Gaff v. MSNI Advantage ( 2022 )

Case: 21-11079 Document: 00516537501 Page: 1 Date Filed: 11/08/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-11079 November 8, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Jackie Gaff, also known as Jackie Goff,
Plaintiff—Appellant,
versus
MSNI Advantage, L.P.; Karissa Happe Jones, also known as
Krissie; Tyler Happe; Main Street Associates,
Incorporated; Main Street Asset Solutions,
Incorporated; PHH Mortgage Corporation; PHH
Corporation; Ocwen Loan Servicing, L.L.C.; Ocwen
Financial Corporation; Sebring Capital Partners, L.P.;
U.S. Bank National Association; Bank of America, N.A.;
JP Morgan Chase Bank, N.A.; Ally Financial,
Incorporated; Ronald Happe; U.S. Bank National
Association, as Trustee, successor in interest to Bank of America
National Association, as Trustee, successor by merger to LaSalle
Bank National Association, as Trustee for Residential
Asset Mortgage Products, Inc. Mortgage Asset-Backed
Pass Through Certificates, Series 2007-RP1,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-644
Case: 21-11079 Document: 00516537501 Page: 2 Date Filed: 11/08/2022
No. 21-11079
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Jackie Gaff filed a pro se civil action against numerous defendants in
Texas state court raising various claims concerning a foreclosure sale of real
property located in Fort Worth, Texas. MSNI Advantage, L.P. filed a notice
of removal based on diversity jurisdiction and federal question jurisdiction.
The district court denied Gaff’s motion to remand and ultimately granted the
defendants’ motions to dismiss her third amended complaint with prejudice
for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6).
On appeal, Gaff first argues that the removal of the case to federal
court was improper because diversity jurisdiction did not exist, all defendants
did not consent to removal, and the district court should have abstained from
exercising jurisdiction under Younger v. Harris, 401 U.S. 37 (1971). The
district court did not err in finding that diversity jurisdiction existed as Gaff
was a citizen of Louisiana and all defendants were either individuals
domiciled in California or business entities that were incorporated and had
their principal places of business outside of Louisiana. See 28 U.S.C.
§ 1441(b)(2); Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000);
see also Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 572 (5th Cir. 2004).
In addition, the district court had federal question jurisdiction because Gaff’s
amended state court complaint alleged claims based on federal law. See
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Contrary to Gaff’s
argument, the defendants had not been served with her amended complaint
at the time the notice of removal was filed and, therefore, consent of all
defendants was not required to remove the case to federal court. See Miranti
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
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No. 21-11079
v. Lee, 3 F.3d 925, 929 (5th Cir. 1993). Further, the district court did not err
in refusing to abstain from exercising jurisdiction under Younger because
there was no ongoing state judicial proceeding. See Ankenbrandt v. Richards,
504 U.S. 689, 705 (1992).
In addition, Gaff argues that the district court should have remanded
the case to state court under the Rooker-Feldman 1 doctrine and that MSNI
Advantage did not transmit a complete and accurate record as required by 28
U.S.C. § 1446. Gaff raised these arguments in her motion to vacate, which
was filed more than 28 days after entry of judgment, and she did not file an
amended or new notice of appeal from the denial of this postjudgment
motion. We therefore do not have jurisdiction to review the denial of Gaff’s
motion to vacate and the arguments raised therein. See Fed. R. App. P.
4(a)(4)(B)(ii); Williams v. Chater, 87 F.3d 702, 705 (5th Cir. 1996).
To the extent Gaff challenges the district court’s jurisdiction based on
her contention that the defendants lacked standing because they falsified
documents and committed fraud on the court, this claim lacks merit as the
plaintiff is the party who must have standing to establish jurisdiction. See
Hollingsworth v. Perry, 570 U.S. 693, 704-05 (2013).
Gaff also contends that the district court erred in denying her motion
for entry of a default judgment. However, she was not entitled to a default
judgment as a matter of right, even if the defendants were technically in
default. See Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). Moreover,
because the defendants had not been properly served with her amended
complaint at the time the notice of removal was filed and because the
defendants were not unresponsive, this case does not present the type of
1
See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co.,
263 U.S. 413 (1923).
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extreme situation warranting the entry of a default judgment. See Sun Bank
of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989).
Accordingly, Gaff has not shown the district court abused its discretion in
denying her motion for default judgment. See Lewis, 236 F.3d at 767.
Also on appeal, Gaff contends that the district court erred in
dismissing her third amended complaint for failure to state a claim. The
district court dismissed Gaff’s complaint because the only well-pleaded
claims, which concerned fraudulent dealings around 2007 and an illegal
foreclosure in 2014, were not filed within the applicable limitations period
and therefore were not plausible. Although she mentioned a nonjudicial
foreclosure set for June 2, 2020 in her third amended complaint, the district
court did not err in finding that her complaint did not provide notice of a
claim concerning a June 2020 foreclosure. See Heinze v. Tesco Corp., 971 F.3d
475, 479 (5th Cir. 2020); see also Fed. R. Civ. P. 8(a). Gaff does not
identify any error in the district court’s determination that her claims
concerning fraudulent dealings in 2007 and the wrongful foreclosure in 2014
were time barred and, therefore, she has abandoned this issue on appeal by
failing to brief it adequately. See Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). The district court also did not err
in rejecting Gaff’s argument that the limitations period should be equitably
tolled, as she did not show that she was “actively misled by the defendant
about the cause of action or [was] prevented in some extraordinary way from
asserting [her] rights.” Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th
Cir. 2002). In addition, Gaff has not shown that the district court failed to
consider any specific exhibits, nor has she explained how the court’s alleged
failure to consider specific exhibits affected its decision.
Gaff also maintains that the defendants committed fraud on the court.
As to her stand-alone claims of fraud, the district court’s determination that
Gaff’s third amended complaint failed to state a claim was based solely on the
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No. 21-11079
allegations made in that complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013). Therefore, any
documents submitted by the defendants did not have any bearing on the
district court’s determination that Gaff’s complaint failed to state claim a
upon which relief may be granted. See Iqbal, 556 U.S. at 678; Rogers, 709 F.3d
at 407. As to her contention that the defendants committed fraud on the
court, see Fed. R. Civ. P. 60(b)(3), (d)(3), Gaff raised this claim in her
motion to vacate. As explained above, this court’s jurisdiction does not
extend to a review of that ruling. See Fed. R. App. P. 4(a)(4)(B)(ii);
Williams, 87 F.3d at 705. Likewise, this court does not have jurisdiction to
review Gaff’s claim, presented in her motion to vacate, that the district court
judge was biased and should have recused himself. See Fed. R. App. P.
4(a)(4)(B)(ii); Williams, 87 F.3d at 705.
In addition, Gaff challenges the district court’s failure to order the
defendants to respond to her requests for admission. However, Gaff was not
entitled to discovery prior to the district court’s ruling on whether her claim
should be dismissed pursuant to Rule 12(b)(6). See Sw. Bell Tel., LP v. City
of Houston, 529 F.3d 257, 263 (5th Cir. 2008). Therefore, she has not shown
that the district court’s discovery ruling, or lack thereof, was arbitrary or
clearly unreasonable. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,
817 (5th Cir. 2004).
For the first time on appeal, Gaff argues that her constitutional rights
were violated by the wrongful seizure of her property, the nonjudicial
foreclosure without notice, and the district court’s order concerning her
requests for admission. This court will generally not consider a new claim
raised for the first time on appeal in a civil action. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). We therefore will not consider
these claims. See id.5
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For these reasons, the district court’s judgment is AFFIRMED.
Gaff’s motions for judicial notice are DENIED.
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