenience of parties and witnesses.” Here, the NDGA court properly
determined that the case could have been brought in the MDFL. 28 U.S.C.
§§ 1404(a), 1391(b). Various facts support the NDGA court’s decision to transfer
the case. The NDGA court did not have jurisdiction over the Individual RRW
Defendants; the property itself is in Florida and the foreclosure proceedings are in
Florida; the majority of witnesses and relevant documents are in Florida; and the
MDFL is more convenient than the NDGA for RRW and the Individual RRW
Defendants. In addition, Hampton-Muhamed did not raise her arguments
regarding travel restrictions in the NDGA court, and her amended complaint shows
that she traveled to Florida at least twice for hearings related to the foreclosure.
The NDGA court did not commit a clear abuse of discretion in transferring the
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We review a district court’s decision to transfer a case for “a clear abuse of discretion.”
Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 654 (11th Cir. 1993). We review de novo the
district court’s grant of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim, accepting the allegations in the complaint as true and construing them in the light most
favorable to the plaintiff. Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006).
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case to the MDFL. See Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th
Cir. 2005) (setting forth nine factors to be considered in deciding whether to
transfer a case, including the convenience of the witnesses, the locus of operative
facts, and trial efficiency and the interest of justice).
B. Dismissal for Failure to State a Claim
Hampton-Muhamed has not meaningfully challenged the basis upon which
the district court concluded her amended complaint failed to state a claim under the
FDCPA. To the extent her brief can be liberally construed to do so, the district
court properly dismissed Hampton-Muhamed’s complaint for failure to state a
claim, and leave to amend would have been futile. See Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998) (holding a pro se plaintiff’s pleadings
are to be liberally construed).
Hampton-Muhamed’s complaint is deficient with respect to her allegations
regarding the foreclosure proceedings because, except with respect to § 1692f(6),
foreclosing on a mortgage of real property is not subject to the FDCPA. See 15
U.S.C. § 1692a(6) (including enforcers of security interests within the definition of
“debt collector” only for the purposes of § 1692f(6)); see also Ho v. ReconTrust
Company, NA, 840 F.3d 618, 621–22 (9th Cir. 2016). The rest of Hampton-
Muhamed’s claims were also properly dismissed. Her allegations about activities
that occurred more than one year prior to the time she filed her initial complaint,
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November 5, 2013, are time-barred—including allegations pertaining to the letters
sent to her. See 15 U.S.C. § 1692k(d) (providing one-year statute of limitations for
claims under the FDCPA). As to any claims about the changed locks, abandoned
stickers and resulting property damage on the Florida house, she alleged those acts
were done by a third party, not any of the named defendants. Undisputed facts in
her own complaint show that Nutter & Company did not direct the third party to do
anything except to check the outside of the property. Thus, she failed to allege any
facts that any defendant was responsible for changing the locks or damage to the
property. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
(emphasis added)).
In addition, the district court did not err by failing to sua sponte offer
Hampton-Muhamed the opportunity to amend her complaint. She had already
amended the complaint once and did not seek leave to amend a second time. Cf.
Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (en
banc) (“A district court is not required to grant a plaintiff leave to amend his
complaint sua sponte when the plaintiff, who is represented by counsel, never filed
a motion to amend nor requested leave to amend before the district court.”).
Though she was not represented by counsel, leave to amend claims related to the
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mortgage foreclosure would be futile because Hampton-Muhamed has indicated no
additional facts she would have pled that would have changed the result. See
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to amend a
complaint is futile when the complaint as amended would still be properly
dismissed . . . .”).
Hampton-Muhamed did not appeal dismissal of her claims against the
Individual RRW Defendants, nor did she raise RESPA arguments in her initial
brief. Accordingly, she has abandoned those issues. Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (“Issues not briefed on appeal are considered abandoned,
and we do not address arguments raised for the first time in a reply brief.”).
II. CONCLUSION
For the foregoing reasons, we affirm.
AFFIRMED.
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