Robert McCurdy v. Mortgage Elec Regstn Sys , 605 F. App'x 455 ( 2015 )

Case: 14-51136 Document: 00513068756 Page: 1 Date Filed: 06/05/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-51136
FILED
June 5, 2015
Summary Calendar
Lyle W. Cayce
Clerk
ROBERT L. MCCURDY; NANCY L. MCCURDY,
Plaintiffs - Appellants
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED;
BANK OF AMERICA, N.A., as Successor by Merger to LaSalle Bank, N.A., as
Trustee for the Certificate Holders of the MLMI Trust, Mortgage Loan Asset-
Backed Certificates, Series 2007-HE3; U.S. BANK, N.A., as Successor Trustee
to Bank of America, N.A., as successor by Merger to LaSalle Bank, N.A., as
Trustee for the Certificate Holders of the MLMI Trust, Mortgage Loan Asset-
Backed Certificates, Series 2007-HE3, by Bank of America, N.A. as attorney in
fact,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
U.S.D.C. No. 1:14-CV-486
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-51136 Document: 00513068756 Page: 2 Date Filed: 06/05/2015
No. 14-51136
Plaintiffs appeal the district court’s dismissal of their claim for
declaratory relief which contended that the statute of limitations in Texas Civil
Practice and Remedies Code § 16.035 rendered a prior foreclosure notice
nugatory (the “§ 16.035 Claim”). Adopting the recommendations of the
magistrate judge, the district court dismissed all of Plaintiffs’ declaratory
judgment claims, in part because “a request for declaratory relief is simply a
remedy and not a free-standing claim.” That principle is accurate, insofar as
pleading for declaratory relief under state law through the federal Declaratory
Judgment Act (“DJA”), 28 U.S.C. § 2201, does not confer federal question
jurisdiction absent a well-pleaded federal claim. 1 But when a federal court
possesses diversity jurisdiction, it may consider a state-law declaratory
judgment claim, so long as that claim presents a justiciable controversy. 2
Defendants pleaded diversity jurisdiction in the notice of removal; on its
face, then, this case does not rest on the DJA as a basis for jurisdiction over
the § 16.035 Claim. The district court never addressed whether it possessed
diversity jurisdiction or the merits of the § 16.035 Claim. It also did not assess
whether the § 16.035 Claim presents a justiciable controversy. From the
record before us, we cannot assess these issues in the first instance. Thus, we
conclude that these issues are best addressed in the first instance by the
district court. Plaintiffs did not address the dismissal of their other claims, so
we deem those matters abandoned. See Yohey v. Collins, 985 F.2d 222, 224–
1See Volvo Trucks N. Am., Inc., v. Crescent Ford Truck Sales, Inc., 666 F.3d 932, 937–
38 (5th Cir. 2012).
2See generally Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 239–
44 (1937); cf. Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746,
752 & n.3, 756–57 (5th Cir. 1996); Burney v. Citigroup Global Markets Realty Corp., 244
S.W.3d 900 (Tex. App.–Dallas 2008, no pet.); Juliff Gardens, L.L.C. v. Texas Comm’n on
Envtl. Quality, 131 S.W.3d 271, 277 (Tex. App.–Austin 2004, no pet.).
2
Case: 14-51136 Document: 00513068756 Page: 3 Date Filed: 06/05/2015
No. 14-51136
25 (5th Cir. 1993); FED. R. APP. P. 28.
Accordingly, we VACATE the district court’s dismissal of the § 16.035
Claim and REMAND that claim for proceedings not inconsistent with this
opinion. We AFFIRM the district court’s dismissal of Plaintiffs’ other claims.
3