James A. Birdette v. Saxon Mortgage

Case: 11-15273 Date Filed: 12/20/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15273
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-02157-WSD
JAMES A. BIRDETTE,
LINDA A. BIRDETTE,
llllllllllllllllllllllllllllllllllllllllPlaintiffs-Appellants,
versus
SAXON MORTGAGE,
BANK OF NEW YORK, MELLON,
AMERICAN NEIGHBORHOOD HOUSING FOUNDATION,
DOES 1 through 100,
Inclusive,
llllllllllllllllllllllllllllllllllllllllDefendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 20, 2012)
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Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Appellants Linda and James Birdette, proceeding pro se, appeal the district
court’s order dismissing their wrongful-foreclosure complaint with prejudice for
failure to comply with a lawful order of the court under Fed.R.Civ.P. 41(b). The
Birdettes filed an original complaint in Georgia state court listing nine causes of
action and apparently adding two additional claims in several subsequent amended
complaints before the case was removed to the district court. A magistrate judge
found that the complaint was a “shotgun” pleading and specifically instructed the
Birdettes to file a repleaded complaint that provided a brief introductory overview
of the case, relevant facts and dates for each claim asserted as to each defendant,
and attach any relevant documents. The magistrate judge also warned the
Birdettes that a failure to timely comply with its order would result in the
magistrate judge recommending that the complaint be dismissed for failure to
comply with a lawful court order. The Birdettes filed a repleaded complaint that
did not fully comply with the magistrate judge’s order, and the district court
adopted the magistrate judge’s subsequent recommendation to dismiss the
complaint with prejudice for failure to comply with a lawful court order. On
appeal, the Birdettes vaguely state that their pleadings “should not be considered
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shotgun pleadings. Factual allegations presented comprises the [c]omplaint.”
They further assert that there were “[l]egal [i]ssues of [e]rrors,” and that “[c]ause
exists for each [c]omplaint.”
“We review for abuse of discretion a district court’s dismissal for failure to
comply with the rules of court.” Betty K Agencies, Ltd. v. M/V MONADA,
432 F.3d 1333, 1337 (11th Cir. 2005).
Pro se pleadings are held to a less strict standard than pleadings filed by
lawyers, and are construed liberally as a result. Trawinski v. United Techs., 313
F.3d 1295, 1297 (11th Cir. 2002). However, issues not briefed on appeal by a pro
se litigant are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008). Issues raised only in passing, without supporting argument or citation,
are deemed abandoned. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir.
1998). An amended pleading supersedes the former pleading, such that the
original pleading is abandoned by the amendment, and is no longer part of the
pleader’s claims. See Dresdner Bank AG v. M/V OLYMPIA VOYAGER, 463 F.3d
1210, 1215 (11th Cir. 2006). Although courts liberally construe pro se pleadings,
they are not required to “rewrite an otherwise deficient pleading in order to sustain
an action.” GJR Inv., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th
Cir. 1998), overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.
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Ct. 1937, 173 L. Ed. 2d 868 (2009). Pro se litigants are still required to conform
to procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).
Under Rule 41(b), a court has authority to dismiss actions for, inter alia,
failure to obey court orders. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.
1985). Dismissal is warranted under Rule 41(b) where there is a “clear record of
delay or willful contempt and a finding that lesser sanctions would not suffice.”
Id. (internal quotation marks omitted). “Dismissal of a case with prejudice is
considered a sanction of last resort, applicable only in extreme circumstances.” Id.Unless a dismissal order states otherwise, a dismissal for failure to comply with a
court order is a dismissal with prejudice. Fed.R.Civ.P. 41(b). “Mere negligence
or confusion is not sufficient to justify a finding of delay or willful misconduct.”
Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006). “While dismissal is an
extraordinary remedy, dismissal upon disregard of an order, especially where the
litigant has been forewarned, generally is not an abuse of discretion.” Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989). In Moon, we stated that the record
supported the district court’s implicit finding that Moon had been “repeatedly and
stubbornly defiant” and indicated no willingness to comply with court orders. Id.
at 839. Accordingly, we held that the district court did not abuse its discretion in
dismissing the case. Id.4
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Generally, where a more carefully drafted complaint might state a claim, a
plaintiff must be provided with at least one opportunity to amend before the court
dismisses with prejudice. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)
(quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir 1991)). A court need not
allow an amendment where (1) there has been undue delay or repeated failure to
cure deficiencies in previously allowed amendments; (2) where allowing
amendment would cause undue prejudice to the opposing party; or (3) where
amendment would be futile. Id.Georgia law requires a plaintiff asserting a claim of wrongful foreclosure to
establish (1) a legal duty owed to the plaintiff by the foreclosing party, (2) a
breach of that duty, (3) a causal connection between the breach of that duty and
the injury sustained, and (4) damages. DeGolyer v. Green Tree Servicing, LLC,
662 S.E.2d 141, 147 (Ga. Ct. App. 2008). Georgia law recognizes actions for
breach of contract where there is (1) a breach, and (2) resultant damages to the
party who has the right to complain about the contract being broken. Budget
Rent-a-Car of Atlanta, Inc. v. Webb, 469 S.E.2d 712, 713 (Ga. Ct. App. 1996)
(citation omitted).
Construing their statements on appeal liberally, it is conceivable that the
Birdettes are attempting to argue that their amended complaint included sufficient
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factual allegations to state a claim, and that they did, in fact, comply with the
court’s order. However, the Birdettes raise those statements only in passing, and
they provide absolutely no argument or citation of authority in support of any
claim. Accordingly, they have waived any cognizable issue on appeal by failing to
raise any argument alleging that the district court’s order dismissing their
complaint pursuant to Rule 41(b) was erroneous.
Even assuming that the issue is fairly presented on appeal, the Birdettes
filed numerous amended complaints in both state court and the district court, were
specifically informed as to how to replead their complaint to state a claim, and
warned that a failure to comply with the court’s order would result in dismissal,
and they still failed to cure the deficiencies. As such, we conclude that dismissal
with prejudice under Rule 41(b) was not an abuse of discretion in this case.
Accordingly, we affirm the judgment of dismissal.
AFFIRMED.
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