Elsayed A. Elnenaey v. Fidelity Management Trust Company, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 7, 2020
• Docket: 19-13253
• Status: Unpublished

Opinion

USCA11 Case: 19-13253 Date Filed: 10/07/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13253 Non-Argument Calendar ________________________

D.C. Docket No. 8:19-cv-00349-TPB-TGW

ELSAYED A. ELNENAEY,

Plaintiff-Appellant,

versus

FIDELITY MANAGEMENT TRUST COMPANY, INC., FIDELITY INVESTMENTS INSTITUTIONAL SERVICES COMPANY, INC., FMR LLC, MERVAT OSMAN, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(October 7, 2020) USCA11 Case: 19-13253 Date Filed: 10/07/2020 Page: 2 of 6

Before GRANT, LUCK and BLACK, Circuit Judges.

PER CURIAM:

Elsayed Elnenaey, a plaintiff proceeding pro se, appeals the district court’s

order adopting the magistrate judge’s report and recommendation dismissing his

first-amended complaint brought under 29 U.S.C. § 1132 and 18 U.S.C. §§ 1961-

68. The district court dismissed Elnenaey’s claims against Mervat Osman for lack

of jurisdiction, and dismissed with leave to amend the complaint against the

corporate defendants. Elnenaey asserts the district court erred when it dismissed

his complaint against Osman by applying the Rooker-Feldman doctrine1 because

he did not attempt to invalidate the Nevada divorce decree, but instead sought to

recover damages stemming from fraud before, during, and after the divorce

proceeding. Additionally, he purports to raise issues regarding the district court’s

dismissal of his claims against the corporate defendants, the denial of his ex parte

motion for a preliminary injunction, the necessity of proceeding against all

defendants in one action, whether local counsel should comply with a subpoena to

test Osman’s forum contacts, and our denial of his motion to proceed in forma

pauperis. Lastly, he contends we should appoint him counsel under the Non-

1 Established in Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923) and D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983). 2 USCA11 Case: 19-13253 Date Filed: 10/07/2020 Page: 3 of 6

Criminal Justice Act Counsel Appointments provision. After review, we affirm the

district court.

I. DISCUSSION

A. Rooker-Feldman

Application of Rooker-Feldman is a threshold jurisdictional matter. Brown

v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1330 (11th Cir. 2010). We review

the district court’s application of the Rooker-Feldman doctrine de novo. Lozman v.

City of Riviera Beach, Fla., 713 F.3d 1066, 1069-70 (11th Cir. 2013). However,

we review a district court’s findings of jurisdictional fact for clear error.

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279-80 (11th

Cir. 2009).

Alone among the federal courts, only the Supreme Court may exercise

appellate authority to reverse or modify a state-court judgment. Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284-85 (2005). Accordingly,

under the Rooker-Feldman doctrine, federal district courts lack jurisdiction to

review the final judgment of a state court. Lozman, 713 F.3d at 1072. However, in

delineating the boundaries of Rooker-Feldman, the Supreme Court has clarified the

doctrine is narrow in scope, and only applies to cases “brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district court review and

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rejection of those judgments.” Exxon Mobil Corp., 544 U.S. at 284; see also

Lozman, 713 F.3d at 1072 (“We determine the applicability of Rooker-Feldman by

adhering to [this] language in Exxon Mobil . . . .” (quotations omitted)).

The district court did not err in dismissing Elnenaey’s claims against Osman

because they are barred by the Rooker-Feldman doctrine. If Elnenaey were to

succeed in his claims it would effectively nullify the state court judgment because

he would be awarded, at a minimum, the full amount Osman was awarded of his

pension benefits. He seeks damages in excess of the amount she was awarded, but

that does not change the fact that any award based upon her allegedly improper

receipt of his pension benefits would render the portion of the divorce decree

regarding the pension effectively void. His claim can only succeed if he proves the

Nevada court erred in awarding Osman the pension benefits. The district court did

not err in dismissing the action due to lack of subject-matter jurisdiction. See id.

B. Issues Waived on Appeal

We do not review an issue that a party does not prominently raise on appeal.

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). A

passing reference to the issue in the party’s brief is not enough, and the failure to

make arguments and cite authorities in support of the issue waives it. Miccosukee

Tribe of Indians of Fla. v. Cypress, 814 F.3d 1202, 1211 (11th Cir. 2015). We

apply this waiver standard against pro se parties. Id. Also, we deem arguments

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raised for the first time on appeal waived. See Walker v. Jones, 10 F.3d 1569,

1572 (11th Cir. 1994).

On appeal, Elnenaey did not provide arguments as to why the dismissal of

his claims against the corporate defendants was improper. 2 Additionally, he

offered no arguments as to why—absent a motion for reconsideration—this Court

should reconsider its denial of his motion to proceed in forma pauperis. Elnenaey

did not argue why it was an error for the court to deny his ex parte motion for

preliminary injunction. Moreover, his argument regarding the claims being

inseparable making it necessary to proceed against all defendants in one action did

not provide any legal authority or analysis. Because these issues purportedly

raised on appeal were not argued more than in passing reference and without

citation to authority, they have been waived on appeal. See Sapuppo, 739 F.3d at

680. Lastly, Elnenaey did not raise the local counsel argument before the district

court, so it has also been waived. See Walker, 10 F.3d at 1572.

2 We note the district court dismissed the claims against the corporate defendants without prejudice with leave to amend by August 30, 2019. Elnenaey elected to pursue an appeal on August 21, 2019, before the time to amend expired, thus waiving his right to amend the complaint. See Garfield v. NDC Health Corp., 466 F.3d 1255, 1260-61 (11th Cir. 2006) (explaining when a complaint is involuntarily dismissed without prejudice with leave to amend, and the plaintiff elects to pursue an appeal before the time to amend expires rather than amend the complaint, the plaintiff waives his right to amend, thereby rendering the dismissal order final and appealable), Van Poyck v. Singletary, 11 F.3d 146, 148 (11th Cir. 1994) (same). 5 USCA11 Case: 19-13253 Date Filed: 10/07/2020 Page: 6 of 6

II. CONCLUSION

The district court did not err in dismissing Elnenaey’s claims against Osman

because they were barred by the Rooker-Feldman doctrine. Further, the other

issues Elnenaey purports to raise on appeal have been waived due to lack of

argument and authority or his failure to raise them before the district court. Lastly,

as we are affirming the district court, we need not consider appointing Elnenaey

counsel for future proceedings.

AFFIRMED.