Morris J. Mays v. Chase Manhattan Mortgage

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12842 May 31, 2006
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 04-20227-CV-JAL
MORRIS J. MAYS,
Plaintiff-Appellant,
versus
CHASE MANHATTAN MORTGAGE CORPORATION,
as servicing agent for Citibank, N.A. as Trustee a foreign
profit corporation doing business in Florida,
CITIBANK, N.A.,
as trustee (a foreign profit corporation doing business in Florida),
ZC STERLING INSURANCE AGENCY, INC.,
a foreign corporation doing business in Florida,
EMPIRE INDEMNITY INSURANCE COMPANY,
a foreign corporation doing business in Florida,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 31, 2006)
Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Morris J. Mays appeals pro se the district court’s order granting the motions
to dismiss his amended complaint, which asserted claims related to bankruptcy
and insurance fraud based on the alleged improper handling by Defendants (Chase
Manhattan Mortgage Corp., Citibank, N.A., ZC Sterling Insurance Agency, Inc.,
and Empire Indemnity Insurance Co.) of an insurance claim on his dwelling,
which sustained tornado damage while Mays was a debtor in bankruptcy
proceedings. No reversible error has been shown; we affirm.
We first review, de novo, the district court’s dismissal for lack of subject
matter jurisdiction. See Justice Cometh, Ltd. v. Lambert, 426 F.3d 1342, 1343
(11th Cir. 2005). The district court observed that Mays’s amended complaint
alleged that the events forming the basis of his causes of action occurred during
the course of his bankruptcy proceedings. The district court also cited the local
district court rules, which referred to the bankruptcy court all cases arising under
Title 11 of the U.S. Code. See S.D. Fla. L.R. 87.2. The district court noted that
this Court had not decided the issue of whether a district court has subject matter
jurisdiction over a complaint, filed in district court, but arising out of a bankruptcy
proceeding and referred by local rule to bankruptcy court. Relying on Eastern
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Equip. & Servs. Corp. v. Factory Point Nat’l Bank, 236 F.3d 117 (2d Cir. 2001),
the district court reasoned that it lacked jurisdiction over matters arising from the
bankruptcy proceedings because the bankruptcy court had exclusive jurisdiction
over those matters.
After the district court made its determination about subject matter
jurisdiction, this Court decided Justice Cometh, which disagreed with Eastern
Equip. and wrote that, although district courts may refer and all Title 11
proceedings to bankruptcy court, district courts have original (but not exclusive)
jurisdiction over all claims arising under Title 11, pursuant to 28 U.S.C. § 1334.
See Justice Cometh, 426 F.3d at 1343 & n.2. Thus, the district court’s dismissal of
Mays’s complaint for lack of subject matter jurisdiction was in error.
The district court, however, presented an alternate basis for dismissal:
Mays’s complaint failed to state a claim on which relief could be granted. The
district court made specific determinations on why, for each count listed in Mays’s
complaint, Mays had failed to state a claim. But Mays does not address the
propriety of the dismissal on this alternate ground. Instead, Mays directs most of
the argument in his appellate brief to whether the district court should have
allowed him to complete jurisdictional discovery before dismissing the complaint
for lack of subject matter jurisdiction. Mays mentions that the doctrine of res
3
judicata should not bar his action. The district court, however, did not rely on res
judicata in analyzing whether Mays had stated a claim.
In other words, Mays has failed to present argument about the district
court’s dismissal for failure to state a claim. Even though we are mindful of the
liberal construction we afford to pro se pleadings, Mays has abandoned a
challenge to the district court’s dismissal for failure to state a claim. See Denney
v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001) (stating that issues that
are not briefed on appeal are considered abandoned); Irwin v. Hawk, 40 F.3d 347& n.1 (11th Cir. 1994) (noting that pro se litigant abandons issue by not
challenging it on appeal).*
AFFIRMED.
*
We, nonetheless, discern no error in the district court’s determination that Mays had failed to
state a claim in his amended complaint.
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