Tu Nguyen v. Bank of America, N.A. ( 2018 )

Case: 17-20758 Document: 00514525253 Page: 1 Date Filed: 06/22/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-20758 FILED
Summary Calendar June 22, 2018
Lyle W. Cayce
Clerk
TU NGUYEN,
Plaintiff – Appellant,
v.
BANK OF AMERICA, N.A.,
Defendant – Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-2897
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
This appeal arises as the most recent attempt by Tu Nguyen to prevent
Bank of America, N.A., from foreclosing on certain property. Applying res
judicata, the district court dismissed the case with prejudice after determining
that it was frivolous and repetitive of numerous previous lawsuits. Bank of
America now moves for dismissal of this appeal for lack of subject matter
* Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set forth
in Fifth Circuit Rule 47.5.4.
Case: 17-20758 Document: 00514525253 Page: 2 Date Filed: 06/22/2018
No. 17-20758
jurisdiction, arguing for the first time, that Nguyen has no standing because
he has no ownership or other interest in the property and requests the court
take judicial notice of four exhibits which support a finding of lack of
jurisdiction. 1
“[A] lack of subject matter jurisdiction may be raised at any time, and we
can examine the lack of subject matter jurisdiction for the first time on appeal.”
In re McCloy, 296 F.3d 370, 373 (5th Cir. 2002). Standing is required to show
subject matter jurisdiction is satisfied. Sample v. Morrison, 406 F.3d 310, 312
(5th Cir. 2005). “To establish Article III standing, a plaintiff must show (1) an
‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the
conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed
by a favorable decision.’” Crane v. Johnson, 783 F.3d 244, 251-52 (5th Cir.
2015) (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341
(2014)).
We “may judicially notice a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b) (2).
Previously, we have taken judicial notice of certified copies of a deed in the
public record. Matter of Manges, 29 F.3d 1034, 1042 (5th Cir. 1994). Because
the proposed documents are highly indisputable public records, we take
judicial notice of them. These public records indicate that the property at issue
is wholly owned by Tri Investment Group, LLC, not Nguyen. 2 Even if Nguyen
1The four exhibits include a certified copy of a warranty deed transferring the subject
property from Nguyen to Tri Investment Group, LLC, a certified tax certificate showing Tri
Investment Group is the owner of the subject property, a certified copy of the deed of trust
regarding the subject property, and a civil docket sheet showing Nguyen’s previous litigation.
2In fact, Nguyen does not contest that he transferred the subject property to Tri
Investment Group, LLC in 2007.
2
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No. 17-20758
is the manager of Tri Investment Group, LLC, “[a] member of a limited liability
company or an assignee of a membership interest in a limited liability company
does not have an interest in any specific property of the company.” Tex. Bus.
Orgs. Code § 101.106(b). Therefore, he lacks standing to pursue his appeal.
We GRANT the motion to take judicial notice and DISMISS this appeal
for lack of jurisdiction.
3