USCA11 Case: 21-10570 Document: 52-1 Date Filed: 01/20/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10570
Non-Argument Calendar
____________________
ENRIQUE J. DIAZ,
MARIA DIAZ,
Plaintiffs-Appellants,
versus
NATIONSTAR MORTGAGE, LLC,
d.b.a. Mr. Cooper,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 21-10570
D.C. Docket No. 1:19-cv-22148-MGC
____________________
Before WILSON, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Enrique and Maria Diaz (collectively, the Diazes,), proceed-
ing pro se, filed a second amended complaint against Nationstar
Mortgage, LLC, d/b/a Mr. Cooper (Nationstar) alleging breach of
contract, breach of the implied covenant of good faith and fair deal-
ing, and fraud. The district court dismissed the complaint with
prejudice. The Diazes filed a timely notice of appeal.
On appeal, the Diazes argue that the district court improp-
erly ignored the factual allegations supporting their breach of con-
tract claim when it dismissed for failure to state a claim. Conse-
quently, they argue, reversal of this error should also revive their
claim for breach of the covenant of good faith and fair dealing. Fi-
nally, they perfunctorily argue that their complaint stated a claim
for fraud. After careful review of the briefs and the record we
AFFIRM.
I.
We review a district court’s ruling on a Rule 12(b)(6) motion
de novo, “accept[ing] the allegations in the complaint as true and
constru[ing] them in the light most favorable to the plaintiff.” Hen-
ley v. Payne,
945 F.3d 1320, 1326 (11th Cir. 2019). We may affirm
a district court’s judgment “on any ground supported by the
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21-10570 Opinion of the Court 3
record, regardless of whether that ground was relied upon or even
considered by the district court.” Kernel Records Oy v. Mosley,
694 F.3d 1294, 1309 (11th Cir. 2012).
We hold “the allegations of a pro se complaint to less strin-
gent standards than formal pleadings drafted by lawyers.” Camp-
bell v. Air Jamaica Ltd.,
760 F.3d 1165, 1168 (11th Cir. 2014). That
said, “this leniency does not give a court license to serve as de facto
counsel for a party, or to rewrite an otherwise deficient pleading in
order to sustain an action.”
Id. at 1168–69 (quotation marks omit-
ted).
“[I]ssues not briefed on appeal by a pro se litigant are
deemed abandoned.” Timson v. Sampson,
518 F.3d 870, 874 (11th
Cir. 2008). We will not address arguments advanced for the first
time in an appellant’s reply brief. Sapuppo v. Allstate Floridian Ins.
Co.,
739 F.3d 678, 683 (11th Cir. 2014).
Rule 8 of the Federal Rules of Civil Procedure provides that
“[a] pleading that states a claim for relief must contain . . . a short
and plain statement of the claim showing that the pleader is enti-
tled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]his means that a com-
plaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Est. of Bass v.
Regions Bank, Inc.,
947 F.3d 1352, 1358 (11th Cir. 2020) (quotation
marks omitted). “A claim is facially plausible when the court can
draw the reasonable inference that the defendant is liable for the
misconduct alleged from the pled facts.” Resnick v. AvMed, Inc.,
693 F.3d 1317, 1326 (11th Cir. 2012) (quotation marks omitted).
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4 Opinion of the Court 21-10570
Although we accept the factual allegations in the complaint as true,
we are “not bound to extend the same assumption of truth to plain-
tiffs’ conclusions of law.”
Id. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A com-
plaint must identify with specificity which factual paragraphs are
relevant to each individual claim. See Est. of Bass, 947 F.3d at 1356
n.5.
“For a breach of contract claim, Florida law requires the
plaintiff to plead and establish: (1) the existence of a contract; (2) a
material breach of that contract; and (3) damages resulting from
the breach.” Vega v. T-Mobile USA, Inc.,
564 F.3d 1256, 1272 (11th
Cir. 2009). “In Florida, a breach of contract claim requires a party
to show that damages resulted from the breach.” Resnick,
693 F.3d
at 1325. (emphasis in original). We have held that, under Florida
law, a breach of the implied covenant of good faith and fair dealing
cannot be maintained absent an allegation that an express term of
the contract has been breached. Centurion Air Cargo v. UPS Co.,
420 F.3d 1146, 1152 (11th Cir.2005).
Here, the Diazes have failed to demonstrate that the district
court erred in dismissing the breach of contract claim for failure to
state a claim. Claim I in the second amended complaint plainly
reads: “Plaintiffs submit that the defendants actions constitute
Breach of Contract under Florida Law and pursuant to Centurion
Air Cargo, Inc. v. U.P.S. Co.,
420 F.3d 1146 (11th Cir. 2005).” This
statement consists entirely of a conclusion of law that Nationstar
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21-10570 Opinion of the Court 5
breached the contract without any factual support, and therefore
fails to satisfy Rule 8’s requirement of a “short and plain” statement
describing the claim’s factual support. To determine which facts
support the Diazes’ claim would require the type of review from
this court that we have previously deemed unacceptable. See Est.
of Bass, 947 F.3d at 1358.
Even when reaching beyond the complaint to what the Di-
azes argue in their brief, the Diazes failed to demonstrate that Na-
tionstar breached the mortgage contract. The Diazes argue that
Nationstar’s tardiness in handling the repair process breached the
contract. However, paragraph 5 of the Mortgage contract makes
clear that the promptness requirement only relates to Nationstar’s
undertaking of the final inspection rather than imposing a prompt-
ness requirement on the repair process as a whole. The lack of
promptness alone, therefore, does not constitute a breach of con-
tract.
Because the Diazes’s breach of contract claim was properly
dismissed, their claim for breach of the implied covenant of good
faith and fair dealing was also properly dismissed.
II.
Rule 9 of the Federal Rules of Civil Procedure requires a
party alleging fraud to “state with particularity the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). In order to
survive a motion to dismiss, the plaintiff must plead “(1) the pre-
cise statements, documents, or misrepresentations made; (2) the
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6 Opinion of the Court 21-10570
time, place, and person responsible for the statement; (3) the con-
tent and manner in which these statements misled the Plaintiff[ ];
and (4) what the defendants gained by the alleged fraud.” Cisne-
ros v. Petland, Inc.,
972 F.3d 1204, 1216 (11th Cir. 2020) (quota-
tion marks omitted, alteration in original).
Here, the Diazes have forfeited review of this issue by only
perfunctorily raising it in their initial brief. Their general asser-
tion that their amended complaint sufficiently pled the circum-
stances constituting fraud without any supporting argument is in-
sufficient to warrant review. Nor can they revive the claim by ex-
panding on it for the first time in their reply brief. See Sapuppo,
739 F.3d at 683.
AFFIRMED.
