USCA11 Case: 21-11639 Date Filed: 09/19/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11639
Non-Argument Calendar
____________________
STEVEN CLAYTON THOMASON,
Plaintiff-Appellant,
versus
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee for Home Equity Mortgage Loan Asset-
Backed Trust Series INABA 2006-A, Home Equity
Mortgage Loan asset-Backed Certificates Series
INABS 2006-A8,
Defendant-Appellee.
____________________
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2 Opinion of the Court 21-11639
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:20-cv-00292-WKW-KFP
____________________
Before JORDAN, NEWSOM, and BLACK, Circuit Judges.
PER CURIAM:
Steven Thomason, proceeding pro se, appeals following the
district court’s dismissal of his civil complaint alleging Deutsche
Bank National Trust Company (Deutsche Bank) illegally fore-
closed on his property, in violation of Alabama law. Thomason
raises several issues on appeal, which we address in turn. After re-
view, we affirm the district court.
I. BACKGROUND
In 2005, Thomason’s wife borrowed money from a lender
to purchase property located in Montgomery, Alabama (the Prop-
erty). She executed two promissory notes (the Notes) at closing.
As security for the Notes, she and Thomason executed two sepa-
rate mortgages to the lender’s nominee. The Thomasons defaulted
on the Notes, and Thomason’s wife died in October 2009. In Feb-
ruary 2011, the lender’s nominee transferred and assigned the first
mortgage to Deutsche Bank as Trustee. Deutsche Bank, in turn,
notified Thomason it had accelerated the unpaid balance of the
debt and intended to seek nonjudicial foreclosure of the Property.
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21-11639 Opinion of the Court 3
Before the foreclosure was scheduled to take place, Thom-
ason filed actions against Deutsche Bank and other defendants to
stop the foreclosure or to obtain damages for wrongful foreclosure
and other improprieties. Thomason filed Thomason v. OneWest
Bank, FSB, et al., No. 2:12-cv-00604-MHT-WC (Thomason I), a pro
se complaint in the Middle District of Alabama alleging various
mortgage-based claims under federal law. The district court dis-
posed of Thomason I in stages, and eventually granted summary
judgment to the defendants. As he was litigating Thomason I,
Thomason filed Thomason v. Ocwen Loan Servicing, LLC et al.,
No. 2:19-cv-00256-ECM-SMD (Thomason II), a pro se complaint in
the Circuit Court of Montgomery County that was removed to fed-
eral court, alleging several state law claims relating to the mort-
gage. The district court also dismissed this case with prejudice.
In 2020, Thomason filed the instant action, a pro se com-
plaint against Deutsche Bank in the Circuit Court of Montgomery
County. After the bank removed the case to federal court, he filed
a counseled amended complaint against Deutsche Bank seeking,
inter alia, a permanent injunction against foreclosure of the Prop-
erty, and a claim for “wantonness.” The district court dismissed
Thomason’s complaint because, among other reasons, Thomason
I and Thomason II meant res judicata barred his claims.
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4 Opinion of the Court 21-11639
II. DISCUSSION
A. Removal
Thomason asserts the district court lacked removal jurisdic-
tion because the parties were not completely diverse because
Deutsche Bank’s attorneys were from Alabama, and the $75,000
threshold was unsatisfied. A defendant may remove any civil action
brought in a state court to a federal district court that has original
jurisdiction over the action.
28 U.S.C. § 1441(a). Federal courts
have diversity-of-citizenship jurisdiction when the parties are citi-
zens of different states and the amount in controversy exceeds
$75,000.
28 U.S.C. § 1332(a)(1). National banking associations are
deemed citizens of the States in which they are “respectively lo-
cated.”
28 U.S.C. § 1348. A national bank is “respectively located”
in the State in which its main office is located, as set forth in its
articles of association. Wachovia Bank v. Schmidt,
546 U.S. 303,
307 (2006).
The district court had diversity jurisdiction over the action
and thus did not err in removing this case to federal court. See
Holston Invs., Inc. B.V.I. v. LanLogistics Corp.,
677 F.3d 1068, 1070
(11th Cir. 2012) (stating whether a court has subject-matter juris-
diction, including diversity jurisdiction, is a question of law that we
review de novo). First, Thomason was a citizen of Alabama, and
Deutsche Bank was a national bank association with its main office
in California; thus the parties were diverse. Deutsche Bank’s attor-
neys did not affect the citizenship of the parties because they were
not parties to the action. Second, the amount in controversy based
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21-11639 Opinion of the Court 5
on the value of the Property ($114,200), the amount due on the
mortgage ($145,529), and Thomason’s listed expenses ($117,000)
totaled more than $75,000. Accordingly, the district court had ju-
risdiction and we affirm in this respect.
B. Res Judicata
Thomason contends res judicata did not apply because
(1) no court had addressed Deutsche Bank’s 2018 attempted fore-
closure of the Property, (2) the district court in Thomason II im-
properly denied his claim, and (3) the bank’s foreclosure was pro-
hibited under the Servicemembers Civil Relief Act because he
transferred title to his daughter who was called to active military
duty in 2018.
Res judicata bars a plaintiff from raising a claim that has been
previously litigated where “(1) there is a final judgment on the mer-
its; (2) the decision was rendered by a court of competent jurisdic-
tion; (3) the parties, or those in privity with them, are identical in
both suits; and (4) the same cause of action is involved in both
cases.” Griswold v. Cnty. of Hillsborough,
598 F.3d 1289, 1292
(11th Cir. 2010) (quotation marks omitted). “If a case arises out of
the same nucleus of operative facts, or is based upon the same fac-
tual predicate, as a former action, the two cases are really the same
claim or cause of action for purposes of res judicata.” Baloco v.
Drummond Co., Inc.,
767 F.3d 1229, 1247 (11th Cir. 2014) (quota-
tion marks omitted and alterations adopted). “In addition, res ju-
dicata applies not only to the precise legal theory presented in the
prior case, but to all legal theories and claims arising out of the
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6 Opinion of the Court 21-11639
nucleus of operative fact” that could have been raised in the prior
case.
Id. (quotation marks omitted).
The district court did not err in dismissing Thomason’s
complaint due to res judicata. See Jang v. United Techs. Corp.,
206
F.3d 1147, 1149 (11th Cir. 2000) (reviewing dismissal based on res
judicata de novo). Thomason did not challenge the first three ele-
ments of res judicata, and the record shows these elements were
met. First, the district court had jurisdiction in Thomason I and II.
28 U.S.C. § 1331 (providing district courts have jurisdiction over
civil actions arising under the laws of the United States);
12 U.S.C.
§ 1819(b)(2)(A), (B) (stating all civil suits involving the FDIC are
deemed to arise under the laws of the United States and it can re-
move a case in which it is a party to federal court). Second,
Deutsche Bank was a party in all three actions. Griswold, 598 F.3d
at 1292. Third, there were final judgments on the merits in the
previous cases. Id.
Fourth, the causes of action were functionally the same be-
cause they arose from the same factual nucleus—all involved the
same mortgages and subsequent default. See Baloco, 767 F.3d at
1247. Thomason used these events to first allege “illegal foreclo-
sure” under federal law, then to allege apparent state law claims of
“interference with inheritance” and illegal foreclosure, and, in this
case, sought an injunction and to raise a claim for wanton foreclo-
sure. Despite his contention he could not have previously litigated
the June 28, 2018, foreclosure notice, he filed Thomason II one
month later, and res judicata bars claims that could have been
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21-11639 Opinion of the Court 7
brought earlier but were not. Id. Moreover, Thomason moved to
amend his complaint to add claims challenging the June 28, 2018,
foreclosure notice, but the district court denied that motion on
grounds of futility and Thomason did not appeal that denial.
His argument the Thomason II district court wrongly failed
to consider some of his arguments is unavailing because res judi-
cata prevents relitigation of wrongly decided issues. See B & B
Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 157 (2015) (“Is-
sue preclusion prevents relitigation of wrong decisions just as
much as right ones.” (quotation marks omitted and alterations
adopted)). Finally, the district court did not err in declining to con-
sider Thomason’s Servicemembers Civil Relief Act claim, because
he could not amend his complaint via a response to Deutsche
Bank’s motion to dismiss. See Rosenberg v. Gould,
554 F.3d 962,
967 (11th Cir. 2009) (“Where a request for leave to file an amended
complaint simply is imbedded within an opposition memorandum,
the issue has not been raised properly.” (quotation marks omit-
ted)). Thus, we affirm in this respect. 1
1 The district court also dismissed Thomason’s case under Federal Rule of
Civil Procedure 12(b)(6) because (1) he provided no legal or factual support
for his “interference-with-property-rights theory, (2) there was no statute of
limitation for foreclosing on a mortgage under Alabama law, and (3) there was
no tort action for wanton mortgage servicing under Alabama law. Even if we
were to assume, arguendo, that res judicata did not apply, we would affirm
the district court’s conclusion that Thomason’s complaint failed to state a
claim upon which relief could be granted.
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8 Opinion of the Court 21-11639
C. Injunction
Thomason also asks us to issue an injunction to prevent
Deutsche Bank from foreclosing on the Property.
Thomason’s initial brief, liberally construed, asks us to grant
him an injunction to prevent Deutsche Bank from foreclosing on
the Property while his appeal is pending, which is permissible un-
der Federal Rule of Appellate Procedure 8. Erickson v. Pardus,
551
U.S. 89, 94 (2007) (“A document filed pro se is to be liberally con-
strued.” (quotation marks omitted)). However, the record, as sup-
plemented, 2 shows Thomason’s request for injunctive relief is now
moot because the Property was sold in September 2021 following
a foreclosure. See Fla. Ass’n of Rehab. Facilities v. State of Fla.
Dep’t of Health & Rehab. Servs.,
225 F.3d 1208, 1217 (11th Cir.
2000) (“When events subsequent to the commencement of a law-
suit create a situation in which the court can no longer give the
2 After Thomason submitted his initial brief, Deutsche Bank moved us for
leave to supplement the record with a foreclosure deed, recorded October 1,
2021, reflecting a sale of the Property, because it shows that Thomason’s re-
quest for injunctive relief enjoining the foreclosure sale of the Property is now
moot. We GRANT Deutsche Bank’s motion to supplement the record with
the foreclosure deed for the Property because it helps us determine whether
we should dismiss a portion of Thomason’s appeal ⸺ relating to his request
for injunctive relief ⸺ for lack of jurisdiction. See Vital Pharms., Inc. v. Alfieri,
23 F.4th 1282, 1288 (11th Cir. 2022) (stating we have deemed supplementation
of the record appropriate where supplemental material contains facts that il-
luminate a mootness issue).
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21-11639 Opinion of the Court 9
plaintiff meaningful relief, the case is moot and must be dis-
missed.”). As we can no longer prevent the foreclosure of the Prop-
erty, we dismiss Thomason’s request for injunctive relief as moot.
III. CONCLUSON
We affirm the district court’s dismissal of Thomason’s
amended complaint and dismiss his request for injunctive relief.
AFFIRMED in part, DISMISSED in part.
