Christine Stone v. Bank of New York Mellon, N.A. ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15433
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00081-RWS
CHRISTINE STONE,
Plaintiff-Appellant,
versus
BANK OF NEW YORK MELLON, N.A.,
f.k.a. Bank of New York Trust Company, N.A.,
JPMORGAN CHASE BANK, NA,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
PROMMIS SOLUTIONS, LLC,
LITTON LOAN SERVICING, LP, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 20, 2015)
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Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Christine Stone, proceeding pro se, appeals the district court’s dismissal of
her civil complaint alleging various causes of action stemming from the
foreclosure of her home. She argues that the district court (1) erroneously denied
her motion to remand the case back to state court because federal subject-matter
jurisdiction was lacking and the notice of removal did not comply with the
unanimity requirement of 28 U.S.C. § 1446 (b)(2)(A); (2) improperly dismissed
her complaint for failing to state a claim; and (3) abused its discretion in setting
aside a defendant’s default. Finding no error, we affirm.
Stone filed the present pro se suit in state court in November 2010 against
multiple defendants. On January 13, 2011, Litton Loan Servicing LP; Mortgage
Electronic Registration Systems, Inc.; Bank of New York Mellon; and JPMorgan
Chase Bank, N.A. (“the Removing Defendants”) removed the case to federal court
based on federal-question jurisdiction. The Removing Defendants were served on
December 14, 2010, as was another defendant, Prommis Solutions, LLC
(“Prommis”), which did not join in the notice of removal. Prommis did, however,
move to dismiss Stone’s complaint on January 26, 2011, and opposed remand.
We review de novo the denial of a motion to remand. Moore v. N. Am.
Sports, Inc., 623 F.3d 1325, 1328 (11th Cir. 2010). A district court’s
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determination as to subject-matter jurisdiction is a legal question that we review de
novo. MacGinnitie v. Hobbs Grp., LLC, 420 F.3d 1234, 1239 (11th Cir. 2005).
We review dismissal of a claim pursuant to Federal Rule of Civil Procedure 12 de
novo. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). The Court reviews the
decision to set aside a default for abuse of discretion. Compania Interamericana
Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir.
1996).
Generally, a defendant may remove to federal court a case brought in state
court when, inter alia, the case could have originally been brought in federal court.
See generally 28 U.S.C. §§ 1331; 1441(a). Federal courts are courts of limited
jurisdiction, and they only possess the power authorized by Congress or the
Constitution. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114
S. Ct. 1673, 1676, 128 L. Ed. 391 (1994). Congress has granted federal courts
jurisdiction over cases raising a federal question. Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994).
Federal question jurisdiction refers to “civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim
arises under federal law for purposes of § 1331 when the plaintiff’s complaint
establishes that federal law either creates the cause of action or that the plaintiff’s
right to relief necessarily depends upon the resolution of a substantial question of
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federal law. Smith v. GTE Corp., 236 F.3d 1292, 1310 (11th Cir. 2001) (emphasis
added).
A defendant or defendants wishing to remove an action from a state court to
a federal court must comply with certain procedural requirements. See 28 U.S.C.
§ 1446. When a civil action is removed solely on the basis of federal question
jurisdiction, all defendants who have been properly joined and served must join in
or consent to the removal of the action. Id. § 1446 (b)(2)(A). The requirement that
all defendants consent to and join a notice of removal in order for it to be effective
is referred to as the “unanimity rule.” Bailey v. Janssen Pharmaceutica, Inc., 536
F.3d 1202, 1207 (11th Cir. 2008). Like all rules governing removal, the unanimity
rule must be strictly interpreted and enforced because of the significant federalism
concerns arising in the context of federal removal jurisdiction. Russell Corp. v.
Am. Home Assur. Co., 264 F.3d 1040, 1049 (11th Cir. 2001). However, like the
First Circuit in Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir.
2009), “we nevertheless are not inclined to establish a wooden rule.” A technical
defect related to the unanimity requirement may be cured by opposing a motion to
remand prior to the entry of summary judgment. Id. Although Prommis did not
join the notice of removal, it did oppose remand, and therefore the district court did
not err by refusing to remand for a technical defect related to the unanimity rule.
Furthermore, the district court had federal question subject matter jurisdiction over
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this case because Stone’s complaint contained several causes of action created by
federal law.
The district court dismissed the counts against most defendants for Stone’s
failure to state a claim. 1 Although “a district court must grant a plaintiff at least
one opportunity to amend [her] claims before dismissing them if it appears a more
carefully drafted complaint might state a claim upon which relief can be granted,”
Silva v. Bieluch, 351 F.3d 1045, 1048-49 (11th Cir. 2003) (internal quotations
omitted), the district court need not grant such leave should an amendment be
futile, 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 or be immediately subject to summary judgment for the defendant.” Id.
We conclude that any amendment to Stone’s complaint would be futile. The
limitations period had run on several of the claims; Georgia law creates either no
action or no private right of action for some claims; the Defendants completed a
valid non-judicial foreclosure sale of Stone’s residence; and courts have rejected
the viability of some claims associated with the mortgage lending industry. Any
amendment to the complaint would only lead to the same result: dismissal.
1
To the extent that Stone appeals dismissal of the case against Popular Mortgage
Servicing, Inc., the district court did so for lack of prosecution. Stone fails to address this issue
in her briefs, so this matter is abandoned on appeal. See Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (“While we read briefs filed by pro se litigants liberally, . . . issues not briefed
on appeal by a pro se litigant are deemed abandoned . . . .”). In any event, the district court did
not err in dismissing this case without prejudice to allow Stone “to start over in a new
proceeding.”
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Federal Rule of Civil Procedure 55(c) permits a court to set aside a default
for good cause. Here, the defendant in default filed an affidavit stating that it had
not received a copy of the complaint. The default does not appear to be willful, so
this Court cannot say that the district court abused its discretion in the matter.
AFFIRMED.
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