Roy J. Dixon v. Bank of America, N.A.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 28, 2021
• Docket: 20-11317
• Status: Unpublished

Opinion

USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 1 of 15

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11317 Non-Argument Calendar ________________________

D.C. Docket No. 9:19-cv-80022-KAM

ROY J. DIXON, BLANCHE L. DIXON,

Plaintiffs-Appellants,

versus

GREEN TREE SERVICING, LLC, a.k.a. Ditech Financial LLC, et al.,

Defendants,

BANK OF AMERICA, N.A., as successor by merger to BAC Home Loans Servicing LP,

Defendant-Appellee.

________________________

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

(May 28, 2021) USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 2 of 15

Before WILSON, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Roy J. Dixon and Blanche L. Dixon (the Dixons) appeal pro se from a

district court order denying them leave to amend and dismissing their claims with

prejudice. The Dixons filed a complaint against Bank of America, N.A. (BANA),

and other defendants in federal district court alleging violations of the Fair Debt

Collection Practices Act (FDCPA) and state-law civil theft. The claims stemmed

from BANA’s involvement in a mortgage and foreclosure dispute with the Dixons.

The district court dismissed the complaint with prejudice. The court also denied

leave to file a third amended complaint, which included a new state-law civil theft

claim and an implied damages claim under 42 U.S.C. § 1983. Previously, the

district court had also dismissed a Racketeer Influenced and Corrupt Organizations

Act (RICO) claim for failure to state a claim. The Dixons appealed.

On appeal, the Dixons argue that they properly removed their state

foreclosure action to the district court; that the doctrine of fraudulent concealment

delayed the running of the statute of limitations for their claims; and that they

sufficiently alleged RICO, civil theft, and implied independent damages claims.

BANA filed a motion to strike portions of the Dixons’ appendix to their

reply brief, which the Dixons opposed. After briefing was complete, the Dixons

filed a motion to supplement the record.

2 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 3 of 15

We first consider whether the district court erred by determining that the

Dixons had not initiated a removal case. Then, we consider—with respect to each

remaining claim—whether the district court erred by denying the Dixons’ motions

to amend their complaint as futile and dismissing their case with prejudice. Finally,

we consider the pending motions.

I. Removal

We begin with the question of removal. A defendant may remove any civil

action brought in state court to a federal district court that has original jurisdiction

over the action. 28 U.S.C. § 1441(a). To remove a civil action pending in state

court, a defendant must file a notice of removal in the district court “within 30 days

after the receipt by the defendant, through service or otherwise, of a copy of the

initial pleading setting forth the claim for relief upon which such action or

proceeding is based.” Id. § 1446(a), (b)(1).

If a case was not removable based on the initial pleadings, the defendant

may file a notice of removal “within thirty days after receipt by the defendant, [of a

document] from which it may first be ascertained that the case is . . . or has become

removable.” Id. § 1446(b)(3). The notice of removal must contain “a short and

plain statement of the grounds for removal, together with a copy of all process,

pleadings, and orders served upon such defendant or defendants in such action.” Id.

§ 1446(a). Once the defendant has complied with the requirements for removal, the

3 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 4 of 15

action is removed “and the State court shall proceed no further unless and until the

case is remanded.” Id. § 1446(d).

We review de novo a district court’s removal jurisdiction. McGee v. Sentinel

Offender Servs., LLC, 719 F.3d 1236, 1241 (11th Cir. 2013) (per curiam). The

removing party bears the burden of proving that removal jurisdiction exists. Id.

Here, the district court properly found that this was not a removal case

because the Dixons did not remove a case from state court to federal court. As the

district court explained in its April 29, 2019, order, the Dixons filed an original

action in the district court when they filed a complaint alleging two causes of

action. They did not file a notice of removal, make a short and plain statement of

the grounds for removal, or file a copy of all process, pleadings, and orders served

upon them in the relevant state action. See § 1446(a), (b)(3).

The Dixons attached a “Notice of Removal” to their first amended complaint

in the district court. That so-called Notice of Removal does not change the result

here because the notice was a nullity. Accordingly, there was no removal to

challenge or remand. And even if that notice is considered to be a “removal,” it

would have been subject to remand upon a motion by a defendant because it was

blatantly untimely—it was filed more than three years after the state foreclosure

action began. Therefore, we affirm the district court’s findings on removal.

4 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 5 of 15

II. FDCPA and Civil Theft

The district court dismissed the Dixons’ FDCPA claim on the grounds that

the Dixons did not allege sufficient facts to support their claim and that their

allegations were time barred. The court similarly dismissed the Dixons’ civil theft

claim for failure to allege sufficient facts. The district court also denied as futile the

Dixons’ motion for leave to add a new claim for civil theft against additional

defendants: Fannie Mae, and a law firm and an attorney both involved in the state

court action. The Dixons argue on appeal that the dismissals of the FDCPA and

civil claims and denial of the motion to amend constituted an abuse of discretion

by the district court. Specifically, they contend that they sufficiently alleged

specific facts to support their claims, and, with respect to the FDCPA claim, the

doctrines of fraudulent concealment and equitable tolling tolled the statute of

limitations.

We review de novo a district court’s grant of a motion to dismiss for failure

to state a claim. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016).

We accept the allegations in the complaint as true and construe them in the light

most favorable to the plaintiff. Id. To withstand a motion to dismiss, a plaintiff

must plead facts that are sufficient to state a claim that is “plausible on its face.” Id.

A claim is plausible “when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

5 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 6 of 15

alleged.” Id. A plaintiff must allege “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Id. Thus,

“conclusory allegations, unwarranted factual deductions or legal conclusions

masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc.,

326 F.3d 1183, 1185 (11th Cir. 2003).

We generally review for abuse of discretion a district court’s decision to

deny leave to amend, but we review de novo the denial of leave to amend on

grounds of futility. Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 864

(11th Cir. 2017). “An amendment is considered futile when the claim, as amended,

would still be subject to dismissal.” Id.

To state a viable claim for civil theft under Florida law, a plaintiff must

allege an injury resulting from the defendant’s violation of Florida’s criminal theft

statute, Fla. Stat. § 812.014. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270

(11th Cir. 2009). Specifically, a plaintiff must allege facts plausibly showing that

the defendants knowingly obtained or used, or endeavored to obtain or use, the

plaintiff’s property with “felonious intent” either temporarily or permanently to

(1) deprive the plaintiff of its right to or a benefit from the property or

(2) appropriate the property to the defendant’s own use or to the use of any person

not entitled to the property. Id.

6 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 7 of 15

An appellant abandons issues that are not “plainly and prominently” raised

in his initial brief. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th

Cir. 2014). Although briefs filed by pro se litigants are liberally construed, issues

raised by these litigants for the first time in a reply brief are deemed abandoned.

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam). Thus, when a

party makes only passing references to an issue in the initial brief and does not

devote a discrete section of the brief to the argument of that issue, the party

has abandoned that issue on appeal. United States v. Jernigan, 341 F.3d 1273,

1283 n.8 (11th Cir. 2003). We generally will not consider an issue not raised in the

district court. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.

2004).

When a district court’s judgment is based upon multiple, independent

grounds, an appellant must convince us that each enumerated ground for the

judgment against him is incorrect. Sapuppo, 739 F.3d at 680. If an appellant does

not properly challenge one of the grounds on which the district court based its

judgment, the appellant is deemed to have abandoned any challenge to that ground,

and we affirm the district court’s judgment. Id.

Here, the Dixons abandoned any argument that they properly stated their

FDCPA claim by not raising the issue on appeal. See Timson, 518 F.3d at 874.

Because this finding was an independent ground for the district court’s decision to

7 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 8 of 15

dismiss this claim, we affirm the dismissal without reaching the question of

whether the Dixons’ FDCPA claim was time barred. See Sapuppo, 739 F.3d at 680.

The Dixons also abandoned any argument that the district court erred in dismissing

their civil theft claim against BANA by not plainly and prominently presenting it

in their initial brief.1 See id. at 681. The Dixons made only conclusory, passing

references to this issue in their discussion of a separate issue; they did not devote a

discrete section of the brief to their argument of this issue. Jernigan, 341 F.3d at

1283 n.8.

As for the Dixons’ motion for leave to add a new claim for civil theft against

Fannie Mae, a law firm, and an attorney, the district court properly denied the

motion as futile. The Dixons did not assert sufficient facts to plausibly support this

claim, even after multiple attempts and discrete instructions from the district court

on how to generally plead a civil theft claim. See Hunt, 814 F.3d at 1221. Rather,

the Dixons recited the elements of a civil theft claim with only conclusory

allegations to support their claim. See id.; Davila, 326 F.3d at 1185. Accordingly,

we affirm the district court’s dismissal of the Dixons’ FDCPA and civil theft

1 In their opening brief, the Dixons argue that their “Final Verified Third Amended Complaint” sufficiently alleges a civil theft claim and that “[t]he District Court exercised an abuse of discretion in dismissing the DIXONS Civil Theft claim with prejudice.” While they provide arguments in support of allowing the third amended complaint, that complaint does not bring a civil theft claim against BANA, and they provide no other discussion or argument of their civil theft claim against BANA.

8 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 9 of 15

claims and the court’s denial, as futile, of the Dixons’ motion for leave to amend

their complaint to add a new civil theft claim.

III. RICO

Next we turn to the district court’s denial of the Dixons’ motion for leave to

amend their RICO claim as futile. The Dixons argue that they sufficiently pled a

RICO claim. They argue that BANA is an enterprise that is separate from its

codefendants and that the defendants committed extortion, mail fraud, and wire

fraud by selling the Dixons’ home and appropriating the funds to Fannie Mae. The

Dixons also argue that they justifiably relied on the defendants’ unlawful acts of

extortion and that their injury was caused by the defendants’ commission of the

predicate acts of extortion, mail fraud, and wire fraud. Finally, the Dixons argue

that the district court should have allowed their RICO claim to proceed under the

doctrine of fraudulent concealment.

RICO provides for civil and criminal liability against any person who

conducts the affairs of an enterprise “through a pattern of racketeering activity or

collection of unlawful debt.” See 18 U.S.C. §§ 1962(c), 1964. “A RICO enterprise

exists where a group of persons associates, formally or informally, with the

purpose of conducting illegal activity.” Jackson v. BellSouth Telecomms., 372 F.3d

1250, 1264 (11th Cir. 2004) (internal quotation marks omitted). However, this

9 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 10 of 15

enterprise must be distinct from any person named in a RICO claim. United States

v. Goldin Indus., Inc., 219 F.3d 1268, 1271 (11th Cir. 2000) (en banc).

To establish a pattern of racketeering activity, plaintiffs must show that:

“(1) the defendants committed two or more predicate acts within a ten-year time

span; (2) the predicate acts were related to one another; and (3) the predicate acts

demonstrated criminal conduct of a continuing nature.” Jackson, 372 F.3d at 1264

(emphasis omitted). Thus, the plaintiffs “must show that the racketeering

predicates are related, and that they amount to or pose a threat of continued

criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989).

“Racketeering activity” includes any act which is indictable under the

exhaustive list of criminal offenses outlined in 18 U.S.C. § 1961(1). This list of

predicate acts includes extortion, as defined in 18 U.S.C. § 1951; wire fraud, as

defined in 18 U.S.C. § 1343; and mail fraud, as defined in 18 U.S.C. § 1341. Id.

§ 1961(1). Under RICO, an “unlawful debt” is defined as a debt incurred in illegal

gambling activity or a debt that charges a usurious interest rate. Id. § 1961(6).

Finally, Federal Rule of Civil Procedure 9(b) provides that a party alleging

fraud “must state with particularity the circumstances constituting fraud” but that

“[m]alice, intent, knowledge, and other conditions of a person’s mind may be

alleged generally.” Fed. R. Civ. P. 9(b). We have explained:

Rule 9(b) is satisfied if the complaint sets forth (1) precisely what statements were made in what documents or oral representations or

10 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 11 of 15

what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.

Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008) (internal

quotation marks omitted).

Here, the district court properly denied the Dixons’ motion for leave to

amend their civil RICO claim as futile. The Dixons did not allege sufficient facts to

support a plausible finding that there was a RICO enterprise, a pattern of

racketeering activity, or the collection of an unlawful debt. The Dixons alleged

only conclusory statements that the defendants associated with BANA in

furtherance of an illegal scheme; that is not sufficient to show the existence of a

RICO enterprise. See Davila, 326 F.3d at 1185. Their general allegations of mail

fraud and wire fraud also do not satisfy the heightened Rule 9(b) pleading

requirements. See Mizzaro, 544 F.3d at 1237. Additionally, BANA could not be a

RICO enterprise because it was a party named in the RICO claim. See Goldin

Indus., Inc., 219 F.3d at 1271.

Even if they amended their complaint, the Dixons’ RICO claim would still

be subject to dismissal because they alleged only the loss of their own home—they

did not plausibly allege criminal conduct of a continuing nature. See Jackson, 372

11 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 12 of 15

F.3d at 1264. Accordingly, we affirm the district court’s denial of the Dixons’

motion for leave to amend their civil RICO claim as futile.

IV. Implied Damages

The district court also denied the Dixons’ motion for leave to add an implied

independent damages claim under 42 U.S.C. § 1983 as futile. On appeal, the

Dixons argue that they sufficiently alleged the claim against the attorneys involved

in their state foreclosure action.

To state a claim under § 1983, a plaintiff must allege sufficient facts to

establish that he or she was “deprived of a right secured by the Constitution or laws

of the United States, and that the alleged deprivation was committed under color of

state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). A

private party may be considered a state actor for purposes of § 1983 only in “rare

circumstances.” Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir.

2001). “[O]ne who has obtained a state court order or judgment is not engaged in

state action merely because it used the state court legal process.” Cobb v. Ga.

Power Co., 757 F.2d 1248, 1251 (11th Cir. 1985).

Here, to the extent that the Dixons sought to assert an independent claim for

damages under § 1983, the district court properly denied them leave to add the

claim. The conduct of the attorneys involved in the Dixons’ state foreclosure action

in obtaining a state-law judgment against the Dixons does not constitute state

12 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 13 of 15

action, and the Dixons did not sufficiently assert that these attorneys were acting

under the color of state law. Accordingly, we affirm the district court’s denial of

the Dixons’ motion for leave to add an implied independent damages claim as

futile.

V. Motions

Finally, we address the pending motions in this case.

A. Motion to Strike

BANA moved to strike portions of the Dixons’ reply brief appendix,

specifically Appendices C, D, E, and G. The Dixons object only to the striking of

Appendix G, which contains the transcript of a district court hearing in which the

parties argued various motions, including the Dixons’ motion for leave to file a

second amended complaint. BANA argues that we should strike Appendix G

because the Dixons never presented the transcript to the district court or made it

part of the record, nor did they obtain leave from this Court before filing the

document.

Appellants have the duty to order any necessary transcripts or to file a

certificate stating that no transcript will be ordered within 14 days after filing the

notice of appeal. Fed. R. App. P. 10(b)(1); 11th Cir. R. 10-1. “We rarely

supplement the record to include material that was not before the district court, but

we have the equitable power to do so if it is in the interests of justice.” Schwartz v.

13 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 14 of 15

Millon Air, Inc., 341 F.3d 1220, 1225 n.4 (11th Cir. 2003). We have refused to

consider supplemental material provided by a litigant who did not first request

leave of court or move to supplement the record. See Ross v. Kemp, 785 F.2d 1467,

1474–75 (11th Cir. 1986).

We grant BANA’s motion to strike the appendices. The Dixons certified that

no transcripts would be ordered for their appeal and did not seek leave or move to

supplement the record before filing supplemental materials with their reply brief.

See Fed. R. App. P. 10(b)(1); 11th Cir. R. 10-1; see also Ross, 785 F.2d at 1475.

Even if this transcript were properly submitted, it would not be dispositive because

it does not show that the district court erred in denying the Dixons’ motion to

quash the state foreclosure proceedings. Accordingly, we grant BANA’s motion to

strike Appendices C, D, E, and G to the Dixons’ reply brief.

B. Motion to Supplement

On February 22, 2021, the Dixons filed “Appellants’ Motion Seeking Leave

to Supplement the Record on Appeal with Appellants’ March 27, 2019 Motion

Seeking to Quash and/or an Injunction Against the State Court from Continuing

with the Foreclosure Proceedings Without Jurisdiction.” The filing attaches as an

exhibit the motion to quash at issue, which appears on the district court docket at

Docket Entry 36. The Dixons do not provide any basis for the request.

14 USCA11 Case: 20-11317 Date Filed: 05/28/2021 Page: 15 of 15

On February 26, 2021, BANA filed a response to the Dixons’ motion stating

that it is “facially deficient” in that it articulates no ground or legal basis for

supplementing the record. BANA also states that the document the Dixons seek to

add to the record already is part of the record on appeal.

BANA is correct that the document the Dixons seek to add to the record

already is part of the record on appeal. Thus, it is unnecessary to supplement the

record with the document. Additionally, while the motion’s title suggests that the

Dixons also request “an Injunction Against the State Court from Continuing with

the Foreclosure Proceedings Without Jurisdiction,” the body of the motion includes

no such request and offers no support in favor of such a request. Thus, the Dixons

have not shown that an injunction is warranted. See Fed. R. App. P. 27(a)(2)(A)

(“A motion must state with particularity the grounds for the motion, the relief

sought, and the legal argument necessary to support it.”). Accordingly, we deny the

motion.

AFFIRMED IN PART, GRANTED IN PART, DENIED IN PART.