Gerard Carroll v. Bank of America, NA

Case: 13-11461 Date Filed: 10/31/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11461
Non-Argument Calendar
________________________
D. C. Docket No. 1:12-cv-02506-RWS
GERARD CARROLL,
DAPHNE CARROLL,
Plaintiffs-Appellants,
versus
BANK OF AMERICA, NA,
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
MCCALLA RAYMER, LLC,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 31, 2013)
Before TJOFLAT, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Case: 13-11461 Date Filed: 10/31/2013 Page: 2 of 4
Bank of America, NA; Federal National Mortgage Association; and McCalla
Raymer, LLC (Appellees); moved to dismiss the Complaint filed by Gerard and
Daphne Carroll. The district court granted the motions, and dismissed the
Carrolls’ Complaint with prejudice pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief could be granted. The
Carrolls appeal, raising several issues. After review, we affirm.
Remand to State Court
The Carrolls first contend the district court should have remanded their case
to state court because there was not complete diversity between the parties.1 This
case was not removed from state court based on diversity jurisdiction, however.
Rather, this case was removed based on federal question jurisdiction, as the
Carrolls’ Complaint set forth a cause of action for a violation of 15 U.S.C. § 1692e,
a provision of the Fair Debt Collections Practices Act (FDCPA). See 28 U.S.C.
§ 1331. Further, the district court exercised supplemental jurisdiction under 28
U.S.C. § 1367(a) over the Carrolls’ state law claims. See Behlen v. Merrill Lynch,
1
We note the Carrolls did not mention the March 7, 2013, Order denying their motion to
remand in their Notice of Appeal. Rather, the Notice of Appeal specifies they are appealing the
March 28, 2013, Order granting the Appellees’ motions to dismiss. While, “[t]he general rule in
this circuit is that an appellate court has jurisdiction to review only those judgments, orders or
portions thereof which are specified in an appellant’s notice of appeal,” we afford a more “liberal
construction of notices of appeal when (1) unnoticed claims or issues are inextricably intertwined
with noticed ones and (2) the adverse party is not prejudiced.” Hill v. BellSouth Telecomm., Inc.,
364 F.3d 1308, 1313 (11th Cir. 2004) (quotation omitted). Because the question of whether the
district court had jurisdiction over the Carrolls’ claims is inextricably intertwined with whether
the district court erred in dismissing their Complaint, we will review the denial of the motion to
remand.
2
Case: 13-11461 Date Filed: 10/31/2013 Page: 3 of 4
311 F.3d 1087, 1095 (11th Cir. 2002). As the district court had federal question
and supplemental jurisdiction over the Carrolls’ complaint, it did not err2 in
denying the Carrolls’ motion to remand.
Wrongful Foreclosure
The Carrolls contend the district court erred in granting Appellees’ motions
to dismiss their wrongful foreclosure claim. “We review the district court’s grant
of defendants’ motion to dismiss for failure to state a claim de novo,” accepting
“all factual allegations in the complaint as true and constru[ing] them in the light
most favorable to the plaintiff.” 3 World Holdings, LLC v. Fed. Republic of
Germany, 701 F.3d 641, 649 (11th Cir. 2012) (quotation omitted).
We agree with the district court that the Carrolls’ Complaint failed to plead
facts establishing a duty owed to them by Appellees, an essential element of the
tort of wrongful foreclosure. See Heritage Creek Dev. Corp. v. Colonial Bank, 601
S.E.2d 842, 844 (Ga. Ct. App. 2004) (explaining the elements of wrongful
foreclosure as (1) a legal duty owed by the foreclosing party; (2) a breach of that
duty; (3) a causal connection between the breach of that duty and the plaintiff’s
injury; and (4) damages). Additionally, even if the Carrolls had alleged a duty
owed by Appellees, they cannot show a causal connection between a breach of that
2
We review the district court’s denial of a motion to remand de novo. Henderson v.
Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006).
3
We reject the Carrolls’ contention that the district court failed to construe the pleadings
in the light most favorable to the non-moving party.
3
Case: 13-11461 Date Filed: 10/31/2013 Page: 4 of 4
duty and their alleged injury. Due to their admitted default on their mortgage, the
Carrolls are unable to show their injury is due to Appellees’ actions and not their
own acts and omissions.
Dismissal with Prejudice
The Carrolls assert the district court showed bias and prejudice by
dismissing their Complaint with prejudice instead of allowing them to file an
amendment. The Carrolls, however, never filed a motion to amend their
Complaint or expressly sought leave to amend before the district court. We have
held that 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.” Wagner
v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).
Conclusion
The district court did not err in denying the Carrolls’ motion to remand and
in dismissing the Carrolls’ Complaint4 with prejudice. Thus, we affirm the district
court.
AFFIRMED.
4
The Carrolls’ brief on appeal focuses solely on their wrongful foreclosure claim, and
does not allege error in the district court’s dismissal of their FDCPA, intentional infliction of
emotional distress, declaratory judgment, or attorney’s fees claims. Thus, those issues are
abandoned. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
4