Glen Earl Claiborne, Sr. v. JP Morgan Chase Bank, NA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13676
Non-Argument Calendar
____________________
GLEN EARL CLAIBORNE, SR.,
Plaintiff-Appellant,
versus
JP MORGAN CHASE BANK NATIONAL ASSOCIATION, et al.,
Defendants,
JP MORGAN CHASE BANK, NA,
Defendant-Appellee.
____________________
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2 Opinion of the Court 22-13676
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-05542-SDG
____________________
____________________
No. 23-10439
Non-Argument Calendar
____________________
GLEN EARL CLAIBORNE,
Plaintiff-Appellant,
versus
JP MORGAN CHASE BANK NATIONAL ASSOCIATION, et al.,
Defendants,
JP MORGAN CHASE BANK, NA,
Defendant-Appellee.
____________________
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22-13676 Opinion of the Court 3
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-05542-SDG
____________________
Before W ILSON , J ORDAN , and L AGOA, Circuit Judges.
PER CURIAM:
Glen Earl Claiborne, Sr., proceeding pro se, appeals the dis-
trict court’s orders dismissing his claims against JP Morgan Chase
Bank, NA (Chase), granting summary judgment for Chase, setting
aside Chase’s default, and denying reconsideration. He argues, in
his initial brief, that the district court procedurally erred by failing
to continue proceedings while he obtained counsel and dealt with
poor health, and, in his reply brief, that the district court substan-
tively erred in dismissing certain claims, granting summary judg-
ment on others, and setting aside Chase’s default. After careful re-
view, we affirm.
I.
First, we turn to the continuance claim. Denial of a contin-
uance is reviewed for abuse of discretion and will not be disturbed
unless “arbitrary or unreasonable.” Hashwani v. Barbar, 822 F.2d
1038, 1040 (11th Cir. 1987) (per curiam). We find four factors par-
ticularly relevant for whether denying a continuance constitutes an
abuse of discretion: (1) the diligence of the party requesting a con-
tinuance; (2) the likelihood granting the continuance would satisfy
the need identified in the request; (3) inconvenience to the court,
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4 Opinion of the Court 22-13676
opposing party, and witnesses; and (4) harm to the party requesting
the continuance if it is not granted. Id.
Lack of counsel “does not afford a party an absolute right to
a continuance.” Arabian Am. Oil Co. v. Scarfone, 939 F.2d 1472, 1479
(11th Cir. 1991) (per curiam) (holding in the context of attorney’s
withdrawal). In such cases, “[t]he exercise of discretion by the trial
court will be disturbed only in extreme cases in which it clearly ap-
pears that the moving party was free of negligence.” Id. (quota-
tions omitted).
Here, assuming Claiborne’s requests for appointment of
counsel and various stays presented the continuance issue, the dis-
trict court did not abuse its discretion. Even without a stay,
Claiborne had nearly five years in which to retain an attorney, from
the very outset of which he recognized an attorney could be nec-
essary. A continuance at this point in the litigation will not likely
satisfy any alleged need. Furthermore, both the district court and
Chase would have been inconvenienced by a stay, requiring Chase
to remain indefinitely ready to defend a case that contains count-
less meritless motions. Although we recognize Claiborne’s health
issues, those periods of poor health over a five-year span cannot
overcome the extensive litigation history between the parties.
Based upon this record, we refuse to find that the district court’s
denial of a continuance was either arbitrary or unreasonable.
II.
Second, we address the substantive challenges. We have
held that “failure to raise an issue in an initial brief on direct appeal
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22-13676 Opinion of the Court 5
should be treated as a forfeiture of the issue.” United States v. Camp-
bell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc); see also Access Now,
Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[T]he
law is by now well settled in this Circuit that a legal claim or argu-
ment that has not been briefed before the court is deemed aban-
doned and its merits will not be addressed.”). This includes “argu-
ments raised for the first time in a pro se litigant’s reply brief.” Tim-
son v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam). We
will generally not review forfeited issues unless the issue is extraor-
dinary enough to excuse forfeiture and one of a limited set of ex-
ceptions is met. See Campbell, 26 F.4th at 873.
Pleadings by pro se litigants are to be liberally construed.
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per curiam).
However, pro se status does not give a “court license to serve as de
facto counsel for a party or to rewrite an otherwise deficient plead-
ing in order to sustain an action.” GJR Invs., Inc. v. Cnty. of Escambia,
132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (internal citations omitted). In
addition, pro se litigants are nevertheless required to follow proce-
dural rules. See Albra, 490 F.3d at 829.
Here, Claiborne has forfeited any challenge to the district
court’s decisions to set aside Chase’s default, dismiss Claiborne’s
intentional infliction of emotional distress and negligence claims,
and grant summary judgment against Claiborne’s attempted
wrongful foreclosure claim. Even liberally construing his initial
brief, he failed to raise these issues therein, especially not with
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more than “passing” or “perfunctory” remarks. We are not at lib-
erty to act as Claiborne’s counsel and rewrite his initial brief so that
it raises the merits of the district court’s decisions, nor excuse his
failure to follow standard procedural rules. While Claiborne raised
the merits in his reply brief and in his motion for sanctions, this is
insufficient to save them from forfeiture.1
AFFIRMED.
1 Because we deny the related procedural and substantive claims above,
Claiborne’s Motion for Judicial Notice Pursuant to O.C.G.A. § 24-2-201 and
O.C.G.A. § 50-13-8 in Support of Appeals is similarly DENIED. Additionally,
his Motion for Sanctions for Comparable Misconduct and Contempt is
DENIED.
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