Jay Liebman v. Deutsche Bank National Trust Company , 462 F. App'x 876 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 23, 2012
No. 11-10478
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:10-cv-22967-JLK
JAY LIEBMAN, et al.,
Plaintiffs-Appellants,
versus
DEUTSCHE BANK NATIONAL TRUST CO., et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 23, 2012)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Pro se plaintiff-appellants Jay and Andrea Liebman (the Liebmans) appeal
the dismissal of their complaint against Deutsche Bank, Ocwen Loan Servicing,
and a number of named individuals (collectively Deutsche Bank). The Liebmans
raise three arguments on appeal: (1) the district court lacked subject-matter
jurisdiction over this case; (2) the district court erred by dismissing their
complaint; and (3) the district court abused its discretion by denying their motion
for recusal and reconsideration. After a thorough review of the record, we affirm.
In July 2010, the Liebmans filed a civil complaint against Deutsche Bank in
state court as representatives of a putative class of similarly situated individuals,
alleging mortgage fraud and various other state-law claims, as well as violations of
42 U.S.C. §§ 1983 and 1985; Article I, § 10 of the U.S. Constitution; and the
Ninth and Fourteenth Amendments. The defendants removed the complaint to
federal court citing both federal-question and diversity jurisdiction. Thereafter,
the defendants moved to dismiss the complaint under Federal Rules of Civil
Procedure 8(a), 9, 12(b)(6), and 23(a)(4).
The district court dismissed the complaint without prejudice, giving the
Liebmans leave to file an amended complaint. Although the Liebmans filed a
document styled as an “Amended Complaint,” the filing challenged the removal of
the complaint to federal court, and was thus construed as a motion for remand.
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Thereafter, the district court issued a final order of dismissal, finding that
the Liebmans had not complied with the court’s order. The Liebmans then filed a
motion for recusal and reconsideration, asserting that the district court was biased
and that their complaint should be remanded to state court. The district court
summarily denied the motion. This is the Liebmans’ appeal.1
I.
We review de novo whether the district court had subject-matter jurisdiction
following removal. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 780-81
(11th Cir. 2005).
District courts have federal-question jurisdiction over civil actions arising
under the Constitution, laws, or treaties of the United States. Hill v. BellSouth
Telecomm., Inc., 364 F.3d 1308, 1314 (11th Cir. 2004) (quoting 28 U.S.C.
§ 1331). Whether a claim “arises under” federal law is determined by the
well-pleaded complaint rule, which provides for federal-question jurisdiction
when a federal question is presented on the face of the plaintiffs’ properly pleaded
complaint. Id. A district court may also exercise supplemental jurisdiction over
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We disagree with Deutsche Bank that there is no final order and that we therefore lack
appellate jurisdiction. “[W]here an order dismisses a complaint with leave to amend within a
specified period, the order becomes final (and therefore appealable) when the time period
allowed for amendment expires.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1260 (11th Cir.
2006) (citation omitted). In this case, the time to file an amended complaint had expired when
the court issued the final order of dismissal.
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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. A claim premised on federal-question
jurisdiction is removable without regard to the citizenship or residence of the
parties. 28 U.S.C. § 1441(b).
Here, the Liebmans’ complaint alleged violations of federal law by
Deutsche Bank, and therefore, the complaint was properly removed to federal
court pursuant to 28 U.S.C. § 1441(b). The district court was also entitled to
exercise its supplemental jurisdiction over the Liebmans’ state-law claims
pursuant to 28 U.S.C. § 1367.
II.
Under Fed. R. Civ. P. 41(b), “[i]f the plaintiff fails to . . . comply with [the
Rules of Civil Procedure] or a court order, a defendant may move to dismiss the
action or any claim against it.” Fed. R. Civ. P. 41(b). We review a Rule 41(b)
dismissal without prejudice for abuse of discretion. Gratton v. Great Am.
Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Although “dismissal is an
extraordinary remedy, dismissal upon disregard of an order, especially where the
litigant has been forewarned, generally is not an abuse of discretion.” Moon v.
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Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
Rule 8 requires that a complaint contain “a short and plain statement” of the
grounds for relief, and that each allegation be pleaded in a “simple, concise, and
direct” manner. Fed. R. Civ. P. 8(a)(2), (d)(1). The complaint must give the
defendants fair notice of the bases for relief and the grounds upon which the claim
rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). A pleading that uses just labels
and conclusions or a formulaic recitation of the elements of a cause of action will
not meet Rule 8(a)(2). Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Rather, to
survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (quotations and citations omitted).
We have routinely condemned “shotgun” pleadings. Davis v. Coca–Cola
Bottling Co. Consol., 516 F.3d 955, 979 & n.54 (11th Cir. 2008). A “shotgun
pleading” is a pleading that “incorporate[s] every antecedent allegation by
reference into each subsequent claim for relief or affirmative defense.” Wagner v.
First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006). Shotgun
pleadings make it “virtually impossible to know which allegations of fact are
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intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Trs. of
Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996).
Even construing the Liebmans’ complaint liberally, Alba v. Montford, 517
F.3d 1249, 1252 (11th Cir. 2008), our review confirms that the Liebmans have
filed what amounts to an improper shotgun pleading. The complaint named
numerous individual defendants in addition to several business entities. The
complaint alleged numerous violations of state and federal law, but did not
provide any explanation of how the defendants’ actions violated those laws. The
Liebmans also failed to allege why the purported violations entitled them to their
requested relief. Accordingly, the district court properly granted Deutsche Bank’s
motion to dismiss.
Moreover, the district court instructed the Liebmans to file an amended
complaint, curing these deficiencies. The Liebmans failed to comply with the
court’s instruction. The court was therefore permitted to dismiss the complaint for
failure to comply with its order. Byrne v. Nezhat, 261 F.3d 1075, 1129–34 (11th
Cir. 2001) (discussing shotgun pleadings and approving of dismissal as a remedy
when a party fails to cure the deficiency).
III.
We review a district court’s denial of motions for recusal and for
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reconsideration for an abuse of discretion. United States v. Bailey, 175 F.3d 966,
968 (11th Cir. 1999) (recusal motions); Corwin v. Walt Disney Co., 475 F.3d
1239, 1254 (11th Cir. 2007) (motions for reconsideration).
Under 28 U.S.C. § 455(a), a federal judge must disqualify himself if his
“impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Section
455(b) requires disqualification under specific circumstances, including situations
where a judge has a personal bias or prejudice concerning a party, has participated
as counsel in the matter, or has a financial interest in the matter. 28 U.S.C.
§ 455(b)(1), (2), (4). The judge’s bias or prejudice must be personal and
extrajudicial, and must derive from something other than what the judge learned
by participating in the case. United States v. Amedeo, 487 F.3d 823, 828 (11th
Cir. 2007). The standard under § 455 is an objective one, requiring the district
court to ask whether a disinterested observer, fully informed of the facts
underlying the grounds on which recusal was sought, would entertain a significant
doubt about the judge’s impartiality. Bolin v. Story, 225 F.3d 1234, 1239 (11th
Cir. 2000). As a general rule, a judge’s rulings in a case are not valid grounds for
recusal. Loranger v. Stierheim, 10 F.3d 776, 780 (11th Cir. 1994).
Here, the district court did not abuse its discretion in denying the
Liebmans’ motion for recusal because their arguments regarding the necessity of
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recusal rested solely on the district court’s judicial rulings, which are not valid
grounds for a recusal motion. Loranger, 10 F.3d at 780. We see no other
evidence in the record from which a reasonable observer could draw any doubt
about the judge’s impartiality. Story, 225 F.3d at 1239.
We therefore affirm the district court’s denial of the Liebmans’ motion for
recusal. Additionally, because recusal was the basis for the Liebmans’ motion for
reconsideration, and there were no grounds requiring recusal, the district court
properly denied the Liebmans’ motion for reconsideration.
AFFIRMED.
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