Veldora Arthur v. JP Morgan Chase Bank, N.A. , 569 F. App'x 669 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12317
________________________
D.C. Docket No. 9:11-cv-81106-DMM
VELDORA ARTHUR, et al.,
Plaintiffs/Appellants,
versus
JP MORGAN CHASE BANK, NA, et al.,
Defendants/Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 13, 2014)
Before MARCUS, Circuit Judge, and COOGLER * and BOWEN, ** District Judges.
*
Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
**
Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
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COOGLER, District Judge:
I. INTRODUCTION
Fifty-eight individuals (hereinafter, “Appellants”) whose homes were in
various stages of the foreclosure process brought this action against JP Morgan
Chase Bank, N.A. 1 (hereinafter, “JP Morgan”), seeking damages and injunctive
relief based on alleged fraudulent and criminal activity surrounding their
foreclosures. Appellants Magdalena Apostolova, Gracie Marla Buchwald, Johnny
H. Le, Emil P. Milyakov, Hone Thach, and Linda Zimmerman have previously
been dismissed from this appeal. The remaining Appellants challenge the district
court’s decision to dismiss many of the claims in this action with prejudice.
Before considering whether the district court properly dismissed any of the
claims, we examine whether it had subject matter jurisdiction over the action.
Concluding that it did, and after a thorough review, we affirm the judgment of the
district court as modified below.
II. BACKGROUND
1
The complaint named JP Morgan Chase Bank, N.A., itself and as the successor by merger to
Chase Home Finance, LLC. The Appellants contend that JP Morgan is liable both for its own
alleged misconduct and for misconduct that occurred regarding various Chase Home Finance
loans. However, we refer to “JP Morgan” as the Appellee in this action because any distinction
between JP Morgan and Chase Home Finance is irrelevant for purposes of this appeal.
2
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A. FACTUAL HISTORY 2
The Appellants hail from Arizona, California, Colorado, Florida, Hawaii,
Massachusetts, Minnesota, New Jersey, New York, Oregon, Tennessee, Virginia,
Washington, and Wisconsin. They are homeowners or former homeowners who
are facing or have faced foreclosure by JP Morgan. The specific foreclosure
processes vary from state to state, as some states employ a judicial process while
others utilize non-judicial means to effect foreclosure. Even states that employ the
same basic procedures have different specific requirements. For example, the
Appellants pleaded that Florida and New Jersey, both judicial foreclosure states,
have put in place specific safeguards to protect debtors from unfair foreclosures
that differ from those in other judicial foreclosure states. Similarly, California and
Colorado, both non-judicial foreclosure states, apparently have further
requirements that foreclosing parties must satisfy. These measures typically require
the foreclosing party to submit additional documentation evincing that the bank,
prior to foreclosure, has made a thorough investigation into its right to foreclose.
According to the complaint, JP Morgan operated a facility (hereinafter, the
“Baymeadows Hub”) in Jacksonville, Florida, as a “nexus and control center” to
institute and maintain foreclosure proceedings across the nation. Appellants
2
As this case comes before us on a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure, we accept the Appellants’ factual allegations in their complaint as true.
Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 705 (11th Cir. 2014).
3
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contend that employees at the Baymeadows Hub produced false or fraudulent
documents, including declarations of compliance with California’s foreclosure
procedures, notices of default and elections to sell, collection letters, and pleadings.
These documents allegedly contained misrepresentations that JP Morgan or Chase
Home Finance was a successor in interest to loans originally made by Washington
Mutual Bank, that the Mortgage Electronic Registration Systems, Inc. (also known
as “MERS”) had an interest in various mortgages, and that JP Morgan properly
complied with the special safeguards for borrowers in various states.
After describing JP Morgan’s general practices and misrepresentations, the
Appellants set out specific facts in their complaint regarding each foreclosure.
These facts amount to a summary of the allegedly fraudulent documents filed or
used in each foreclosure. Although some of the paragraphs contained specific
references connecting documents in a particular foreclosure to the Baymeadows
Hub, many of them did not.
B. PROCEDURAL HISTORY
The Appellants filed this action in state court in Palm Beach County,
Florida, on August 25, 2011. JP Morgan removed the case to the U.S. District
Court for the Southern District of Florida on October 3, 2011, invoking both
diversity and federal question jurisdiction. Subsequently, the Appellants filed an
“Amended Complaint,” a “Second Amended Complaint,” and the “[Corrected]
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Second Amended Complaint.” 3 The Appellants pursued claims based on common
law fraud and violations of the Florida Civil Remedies for Criminal Practices Act,
Fla. Stat. §§ 772.101–772.19 (hereinafter, the “Florida RICO Act”). Additionally,
the Appellants sought several types of injunctive relief, including a national
suspension of JP Morgan’s foreclosure activity and a declaration that any “illegal”
foreclosure is “null and void.”
After the complaint was filed, JP Morgan filed a motion to dismiss for
failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
or alternatively, a motion for a more definite statement pursuant to Rule 12(e). JP
Morgan’s motion challenged both the sufficiency of the pleading and the court’s
subject matter jurisdiction over some of the claims. In response, the Appellants
moved to remand the entire case to state court based on lack of subject matter
jurisdiction. Neither their motion to remand nor their “Preliminary Response” to
the motion to dismiss addressed JP Morgan’s arguments regarding the sufficiency
of their pleading. The Appellants did, however, request in a sur-reply a stay of
proceedings until the district court decided whether to grant their motion to
remand.
Although the district court never expressly discussed the merits of the
Appellants’ motion to stay, it entered an order on April 11, 2012, denying the
3
When we reference “the complaint” throughout this opinion, unless otherwise stated, we are
referring to the “[Corrected] Second Amended Complaint.”
5
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Appellants’ motion to remand the case and granting JP Morgan’s motion to
dismiss. The district court first addressed the Appellants’ demand for injunctive
relief. It determined that certain of the Appellants with pending foreclosure
proceedings were seeking to enjoin their own proceedings, and it dismissed these
claims with prejudice because they failed to meet any of the exceptions to the Anti-
Injunction Act, 28 U.S.C. § 2283. It read the complaint to also demand a
nationwide stoppage of all JP Morgan’s current and future foreclosures, and it
dismissed this claim with prejudice for lack of standing.
Turning to the fraud and Florida RICO claims, the district court first grouped
as “Adjudicated Plaintiffs” those individuals from judicial foreclosure states whose
property had been the subject of a foreclosure judgment, dismissing all of their
claims with prejudice based on the Rooker-Feldman doctrine. As to the remaining
Appellants, the district court divided them into “Florida Plaintiffs” and “non-
Florida Plaintiffs.” The district court dismissed both the fraud and Florida RICO
claims without prejudice as to the Florida Plaintiffs. Finally, the district court
dismissed the fraud claims without prejudice as to the non-Florida Plaintiffs but
dismissed their Florida RICO claims with prejudice.
The Appellants only appealed those dismissals entered with prejudice.
However, the Appellants also contend that the entire case should be remanded to
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state court because the district court concluded that it lacked subject matter
jurisdiction over some of the claims in this action.
III. SUBJECT MATTER JURISDICTION
We review the existence of subject matter jurisdiction de novo. Weatherly v.
Ala. State Univ., 728 F.3d 1263, 1269 (11th Cir. 2013). Subject matter jurisdiction
is fundamental to our power to hear and decide cases, and we must raise questions
about subject matter jurisdiction ourselves whenever a doubt regarding our
jurisdiction arises. Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).
JP Morgan removed this case based on 28 U.S.C. § 1441(a), which allows
for removal of most civil actions where the district court would have original
jurisdiction over the action. We find that we have diversity jurisdiction and thus
need not consider whether federal question jurisdiction exists.
Diversity jurisdiction exists if the parties to the action are citizens of
different states and the amount in controversy exceeds $75,000, exclusive of
interests and costs. 28 U.S.C. § 1332(a)(1). The amount in controversy is not in
question. Thus, each Appellant must be a citizen of a different state than JP
Morgan. See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.
1998) (“Diversity jurisdiction requires complete diversity; every plaintiff must be
diverse from every defendant.”).
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JP Morgan alleged in its notice of removal that it is a national banking
association. A national banking association is a citizen of the state where it is
“located.” 28 U.S.C. § 1348. For purposes of section 1348, a national bank is
located in the place where it is designated to have its main office. Wachovia Bank
v. Schmidt, 546 U.S. 303, 318, 126 S.Ct. 941, 952, 163 L.Ed.2d 797 (2006). JP
Morgan pleaded in its notice of removal that its principal office is located in
Columbus, Ohio, and thus it is a citizen of Ohio for diversity purposes. Therefore,
the Appellants must all be citizens of states other than Ohio.
Fifty-seven of the Appellants are natural persons, and as such are citizens of
the states in which they are domiciled. Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.
1974). 4 Thus, these Appellants are citizens of Arizona, California, Colorado,
Florida, Hawaii, Massachusetts, Minnesota, New Jersey, New York, Oregon,
Tennessee, Virginia, Washington, and Wisconsin.
However, Rena E. Johnston-Farrington is identified in the complaint as “an
authorized agent of the Farrington Family Trust.” From this statement it appears
that Rena E. Johnston-Farrington is suing on behalf of the Farrington Family Trust.
However, in some cases a trustee may sue in his or her own name. See Navarro
Savings Assoc. v. Lee, 446 U.S. 458, 465, 100 S.Ct. 1779, 1784, 64 L.Ed.2d 4254
All decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981, are binding on us. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
8
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(1980) (determining that eight individual trustees could sue in their individual
names). 5 This Court ordered supplemental briefing on the citizenship of the
Farrington Family Trust. In response, JP Morgan submitted documents indicating
that Johnston-Farrington is the sole trustee, settlor, and beneficiary of the trust. She
is a citizen of California, and thus the trust is a citizen of California for diversity
purposes.6 Therefore, complete diversity exists, and the district court had
jurisdiction to consider the case.
IV. DISMISSALS WITH PREJUDICE
A. The Rooker-Feldman Doctrine
Appellants Lawrence and Melanie Walsh (hereinafter “the Walshes”) appeal
the district court’s dismissal with prejudice of their common law fraud and Florida
RICO claims based on the Rooker-Feldman doctrine. After reviewing a copy of a
Wisconsin state court docket sheet and a table submitted by JP Morgan, the district
court concluded that the state court had rendered a final foreclosure judgment
against the Walshes. The district court then found that this action amounted to an
5
This Court has recognized that Navarro Savings is a narrow exception to the general rule that
unincorporated associations must consider all members of the association in determining
citizenship. Riley v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 292 F.3d 1334, 1339–40 (11th
Cir. 2002) (overruled on other grounds as recognized in Instituto De Prevision Militar v. Merrill
Lynch, 546 F.3d 1340, 1348 (11th Cir. 2008)).
6
Although this Court does not generally consider materials outside the original record before the
district court, it has the equitable power to allow parties to supplement the record. See Cabalceta
v. Standard Fruit Co., 883 F.2d 1553, 1555 (11th Cir. 1989) (considering supplemental
information relevant to subject matter jurisdiction).
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impermissible appeal of the Wisconsin state court judgment. The Walshes have
neither challenged the district court’s decision to consult these documents nor the
district court’s determination that the Wisconsin state court judgment was a final
judgment. Thus, we accept the Wisconsin judgment as established for purposes of
this appeal. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330
(11th Cir. 2004) (noting that “a legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will not be addressed”).
Instead, the Walshes contend that their action is not an appeal of the
Wisconsin state court judgment, and thus their claims are not barred by the
Rooker-Feldman doctrine. Alternatively, they argue that if their claims are barred
by the Rooker-Feldman doctrine then the entire case should be remanded to the
Florida state court for lack of subject matter jurisdiction. We review the district
court’s Rooker-Feldman decision de novo. Doe v. Fla. Bar, 630 F.3d 1336, 1340
(11th Cir. 2011).
The Rooker-Feldman doctrine “is a jurisdictional rule that precludes the
lower federal courts from reviewing state court judgments.” Alvarez v. Attorney
Gen. for Fla., 679 F.3d 1257, 1262 (11th Cir. 2012). Its premise is that the broad
grant of original jurisdiction to the district courts may at times conflict with
Congress’s directive in 28 U.S.C. § 1257, that only the Supreme Court may review
the judgments of state courts. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
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U.S. 280, 291, 125 S.Ct. 1517, 1526, 161 L.Ed.2d 454 (2005). Lower federal
courts generally lack jurisdiction over actions that seek reversal or nullification of
state court judgments. D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486–87,
103 S.Ct. 1303, 1317, 75 L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S.
413, 415–16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923). However, the Supreme Court
in Exxon Mobil narrowed the Rooker-Feldman doctrine as “confined to cases of
the kind from which the doctrine acquired its name: cases brought by state-court
losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and
rejection of those judgments.” 544 U.S. at 284, 125 S.Ct. at 1521–22. Thus, a
district court does not lack jurisdiction under the Rooker-Feldman doctrine merely
“because a party attempts to litigate in federal court a matter previously litigated in
state court.” Id. at 293, 125 S.Ct. at 1527.
The district court applied the four-part test this Court approved in Amos v.
Glynn County Board of Tax Assessors, 347 F.3d 1249 (11th Cir. 2003), to
determine whether the Rooker-Feldman doctrine barred the Walshes’ claims.
However, following Exxon Mobil, this Court rejected that test in favor of strict
reliance on the language found in Exxon Mobil. Nicholson v. Shafe, 558 F.3d 1266,
1274 (11th Cir. 2009). The Rooker-Feldman doctrine now applies when “(1) the
success of the federal claim would ‘effectively nullify’ the state court judgment, or
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. . . (2) the federal claim would succeed ‘only to the extent that the state court
wrongly decided the issues.’” Alvarez, 679 F.3d at 1262–63 (quoting Casale v.
Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009) (per curiam)). As such, the district
court erred in applying the Amos test.
Upon considering the Exxon Mobil test, we conclude that the Walshes’ fraud
and Florida RICO claims are not barred by the Rooker-Feldman doctrine. First, the
Walshes’ claims would not effectively nullify the Wisconsin state court judgment.
The Walshes seek money damages for alleged criminal and fraudulent conduct in
the generation of foreclosure-related documents. There is no indication that the
Walshes actually raised the issue of fraud in the Wisconsin foreclosure proceeding.
Instead of seeking to nullify the state court judgment, the Walshes are seeking to
bypass any findings in the state court judgment that would be adverse to them in
this suit. See Nesses v. Shepard, 68 F.3d 1003, 1004 (7th Cir. 1995) (“When a
plaintiff seeks to relitigate a suit that has been decided against him, he is not so
much attacking as trying to bypass the judgment in that suit; and the doctrine that
blocks him is res judicata.”).
Additionally, the Walshes’ suit falls outside the second prong of the Rooker-
Feldman analysis. The Walshes’ alleged injuries flow at least in part from the
generation of the foreclosure documents and not solely from the issuance of the
state court judgment. Cf. Alvarez, 679 F.3d at 1263 (“Alvarez’s as-applied due
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process challenge boils down to a claim that the state court judgment itself caused
him constitutional injury by arbitrarily denying him access to the physical evidence
he seeks.” (emphasis added)); see Truong v. Bank of Am., N.A., 717 F.3d 377, 383
(5th Cir. 2013) (finding that the Rooker-Feldman doctrine did not bar a challenge
to a foreclosure when “the damages [the Appellant] requested were for injuries
caused by the banks’ actions, not injuries arising from the foreclosure judgment”).
The Walshes’ claims are the type of claims contemplated in Exxon Mobil, as they
have raised independent claims of criminal or fraudulent conduct that might
“den[y] a legal conclusion that a state court has reached.” Exxon Mobil, 544 U.S. at
293, 125 S.Ct. at 1527 (internal quotation marks omitted).
Although the Rooker-Feldman doctrine does not bar the Walshes’ fraud and
Florida RICO claims, the claims are barred by state preclusion law. See United
States v. Hall, 714 F.3d 1270, 1271 (11th Cir. 2013) (noting that this Court “‘may
affirm for any reason supported by the record, even if not relied upon by the
district court’” (quoting United States v. Chitwood, 676 F.3d 971, 975 (11th Cir.
2012))). When evaluating the effect of a state court judgment, we apply the
preclusion law of the rendering state. Lozman v. City of Riviera Beach, Fla., 713
F.3d 1066, 1075 n.6 (11th Cir. 2013). The Walshes joined this action in Florida,
but the judgment at issue was rendered in Wisconsin state court. Thus, we apply
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the law of Wisconsin to determine whether the Walshes are precluded from
bringing suit.
Under Wisconsin law, “[c]laim preclusion or res judicata limits relitigation
of issues that were or might have been litigated in former proceedings.” A.B.C.G.
Enters., Inc. v. First Bank Se., N.A., 515 N.W.2d 904, 907 (Wis. 1994). Most
counterclaims are permissive under Wisconsin law, but the courts have recognized
a common law exception when a litigant attacks a judgment in a subsequent
proceeding that would undermine the rights established in the previous judgment.
Menard, Inc. v. Liteway Lighting Prods., 698 N.W.2d 738, 745–46 (Wis. 2005). In
addition, the Wisconsin Supreme Court has recognized that allegations based on
fraud and civil RICO involving a foreclosure proceeding should be brought in the
initial foreclosure proceeding. See A.B.C.G. Enters., Inc., 515 N.W.2d at 909–10
(citing Henry v. Farmer City State Bank, 808 F.2d 1228 (7th Cir. 1986)). As such,
the Walshes are precluded from bringing these claims in the current litigation.
For these reasons, we affirm the dismissal of the Walshes’ fraud and Florida
RICO claims. We also affirm the district court’s decision to make the dismissal
“with prejudice” since the Wisconsin state court judgment precludes any
possibility of recovery in a separate fraud or civil RICO action based on the
foreclosure. See Dresdner Bank AG v. M/V OLYMPIA VOYAGER, 463 F.3d 1233,
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1239 (11th Cir. 2006) (finding that dismissal with prejudice was appropriate when
there was no possibility of recovery on an admiralty claim).
We note that the Appellants’ amended demand for injunctive relief contains
a broad demand that the district court “grant declaratory relief by entering a decree
that any foreclosure action which was illegally or unlawfully undertaken by
Defendant JPM be adjudged and declared as null, void, and of no force or effect.”
It is impossible to discern from the complaint whether this demand is meant to
apply to individuals like the Walshes who previously received foreclosure
judgments in other states. A federal district court sitting in diversity would only
have the powers of a Florida state court, and a Florida state court would have no
power to simply overturn a Wisconsin judgment. See Phillips v. Kaplus, 764 F.2d
807, 812 (11th Cir. 1985) (noting that Congress’s grant of judicial power neither
gave federal courts power to deny state substantive rights nor power to create a
right that would be denied under state law); Trauger v. A.J. Spagnol Lumber Co.,
442 So. 2d 182, 183 (Fla. 1983) (stating that the Florida courts must “recognize the
judgments obtained in courts of sister states in order to prevent one state from
selectively enforcing the laws of the others”).
Insofar as the Walshes seek to have their Wisconsin judgment declared null
and void by the district court sitting in diversity, such claim is barred by the
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Rooker-Feldman doctrine. 7 See Rooker, 263 U.S. at 414, 44 S.Ct. at 149 (noting
that the bill of equity sought to have a state judgment “declared null and void”).
However, this does not, as Appellants suggest, necessitate remand of the entire
case because the Rooker-Feldman doctrine does not destroy subject matter
jurisdiction over this case; it only affects one claim within the case. See 28 U.S.C.
§ 1447(c). Even so, lack of subject matter jurisdiction over this claim precludes a
judgment on the merits. See Crotwell v. Hockman-Lewis Ltd., 734 F.2d 767, 769
(11th Cir. 1984). Instead of returning this case to the district court for entry of a
new order, we modify the judgment to dismiss this injunctive claim without
prejudice as to the Walshes. See id. 8
B. Injunctive Relief
The district court dismissed some of the remaining claims for injunctive
relief based on lack of standing and the rest for failing to meet one of the
exceptions to the Anti-Injunction Act. We review both issues de novo. Ave. CLO
Fund Ltd. v. Bank of Am., NA, 709 F.3d 1072, 1077 (11th Cir. 2013) (standing);
7
Unlike the Walshes’ fraud and Florida RICO claims, this demand would be barred by the
Rooker-Feldman doctrine as defined by this Court. See Alvarez, 679 F.3d at 1262–63. Instead of
attempting to bypass the Wisconsin state court judgment, this demand purports to attack the
judgment. Cf. Nesses, 68 F.3d at 1004.
8
The Rooker-Feldman doctrine is jurisdictional, and thus this claim should also be dismissed
without prejudice as to Linda Zimmerman, the other “Adjudicated Plaintiff.” Her original
judgment was rendered in Florida, not Wisconsin. Though she is not currently part of this appeal,
we modify that portion of the dismissal to be without prejudice as well. See Weatherly v. Ala.
State Univ., 728 F.3d 1263, 1269 (11th Cir. 2013) (noting that this Court must inquire into
jurisdictional matters sua sponte).
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Estate of Brennan ex rel. Britton v. Church of Scientology Flag Serv. Org., Inc.,
645 F.3d 1267, 1272 (11th Cir. 2011) (Anti-Injunction Act).
i. Standing
All Appellants seek a broad injunction halting JP Morgan’s current
foreclosure proceedings and enjoining all future “illegal” foreclosure proceedings.
The district court dismissed these requests for injunctive relief for lack of standing.
We agree with that conclusion.
The Constitution limits the judicial power of the federal courts to
adjudications of actual “Cases” and “Controversies.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559–60, 112 S.Ct. 2130, 2135–36, 119 L.Ed.2d 351 (1992).
In order to satisfy the requirements for standing under Article III of the
Constitution, a plaintiff must show: (1) injury-in-fact; (2) a causal connection
between the asserted injury and the defendant’s activities; and (3) that the injury
would be redressed by a favorable decision. Houston v. Marod Supermarkets, Inc.,
733 F.3d 1323, 1328 (11th Cir. 2013). Here, the district court concluded that any
allegations of future injury were too speculative or conjectural to satisfy the injury-
in-fact prong. See 31 Foster Children v. Bush, 329 F.3d 1255, 1265–66 (11th Cir.
2003).
It would be pure speculation to suggest that these Appellants would be
harmed by current or future foreclosures of other individuals’ properties. While
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those Appellants with pending foreclosures would have standing to seek an
injunction regarding their own proceedings, the Appellants have not alleged a
sufficient likelihood of injury from unrelated current or future foreclosures to
establish standing. Moreover, none of the Appellants have alleged facts to suggest
that JP Morgan is likely to foreclose on them by fraudulent means again in the
future. See City of Los Angeles v. Lyons, 461 U.S. 95, 107–108, 103 S.Ct. 1660,
1668, 75 L.Ed.2d 675 (1983) (noting that the plaintiff lacked standing to seek an
injunction because it was speculative that he would be arrested again and that he
would be subjected to a chokehold again).
Although dismissal was appropriate in this case, dismissal for lack of
standing is not on the merits and must be made without prejudice. See Stalley ex.
rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1235
(11th Cir. 2008). Thus, we modify the judgment to indicate that those dismissals
made for lack of standing are made “without prejudice” instead of “with prejudice”
and affirm the judgment as modified. See Crotwell, 734 F.2d at 769 (modifying a
judgment to read “without prejudice” when it previously read “with prejudice”
without remanding it).
ii. Anti-Injunction Act
Appellants with ongoing foreclosure proceedings also seek to enjoin the
foreclosure of their own properties. The district court dismissed these claims
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because it found that none of the exceptions to the Anti-Injunction Act applied.
Under the Anti-Injunction Act, a district court may not enjoin state proceedings
“except as expressly authorized by Act of Congress, or where necessary in aid of
its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. The
Appellants have cited no Act of Congress that would allow for injunctive relief,
and we agree with the district court that neither of the two remaining exceptions
applies.
The second exception, or “necessary in aid of its jurisdiction” exception,
applies in two narrow circumstances: (1) the federal court gains jurisdiction over
res in an in rem proceeding before a party brings a subsequent state court action; or
(2) the federal court is presented with a similar context, such as the need to protect
an earlier injunction. Burr & Forman v. Blair, 470 F.3d 1019, 1028–29 (11th Cir.
2006). Neither basis applies here. First, the Appellants have not pursued an in rem
action but are instead seeking a judgment in personam against JP Morgan. See In
re Rothstein, Rosenfeldt, Adler, P.A., 717 F.3d 1205, 1214 (11th Cir. 2013) (noting
that an in rem action exists when the district court is exercising jurisdiction over
property). The Appellants have also not implicated the second basis, which applies
when the district court must protect a pre-existing federal judgment or injunction.
See Burr & Forman, 470 F.3d at 1029 (noting that this basis typically refers to
cases where a court is protecting an earlier federal injunction, such as in school
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desegregation cases); Battle v. Liberty Nat’l Life Ins. Co., 877 F.2d 877, 881–82
(11th Cir. 1989) (describing the need for an injunction in a complex antitrust action
when a state action would destroy many years of litigation in the federal court).
Finally, the third exception, known as the “relitigation exception,” does not
apply in this case. The relitigation exception is applicable where subsequent state
law claims “would be precluded by the doctrine of res judicata.” Burr & Forman,
470 F.3d at 1029–30. In addition to the existence of a federal judgment, “the party
seeking the injunction must make a strong and unequivocal showing of
relitigation.” Delta Air Lines, Inc. v. McCoy Rests., Inc., 708 F.2d 582, 586 (11th
Cir. 1983) (internal quotation marks omitted). The Appellants have not received
and cannot point to a federal judgment that has been issued in their favor. Cf. New
York Life Ins. Co. v. Gillispie, 203 F.3d 384, 387–88 (5th Cir. 2000) (examining a
previous federal court judgment and finding that an injunction could be issued
under the re-litigation exception).
The district court characterized this dismissal as a dismissal with prejudice
for lack of jurisdiction, and thus the Appellants again seek a remand of the entire
case. The Anti-Injunction Act limits the reach of the equitable powers of the
federal courts but is not considered a jurisdictional statute. See, e.g., Peterson v.
BMI Refractories, 124 F.3d 1386, 1395 (11th Cir. 1997) (determining whether the
district court had subject matter jurisdiction over an action before deciding whether
20
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the Anti-Injunction Act barred injunctive relief); In re Mooney Aircraft, Inc., 730
F.2d 367, 372–73 (5th Cir. 1984) (“The Anti-Injunction Act is not a jurisdictional
statute, but goes only to the granting of a particular form of equitable relief.”).
Accordingly, the district court had the power to render an adjudication on the
merits. Moreover, dismissal with prejudice is appropriate when a more carefully
drafted complaint would not state a claim for relief. See Ziemba v. Cascade Int’l,
Inc., 256 F.3d 1194, 1213 (11th Cir. 2013). The Appellants had multiple
opportunities to amend the claim for injunctive relief, and we find it implausible
that additional facts could yield a claim for which relief could be granted. We
affirm these dismissals with prejudice.
C. The Florida RICO Act
The non-Florida Appellants appealed the district court’s dismissal of their
Florida RICO Act claims with prejudice. The Florida resident plaintiffs did not
appeal the dismissal of their Florida RICO Act claims, as they were dismissed
without prejudice. The district court determined that none of the non-Florida
Appellants pleaded sufficient facts involving Florida conduct to suggest that JP
Morgan committed any crimes that would be punishable under Florida law. The
district court dismissed these claims, stating that it lacked “jurisdiction” over them.
Based on the ambiguity of the word “jurisdiction,” the Appellants argue that this
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case should be remanded to the state court because the district court “lacked
subject matter jurisdiction over the case.”
We note that the subject matter jurisdiction of the federal courts is conferred
exclusively by Congress, not the states. Kontrick v. Ryan, 540 U.S. 443, 452, 124
S.Ct. 906, 914, 157 L.Ed.2d 867 (2004). While Florida statutes may bear on
whether the Appellants have properly stated a sufficient claim for relief that would
survive a dismissal under Federal Rule of Civil Procedure 12(b)(6), they do not
necessarily have any bearing on the power of the federal courts to hear this case.
See Norman M. Morris Corp. v. Weinstein, 466 F.2d 137, 142 (5th Cir. 1972)
(stating that a Florida statute limiting recovery of a foreign corporation that fails to
register does not raise an issue of jurisdiction but might be a defense to a claim).
Thus, we must determine whether the complaint states a cause of action, which we
review de novo. Smith v. Casey, 741 F.3d 1236, 1241 (11th Cir. 2014).
The Florida RICO Act, patterned after the federal RICO Act, establishes
civil liability when an enterprise engages in a pattern of criminal activity. Fla. Stat.
§ 772.103.9 In order to establish a pattern of criminal activity, the plaintiff must
9
The Florida RICO Act contains four separate prohibitions:
It is unlawful for any person:
(1) Who has with criminal intent received any proceeds derived,
directly or indirectly, from a pattern of criminal activity or through
the collection of an unlawful debt to use or invest, whether directly
or indirectly, any part of such proceeds, or the proceeds derived
from the investment or use thereof, in the acquisition of any title
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allege two or more criminal acts “that have the same or similar intents, results,
accomplices, victims, or methods of commission” that occurred within a five-year
time span. Fla. Stat. § 772.102(4). The Appellants’ Florida RICO claims are based
on a pattern of criminal activity involving predicate state law crimes of fraud, theft,
and perjury, and a predicate federal law crime of mail fraud.
Before examining the complaint, we can reject the Appellants’ arguments
relating to the sufficiency of their pleading because these arguments were never
made to the district court. See Coal. for the Abolition of Marijuana Prohibition v.
City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (“[F]ailure to brief and argue
[an] issue during the proceedings before the district court is grounds for finding
that the issue has been abandoned.”). In the district court the Appellants filed a
five-page “Preliminary Response” to JP Morgan’s motion to dismiss that restated
to, or any right, interest, or equity in, real property or in the
establishment or operation of any enterprise.
(2) Through a pattern of criminal activity or through the collection
of an unlawful debt, to acquire or maintain, directly or indirectly,
any interest in or control of any enterprise or real property.
(3) Employed by, or associated with, any enterprise to conduct or
participate, directly or indirectly, in such enterprise through a
pattern of criminal activity or the collection of an unlawful debt.
(4) To conspire or endeavor to violate any of the provisions of
subsection (1), subsection (2), or subsection (3).
Fla. Stat. § 772.103. The Appellants divided their Florida RICO claims into four separate counts,
one for each of these four prohibitions. However, the complaint restated the same predicate
offenses and the same factual allegations to support each claim and only substituted the specific
statutory language in each count. The district court grouped the Florida RICO claims together
because they were based on the same factual allegations, and so do we.
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their position that the entire case should be remanded to the state court. 10 The
Appellants should have, at a minimum, argued in the alternative the sufficiency of
the pleadings in order to preserve these issues for appeal, and they cannot raise
these arguments for the first time now.
However, even if the Appellants had not abandoned these issues, our careful
review of the record confirms that the complaint fails to state a Florida RICO claim
premised on any of the alleged predicate offenses. Appellants contend in their
reply brief that a complaint states a claim for relief unless a plaintiff could prove
“no set of facts” that would entitle him to relief. See United States v. Baxter Int’l,
Inc., 345 F.3d 866, 880 (11th Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41,
45–6, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).11 Counsel’s statement of the law is
wrong for at least two reasons. First, the Supreme Court has abrogated the Conley
standard of notice pleading. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560–63,
127 S.Ct. 1955, 1968–69, 167 L.Ed.2d 929 (2007) (discussing Conley’s “no set of
facts” language and rejecting it as a pleading standard). Now, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556
10
After filing an initial response to the motion to dismiss styled as a “Preliminary Response,” the
Appellants filed a “Sur-Reply” in which they asked the district court to stay any briefing on the
pleading issues until it had ruled on the motion to dismiss. However, the district court never
granted such a stay, nor did the Appellants direct any briefing to the issue of the sufficiency of
their pleading.
11
Appellants’ counsel also began his oral argument by referencing this standard.
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U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation
marks omitted). Thus, any well-pleaded complaint “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.Second, “[c]ivil RICO claims, which are essentially a certain breed of fraud
claims, must be pled with an increased level of specificity” consistent with Rule 9
of the Federal Rules of Civil Procedure (“Rule 9”). Ambrosia Coal & Constr. Co.
v. Pages Morales, 482 F.3d 1309, 1316 (11th Cir. 2007). Under this pleading
standard, a well-pleaded complaint must allege: “(1) the precise statements,
documents, or misrepresentations made; (2) the time, place, and person responsible
for the statement; (3) the content and manner in which these statements misled the
Plaintiffs; and (4) what the defendants gained by the alleged fraud.” Brooks v. Blue
Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1380–81 (11th Cir. 1997).
Additionally, since the non-Florida Appellants are pursuing a civil remedy
authorized under Florida law, they must allege a connection between Florida and
the alleged wrongful conduct. Generally, Florida statutes “have no force beyond
the limits of this state.” See Equitable Life Assur. Soc. of the United States of Am.
v. McRee, 78 So. 22, 24 (Fla. 1918). Indeed, there is a presumption that the
legislature, in passing a statute, did not intend to apply a law extraterritorially.
Jackson Lumber Co. v. Walton Cnty., 116 So. 771, 786 (Fla. 1928). The Appellants
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do not point to any language in the Florida RICO Act that would indicate
extraterritorial application of the law. 12
Although the Florida RICO Act does not apply extraterritorially, the non-
Florida Appellants might nevertheless be able to state a Florida RICO claim if the
conduct occurred partially in Florida and partially in another state. The district
court consulted a Florida statute that defines when a person is subject to criminal
prosecution in Florida to determine the reach of a Florida RICO Act claim based
on a state law predicate act. See Fla. Stat. § 910.005. Under this statute, a person
may be prosecuted in Florida if one of several conditions is met, including: “[t]he
offense is committed wholly or partly within the state.” Fla. Stat. § 910.005(1)(a).
“An offense is committed partly within this state if either the conduct that is an
element of the offense or the result that is an element, occurs within the state.” Fla.
Stat. § 910.005(2).
The plain language of the Florida RICO Act supports the district court’s
reading. See United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85 (Fla. 2001)
12
The Appellants do rely in part on the federal RICO statute, which has been found to be
persuasive when interpreting the Florida RICO Act. See Jackson v. BellSouth Telecomms., 372
F.3d 1250, 1263–64 (11th Cir. 2004). This Court has previously held that the federal RICO Act
may apply extraterritorially without an express directive of Congress if the effects of the
racketeering activity are felt in the United States. Liquidation Com’n of Banco Intercontinental,
S.A. v. Renta, 530 F.3d 1339, 1351–52 (11th Cir. 2008). However, the holding in Renta has been
called into question by the Supreme Court’s decision in Morrison v. Nat’l Australia Bank Ltd.,
561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). In Morrison, the Supreme Court found
that absent an affirmative indication from Congress that a federal statute applied
extraterritorially, it did not. 130 S.Ct. at 2883. Given the Supreme Court’s decision in Morrison
and the clear Florida precedent that its laws are not extraterritorial, it is unlikely that the Florida
Supreme Court would apply the effects test in Renta to the Florida RICO Act.
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(explaining that a court lacks power to diverge from a statute’s language if the
meaning is clear). In order to state a civil cause of action under the Florida RICO
Act, a plaintiff must allege a pattern of criminal activity. See Fla. Stat. §§ 772.103–
104. The Florida RICO Act’s definition of “criminal activity” provides that a
particular state law crime can serve as the predicate act for a RICO claim if it is
“chargeable by indictment or information” and falls within a series of specified
provisions. Fla. Stat. § 772.102(1)(a). The plain meaning of “chargeable by
indictment” suggests that a plaintiff alleging “criminal activity” under the Florida
RICO Act would have to allege that the crime is “chargeable by indictment” in
Florida. To be chargeable by indictment under Florida criminal law, there must be
sufficient contact with the state of Florida as defined by section 910.005. See Lane
v. State, 388 So. 2d 1022, 1026 (Fla. 1980) (interpreting a predecessor to this
statute to be jurisdictional and finding that it is essential to a Florida court’s ability
to try a defendant).
Thus, it is reasonable to infer that the Florida legislature intended the Florida
RICO Act to run co-extensively with the reach of the Florida criminal statutes. The
legislature enacted the Florida RICO Act in part to prevent organized criminals
from manipulating Florida laws. See State v. Otte, 887 So. 2d 1186, 1189–90 (Fla.
2004). Thus, the Florida RICO Act seeks to deter organized criminal activity
emanating from Florida. See Delisi v. Smith, 423 So. 2d 934, 938 (Fla. 2d Dist. Ct.
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App. 1982) (finding that a forfeiture furthered the remedial purposes of the Florida
RICO Act, which included discouraging migration of organized crime “families”
from other states to Florida). Accordingly, we believe that the district court
correctly applied section 910.005 as an element that must be pleaded when the
claim involves predicate state law offenses that occurred partially in Florida and
partially in another state. See Har-Pen Truck Lines, Inc. v. Mills, 378 F.2d 705, 710
(5th Cir. 1967) (“In a diversity case, state law controls as to the substantive
elements of plaintiff’s case and of defendant’s defense.” (internal quotation marks
omitted)).
Similarly, the Appellants would also need to allege Florida criminal activity
in order to support a Florida RICO claim based on a federal law predicate act.
Under federal law, venue is only appropriate in the district where the offense was
committed or, in cases of conspiracy or continuing offenses under 18 U.S.C. §
3237(a), where the defendant performed an overt act in furtherance of the crime.
United States v. Bradley, 644 F.3d 1213, 1253 (11th Cir. 2011). Thus, it is
necessary for all non-Florida Appellants to allege that at least part of the criminal
activity in their foreclosures occurred in Florida. Although counsel for the
Appellants represented at oral argument that each individual had alleged a tie to the
Baymeadows Hub, that is not the case.
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The complaint describes the Baymeadows Hub as the “center of operations
for the majority of the RICO conduct as alleged herein,” but it does not allege
sufficient facts to suggest that every Appellant’s foreclosure involved the
Baymeadows Hub. Instead, the complaint asserts that JP Morgan operated the
Baymeadows Hub to prepare false documents “[a]t all times material hereto and
incident to the specific matters set forth more fully hereinbelow as to certain of the
Plaintiffs.” According to the complaint, documents from the Baymeadows Hub
were transmitted “to the affected Plaintiffs through the mails.” The plain meaning
of these statements is that the Baymeadows Hub generated documents in some of
the Appellants’ foreclosures, as alleged in their individual cases.
Similarly, we have reviewed the specific factual allegations set forth as to
each Appellant, and many of these factual paragraphs do not even mention the
Baymeadows Hub. The following Appellants make no allegation that the
Baymeadows Hub produced specific documents in their particular foreclosure
actions: Jean A. Charbonneau, Louis Corti, Henry Cossio, Raclin T. Dang, Thuan
Do, Tam Eatley, Renita Z. Gordon, Adrienne Hoban, Vincent Hoban, Jane
Hobson, Russell B. Hobson, Jean Immesberger, Ronald Immesberger, Kazumi
Kuboyama, Lan Le, Manh Le, Phuoc Le, Eileen G. Maturniak, George Maturniak,
Leon McIntyre, Solange McIntyre, Danny Nguyen, Susan Nichter, Frank Rapp,
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Veronica Salinas, Michael D. Scott, Ted Taisuke, and Patrick Verhagen. 13
Accordingly, the district court’s dismissal is affirmed as to all of these Appellants
as they failed to allege a connection between the Baymeadows Hub, located in
Florida, and their foreclosure proceedings. We must still consider, though, whether
the remaining Appellants who did allege that a document in their foreclosure was
created in Florida have alleged Florida RICO claims based on predicate acts of
perjury, theft, or mail fraud. 14
Turning first to perjury, Florida recognizes both felony perjury, which
occurs when a defendant makes a false statement while under oath in an official
proceeding, and misdemeanor perjury, which occurs when a defendant makes a
false statement under oath not in an official proceeding. Fla. Stat. § 837.02(defining felony perjury); Fla. Stat. § 837.012 (defining misdemeanor perjury).
Both may serve as predicate offenses under the Florida RICO Act. State v. Adkins,
553 So. 2d 294, 297 (Fla. 1st Dist. Ct. App. 1989). While the Appellants did not
refer to a specific perjury statute in their complaint, they only address the felony
13
We also consulted the lengthy “RICO Case Statement” that the Appellants filed in this action.
None of these Appellants alleged any additional facts in that document to tie JP Morgan’s
Florida office to his or her foreclosure proceeding.
14
Although fraud is another predicate act for purposes of a Florida RICO claim, the Appellants
made no argument in their brief that they had stated a fraud claim. The common law fraud count
of the complaint was dismissed without prejudice, and that dismissal was not appealed. Indeed,
Appellants’ only argument was for remand based on the district court’s statement that it could
not determine whether it had jurisdiction over the claim. We have already decided the issue of
jurisdiction, and thus any argument that the Appellants alleged a sufficient tie to Florida to rely
on fraud as a predicate act is abandoned. See United States v. Ford, 270 F.3d 1346, 1347 (11th
Cir. 2001).
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perjury statute discussed by the district court in their briefing before this Court.
Thus, we only consider the felony perjury statute. See Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (noting that an
appellant must clearly and specifically raise an issue for review in his or her brief
or it is abandoned).
Under Florida law, it is a felony for a person to make “a false statement,
which he or she does not believe to be true, under oath in an official proceeding.”
Fla. Stat. § 837.02(1). There is no “result” element of perjury such that a fact finder
must believe the false statement. See Adams v. Murphy, 394 So. 2d 411, 414–15
(Fla. 1981). As to the conduct punishable by perjury, the plain language of the
statute suggests that the language “under oath in an official proceeding” modifies
the term “false statement” to require that such a statement be made in an official
proceeding. This reading is consistent with the purpose behind Florida’s perjury
laws. See Wolfe v. State, 271 So. 2d 132, 134 (Fla. 1972) (“[T]he purpose to be
guarded against and the reasons for the punishment for perjury are to deter persons
from testifying under oath to false statements in order to mislead the trier of the
facts.”). Logically then, if an individual creates a document in Florida and later
uses that document to perjure himself in another state, the other state’s perjury
laws would criminalize the conduct. See, e.g., Ariz. Rev. Stat. Ann. § 13-2702;
Mass. Gen. Laws ch. 268, § 1; N.J. Stat. Ann. § 2C:28-1 (defining perjury
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similarly to Florida law). Moreover, this reading is supported by Florida having a
misdemeanor perjury statute criminalizing the mere creation of certain false
documents under oath.
The remaining Appellants made the conclusory allegation that JP Morgan’s
practices included, “in certain instances, actions involving perjury.” However, the
complaint contains no indication as to which Appellants are raising perjury as a
predicate offense. Additionally, those Appellants who alleged that a document was
created in Florida failed to allege any facts to suggest that the document was used
or created during an official proceeding in Florida. See, e.g., Schramm v. State, 374
So. 2d 1043, 1045 (Fla. 3d Dist. Ct. App. 1979) (finding that the defendant’s
responses to a police interrogation were not made in an “official proceeding” under
the Florida perjury statute). Indeed, the complaint does not contain allegations that
these particular documents were actually used in a foreclosure proceeding.
However, any use of the documents occurred in the states of the non-Florida
Appellants’ foreclosure proceedings, not Florida.
Moreover, even if these Appellants had alleged a sufficient connection to
Florida, the perjury allegations still failed to conform to the Rule 9 pleading
requirements. In order to satisfy Rule 9, the complaint must allege “the details of
the defendants’ allegedly fraudulent acts, when they occurred, and who engaged in
them.” United States ex rel. Matheny v. Medco Health Solutions, Inc., 671 F.3d
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1217, 1222 (11th Cir. 2012) (internal quotation marks omitted). None of the
Appellants has alleged essential facts regarding each document, such as when it
was created, when it was used, and the specific individuals responsible for
transmitting, mailing, or filing a particular document. See Brooks, 116 F.3d at
1380–81. Thus, the district court properly determined that the non-Florida
Appellants could not state a Florida RICO claim based on perjury.
Next, we must consider the allegations of theft as the predicate offense. As
with perjury, the Appellants did not allege a particular theft statute and only
referred to “Chapter 812, Florida Statutes, relating to theft,” quoting the Florida
RICO Act. Chapter 812 of the Florida Code contains a large number of theft-
related offenses, and the Appellants failed to properly allege which statutes JP
Morgan purportedly violated.
The district court relied on the basic theft statute, which provides:
(1) A person commits theft if he or she knowingly
obtains or uses, or endeavors to obtain or to use, the
property of another with intent to, either temporarily or
permanently:
(a) Deprive the other person of a right to the property or a
benefit from the property.
(b) Appropriate the property to his or her own use or to
the use of any person not entitled to the use of the
property.
Fla. Stat. § 812.014. The non-Florida Appellants failed to plead sufficient facts to
suggest that JP Morgan committed theft that would violate the Florida RICO Act.
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Indeed, the complaint alleges that some of the foreclosures are complete, and
others are ongoing. Those with complete foreclosures would be alleging the
completed offense of theft, and those with ongoing foreclosures would be more
properly alleging attempted theft. The complaint does not distinguish among these
individuals or identify the predicate offense being relied upon.
Additionally, the Appellants allege that the theft here was accomplished by
means of fraud. However, they have not alleged important facts to satisfy Rule 9
pleading, such as the dates on which specific documents were sent. See Brooks,
116 F.3d at 1380–81. Without alleging such critical facts, it is impossible to allege
a sufficient connection between Florida and the foreclosure proceeding to support a
Florida RICO claim based on theft. See, e.g., Lyons v. State, 711 So. 2d 71 (Fla. 2d
Dist. Ct. App. 1998) (determining that a defendant could be charged with grand
theft of money taken outside Florida when the intent was formed in Florida). In
order to determine whether the complaint alleged a crime that occurred partially in
Florida, the Appellants would need to show a direct connection in time and effect
from the creation of the document in Florida and the use of the document in a
foreclosure proceeding.
Finally, we must consider the federal offense of mail fraud. See 18 U.S.C. §
1341. The crime of mail fraud occurs when “a person (1) intentionally participates
in a scheme or artifice to defraud another of money or property, and (2) uses or
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‘causes’ the use of the mails or wires for the purpose of executing the scheme or
artifice.” United States v. Ward, 486 F.3d 1212, 1222 (11th Cir. 2007). The non-
Florida Appellants failed to argue before the district court that they alleged
sufficient facts to state a Florida RICO claim based on mail fraud. See Coal. for the
Abolition of Marijuana Prohibition, 219 F.3d at 1326 (noting that failure to argue
an issue before the district court is grounds for finding that it has been abandoned).
Even so, the Appellants have pleaded insufficient facts to place JP Morgan on
notice of mail fraud.
None of the Appellants has alleged either the date a particular document was
mailed or the locations or individuals responsible for mailing a document. See
Brooks, 116 F.3d at 1380–81. While these Appellants have alleged that a document
was generated or produced in Florida, it could have been mailed or transmitted to
the Appellants from another location outside Florida. Without such essential facts,
the non-Florida Appellants have not alleged sufficient facts to suggests that an
overt act associated with mail fraud occurred in Florida. See Bradley, 644 F.3d at
1253 (noting that venue is appropriate for certain federal offenses where an overt
act occurs). Although the Appellants attempt to rely upon general allegations
about JP Morgan’s practices, they have not alleged sufficient facts or produced
documentation to place JP Morgan on notice of either the content or time frame of
particular mailings to the Appellants in this case. See Durham v. Bus. Mgmt.
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Assocs., 847 F.2d 1505, 1511–12 (11th Cir. 1988) (explaining that a plaintiff may
satisfy Rule 9 by submitting affidavits discussing some of the mailings and
indicating that other mailings were sent over a period of years).
In sum, the Appellants failed to allege sufficient factual matter to support a
Florida RICO claim based on any of their predicate offenses. The district court
properly dismissed the claim.
Additionally, we also conclude that it was not error for the district court to
dismiss the non-Florida Appellants’ claims with prejudice. Dismissal with
prejudice is proper when a more carefully drafted complaint would not state a
claim for relief. See Ziemba v. Cascade, Int’l, Inc., 256 F.3d 1194, 1213 (11th Cir.
2001). After the action was removed, the Appellants amended their complaint on
three occasions. Moreover, Appellants’ counsel moved to file a second amended
complaint and represented to the district court that the Appellants would be adding
“significant additional facts [that] are directly relevant to [Appellants’] claims in
this action, including their claims for violations of the Florida . . . RICO Act.” We
find it implausible, given this representation to the district court and the number of
amended complaints filed in the case, that further pleading would rectify the many
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defects in the complaint. Thus, dismissal with prejudice was appropriate in this
case.15
V. Amendment of the Complaint
Finally, the Appellants contend that the district court should have given
them leave, once again, to amend the complaint. We review denial of a motion to
amend a complaint for abuse of discretion. Smith v. Fla. Dep’t of Corrs., 713 F.3d
1059, 1063 (11th Cir. 2013). However, a district court must generally freely allow
the parties to amend their pleadings. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.
227, 230, 9 L.Ed.2d 222 (1962).
The Appellants never requested leave to amend their complaint after JP
Morgan moved to dismiss the case. Instead, they responded to the motion, mainly
arguing for remand. The district court has no obligation to grant leave sua sponte
when counsel did not make such a request. Wagner v. Daewoo Heavy Indus. Am.
Corp., 314 F.3d 541, 542 (11th Cir. 2002). Even after the district court entered its
dismissals with prejudice, the Appellants never requested leave to file an amended
complaint that would correct the defects in the prior pleadings. Thus, the
Appellants are not entitled to further amendment of their complaint.
VI. CONCLUSION
15
We note that the district court dismissed the common law fraud claim without prejudice as to
all of the Appellants except the adjudicated Appellants. Although we would have been inclined
to dismiss this claim with prejudice as well based on the number of amended complaints filed,
neither party appealed that dismissal. Since that dismissal was not appealed, we do not disturb it
today.
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Upon thorough review of the record, we affirm the district court’s dismissal
of the entire case. We modify the dismissals for injunctive relief based on either
Rooker-Feldman or standing grounds to read “without prejudice,” but we affirm all
other dismissals made with prejudice.
AFFIRMED AS MODIFIED.
38