Maxine McTizic v. Bayerische Motoren Werke Aktiengesellschaft

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 22, 2021
• Docket: 20-11984
• Status: Unpublished

Opinion

USCA11 Case: 20-11984 Date Filed: 01/22/2021 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11984 Non-Argument Calendar ________________________

D.C. Docket No. 8:19-cv-02571-VMC-CPT

MAXINE MCTIZIC, individually and on behalf of herself and all others similarly situated,

Plaintiff - Appellant,

versus

BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT, BMW OF NORTH AMERICA, LLC,

Defendants - Appellees.

________________________

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

(January 22, 2021) USCA11 Case: 20-11984 Date Filed: 01/22/2021 Page: 2 of 5

Before WILSON, MARTIN, and BRANCH, Circuit Judges.

PER CURIAM:

Maxine McTizic, proceeding pro se, appeals the dismissal with prejudice of

her second amended complaint. She argues the district court erred in dismissing

the complaint for lack of subject matter jurisdiction. She also argues the court

abused its discretion in denying her another opportunity to amend. After careful

consideration, we affirm.

I.

As relevant to this appeal, McTizic filed a second amended complaint

alleging that defendants, BMW of North America and Bayerische Motoren Werke

Aktiengesellschaft, knowingly sold her a defective 2012 BMW. The district court

previously dismissed McTizic’s original complaint and first amended complaint

for failing to establish subject matter jurisdiction, among other pleading

deficiencies. The district court then gave McTizic “one final opportunity to

amend.” Upon review of the second amended complaint, the magistrate judge

issued a report and recommendation (“R&R”) that also recommended dismissal for

lack of subject matter jurisdiction. Despite being informed of the time period for

filing objections to the R&R and the consequences for failing to do so, McTizic did

not object to the R&R.

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The district court adopted the R&R and dismissed the second amended

complaint with prejudice. McTizic appealed.

II.

This Court ordinarily reviews de novo a district court’s dismissal of a

complaint for lack of subject matter jurisdiction. Barbour v. Haley, 471 F.3d 1222,

1225 (11th Cir. 2006). However, where a party fails to object to a magistrate

judge’s R&R in accordance with the provisions of 28 U.S.C. § 636(b)(1), that party

“waives the right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions if the party was informed of the time

period for objecting and the consequences on appeal for failing to object.” 11th

Cir. R. 3-1. In the absence of a proper objection, we may review for plain error,

but only “if necessary in the interests of justice.” Id. Additionally, although we

read pro se briefs liberally, issues not briefed are deemed abandoned. Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam). A district court’s

judgment will be affirmed if an appellant fails to challenge each of the court’s

independent, alternative grounds for its ruling. Sapuppo v. Allstate Floridian Ins.

Co., 739 F.3d 678, 680 (11th Cir. 2014).

The denial of leave to amend a complaint is reviewed for an abuse of

discretion. In re Engle Cases, 767 F.3d 1082, 1109 (11th Cir. 2014).

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III.

We conclude McTizic has not properly preserved her challenge to the

dismissal of the second amended complaint. To begin, McTizic did not object to

the R&R, which recommended that the complaint be dismissed with prejudice for

lack of subject matter jurisdiction. Thus, she has waived the right to challenge that

issue on appeal. See 11th Cir. R. 3-1. Moreover, McTizic does not address on

appeal how the complaint establishes subject matter jurisdiction. As a result, she

has abandoned any challenge to the dismissal of the complaint on that basis. See

Timson, 518 F.3d at 874 (“[I]ssues not briefed on appeal by a pro se litigant are

deemed abandoned[.]”). As such, we must affirm the district court’s judgment on

that ground. See Sapuppo, 739 F.3d at 680 (“When an appellant fails to challenge

properly on appeal one of the grounds on which the district court based its

judgment, he is deemed to have abandoned any challenge of that ground, and it

follows that the judgment is due to be affirmed.”).

Finally, we conclude the district court did not abuse its discretion in denying

further leave to amend. The court gave McTizic two opportunities to amend, and

she has not shown how additional amendment would cure the pleading defects it

identified. See In re Engle, 767 F.3d at 1108–09 (“[A] motion for leave to amend

may appropriately be denied . . . where amendment would be futile.” (quotation

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marks omitted)). Therefore, we affirm the dismissal with prejudice of the second

amended complaint.

AFFIRMED.