Norah Hayes v. The Bank of New York Mellon , 592 F. App'x 891 ( 2015 )

Case: 14-13590 Date Filed: 01/30/2015 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13590
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00338-TWT
NORAH HAYES,
ANGELIA HAYES,
Plaintiffs-Appellants,
versus
THE BANK OF NEW YORK MELLON,
as Trustee for the Certificate Holders of CWABS Inc.,
Asset - Backed Certificates, Series 2005 - 13,
f.k.a. The Bank of New York,
MCCALLA RAYMER, LLC,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 30, 2015)
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Before JORDAN, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Norah and Angelia Hayes appeal the district court’s dismissal of their
complaint for failure to state a claim. They first assert the district court erred by
denying their motion to remand the case to state court, because the district court
lacked jurisdiction over their claims and over any action involving a national bank.
Alternatively, they contend the district court erred by dismissing their complaint,
which arose out of the foreclosure of their home loans, because the claims were
barred by res judicata. After review, 1 we affirm the district court.
I. DISCUSSION
A. Jurisdiction
The Hayeses argue that, pursuant to 28 U.S.C. § 1349, the district court
lacked jurisdiction over Mellon, a national bank that is incorporated and operates
under the laws of the United States. Additionally, they contend that, although they
cited federal statutes, the district court did not have federal question jurisdiction.
Under 28 U.S.C. § 1441, a defendant may remove a claim to federal court
“if the case could have been filed in federal court originally.” Hill v. BellSouth
Telecomm., Inc., 364 F.3d 1308, 1314 (11th Cir. 2004). District courts have
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This Court reviews de novo whether a district court had federal subject matter
jurisdiction following removal. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 780-81
(11th Cir. 2005). This Court also reviews de novo a grant of a motion to dismiss, under Federal
Rule of Civil Procedure 12(b)(6), for failure to state a claim. Glover v. Liggett Grp., Inc., 459
F.3d 1304, 1308 (11th Cir. 2006).
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“federal question jurisdiction over ‘all civil actions arising under the Constitution,
laws, or treaties of the United States.’” Id. (quoting 28 U.S.C. § 1331). A claim
“arises under” federal law when “the face of the plaintiff’s properly pleaded
complaint” presents a federal question. Id. (quotations omitted). A district court
may also exercise supplemental jurisdiction over state-law claims that form part of
the federal “case or controversy,” or, more specifically, “arise out of a common
nucleus of operative fact with a substantial federal claim.” Parker v. Scrap Metal
Processors, Inc., 468 F.3d 733, 742-43 (11th Cir. 2006); see 28 U.S.C. § 1367.
Additionally, “[t]he district courts shall not have jurisdiction of any civil action by
or against any corporation upon the ground that it was incorporated by or under an
Act of Congress, unless the United States is the owner of more than one-half of its
capital stock.” 28 U.S.C. § 1349.
The district court had subject matter jurisdiction over the Hayes’s complaint.
The complaint alleged violations of several federal statutes, including the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq., Real Estate Settlement
Procedures Act, 12 U.S.C. § 2605(e), and Truth in Lending Act, 15 U.S.C. § 1641.
The court could also exercise supplemental jurisdiction over the accompanying
state law claims, since both the state and federal claims were based on the same
allegations regarding the Hayes’s Adjustable Rate Mortgage. Further, § 1349 did
not preclude removal of the case to federal court, because the defendants at no time
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alleged the sole basis for federal jurisdiction was a company’s “incorporation by or
under an Act of Congress.” 28 U.S.C. § 1349. Instead, they correctly argued the
district court had jurisdiction over the various claims in the complaint under 28
U.S.C. §§ 1367, 1441. Therefore, the defendants properly removed the case to
federal court. Parker, 468 F.3d at 742-43; Hill, 364 F.3d at 1314.
B. Dismissal of Complaint
The Hayeses also contend the district court erred by finding their claims
were barred by res judicata. They contend the district court lacked jurisdiction to
enter a final order in their previous lawsuit, and, accordingly, no valid judgment
precluded the claims presented in the current complaint.
“When an appellant fails to challenge properly on appeal one of the grounds
on which the district court based its judgment, [they are] deemed to have
abandoned any challenge of that ground, and it follows that the judgment is due to
be affirmed.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014) (citing Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1306 (11th Cir. 2012).
“A party fails to adequately brief a claim when he does not plainly and
prominently raise it, for instance by devoting a discrete section of his argument to
those claims.” Id. at 681 (quotations omitted). Additionally, a party can abandon a
claim by only making passing references to it in the “statement of the case” or
“summary of the argument” section. Id.
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In its order, the district court dismissed the Hayes’s complaint for the
reasons indicated in the magistrate judge’s report, namely that it failed to state a
cognizable claim, and the magistrate judge’s report did not mention res judicata.
Accordingly, we need not address whether the district court erred by finding that
the claims were also barred by res judicata, because it dismissed the complaint
under Federal Rule of Civil Procedure 12(b)(6), which the Hayeses do not
challenge on appeal. As such, they have abandoned any challenge to the dismissal
of their complaint by failing to challenge each basis for its dismissal. Sapuppo,
739 F.3d at 680. Thus, we affirm the dismissal of the Hayes’s complaint.
AFFIRMED.
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