Scott W. Rivera v. Bank of America, N.A.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2868
___________________________
Scott W. Rivera
Plaintiff - Appellant
v.
Bank of America, N.A.
Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 13, 2021
Filed: April 9, 2021
____________
Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Following a scheduled foreclosure sale of his residence by Bank of America,
N.A. (BANA), Appellant Scott Rivera sought and received a temporary restraining
order in Missouri state court to halt the sale. BANA canceled the foreclosure sale
and removed the action to federal court, where Rivera filed an amended complaint
alleging claims of wrongful foreclosure, violation of the Missouri Merchandising
Practices Act (MMPA), and negligent misrepresentation. BANA sought dismissal

-- 1 of 8 --

-2-
of the amended complaint for failure to state a claim, which the district court1
granted. The district court also denied Rivera’s request for leave to file an amended
complaint and entered an order dismissing the case with prejudice. Rivera now
appeals, asserting that the case is moot, or in the alternative, that the district court
erroneously dismissed his complaint and should have granted him leave to file an
amended complaint. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
In March 2011, Rivera obtained a $310,815 home loan from BANA, which
was secured by a mortgage on his St. Louis area residence. In February 2018, after
Rivera fell behind on his payments, Rivera and BANA entered into a loan
modification agreement, which would have allowed Rivera to cure his default.
However, Rivera never made any payments pursuant to the loan modification
agreement, and BANA initiated foreclosure proceedings. In early August 2018,
BANA notified Rivera of the foreclosure sale, scheduled for September 4, 2018. On
August 13, 2018, Rivera contacted BANA and asked to be considered for another
loan modification. Rivera also submitted supporting documentation. On August 28,
2018, BANA notified Rivera that its underwriters would not be considering Rivera’s
new loan modification because it should not have been offered to him in the first
place. The foreclosure sale thus remained scheduled for Tuesday, September 4,
2018, the day following the Labor Day holiday.
On Friday, August 31, 2018, the last business day before the scheduled
foreclosure sale, Rivera filed a pro se action in the Circuit Court of St. Louis County,
Missouri. Rivera submitted a six-page handwritten filing, styled as a Motion for
Temporary Restraining Order, which requested that the court enter an order halting
the foreclosure sale scheduled for September 4, 2018. In his pleading, Rivera stated
that he was likely to “succeed on the merits in any hearing” because, while he had
1 The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.

-- 2 of 8 --

-3-
fallen behind on his payments, BANA misrepresented to him that he was eligible for
loan modification assistance and notified him that he was not eligible only when it
would be too late for Rivera to cure any default before the scheduled sale. R. Doc.
1-1. That same day, the St. Louis County Circuit Court entered an ex parte
temporary restraining order barring BANA from conducting the foreclosure sale
until after a hearing the court set for September 12, 2018.
On September 11, 2018, BANA removed the action to federal court based on
diversity jurisdiction. In January 2019, BANA moved to dismiss the complaint and
moved to dissolve the temporary restraining order. On January 29, 2019, the district
court dissolved the temporary restraining order and ordered Rivera to respond to the
motion to dismiss. Instead of responding to BANA’s motion to dismiss, Rivera, now
represented by counsel, sought and obtained leave to file an amended complaint.
The amended complaint alleged claims of wrongful foreclosure, violations of the
MMPA, and negligent misrepresentation.
BANA then filed a motion to dismiss the amended complaint, which the
district court granted. The district court concluded that Rivera failed to state a claim
for wrongful foreclosure because the foreclosure sale had not taken place and
Missouri law does not recognize a claim for attempted wrongful foreclosure; Rivera
failed to state a claim under the MMPA because negotiations for a loan modification
fall outside of the original loan agreement that would be subject to the MMPA; and
Rivera failed to state a claim for negligent misrepresentation because he made no
allegations to support the inference that BANA failed to exercise reasonable care in
its communications with him regarding the loan modification application. The
district court also denied Rivera’s purported request for leave to file a second
amended complaint because Rivera’s request was made only in a two-sentence
paragraph in his response in opposition to BANA’s motion to dismiss, not as a proper
motion for leave to amend, and he failed to provide an explanation of the substance
of the proposed amendment. The district court entered judgment against Rivera,
dismissing his claims with prejudice. Rivera now appeals, asserting that the district
court did not have jurisdiction to decide BANA’s motion to dismiss because, when

-- 3 of 8 --

-4-
the district court dissolved the temporary restraining order on January 29, 2019, there
was no longer any live case or controversy because the entirety of the removed action
consisted of the temporary restraining order. In the alternative, Rivera asserts that
he stated a claim for negligent misrepresentation2 and that the district court should
have granted him leave to again amend his complaint.
II.
“Because the existence of a live case or controversy is a constitutional
prerequisite to federal court jurisdiction, we begin with [Rivera’s] claim that the case
is moot.” McGehee v. Neb. Dep’t of Corr. Servs., 987 F.3d 785, 787 (8th Cir.
2021).3 Article III of the Constitution requires the existence of a case or controversy
at all stages of litigation. “‘[W]hen the issues presented are no longer live or the
parties lack a cognizable interest in the outcome,’ a case or controversy under Article
III no longer exists because the litigation has become moot.” Brazil v. Ark. Dep’t
of Hum. Servs., 892 F.3d 957, 959 (8th Cir. 2018) (alteration in original) (citation
omitted). “If an issue is moot in the Article III sense, we have no discretion and
must dismiss the action for lack of jurisdiction.” Ali v. Cangemi, 419 F.3d 722, 724
(8th Cir. 2005) (en banc). Rivera asserts that the entirety of this case consisted only
of his motion for a temporary restraining order and the accompanying temporary
restraining order the St. Louis County Circuit Court granted. Thus, according to
2 Rivera does not offer any argument regarding the merits of the dismissal of
the wrongful foreclosure and MMPA claims for failure to state a claim.
3 BANA asserts that Rivera waived his argument that this case is moot by not
arguing it before the district court in opposition to BANA’s motion to dismiss.
However, “[m]ootness goes to the very heart of Article III jurisdiction, and any party
can raise it at any time. Indeed, it would be the Court’s duty to raise and decide the
issue on its own motion, if facts suggesting mootness should come to its attention,
even if both parties were silent on the subject.” In re Smith, 921 F.2d 136, 138 (8th
Cir. 1990).

-- 4 of 8 --

-5-
Rivera, when the district court dissolved the temporary restraining order, the case
became moot because there was no longer any live controversy, and this Court must
order this action dismissed without prejudice. We disagree.
First, we construe Rivera’s pro se motion for a temporary restraining order as
a petition initiating a civil action against BANA under Missouri law. Under
Missouri law, a party who seeks a temporary restraining order is required to “support
that request with a verified petition or affidavit reciting the specific facts that
support” that petition. Mo. R. Civ. P. 92.02. Although Rivera filed only what was
styled as a motion for a temporary restraining order, we are satisfied that when giving
the pro se pleading the appropriate liberal construction, it was both a motion for a
temporary restraining order and a petition, as it sought the relief of a temporary
restraining order while also providing allegations about BANA’s alleged wrongful
conduct giving rise to the foreclosure sale. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (“A document filed pro se is ‘to be liberally construed,’ and ‘a
pro se complaint, however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.’” (citations omitted)). The pleading was
accepted as adequate by a St. Louis County Circuit Court Judge and any other
construction of Rivera’s filing would be inconsistent with the Missouri Rules of
Civil Procedure, which require a petition to accompany any motion for a temporary
restraining order.
Second, Rivera’s conduct throughout the course of litigation amounts to an
acknowledgement that his filing before the St. Louis County Circuit Court was both
a motion and a petition. After BANA removed the action to federal court and filed
a motion to dismiss, Rivera sought leave to file an amended complaint. This request
and the accompanying amended complaint demonstrate that Rivera understood that
his original filing in St. Louis County Circuit Court was in fact a petition, and not,
as he alleges, solely a motion for a temporary restraining order. Further, Rivera did
not contend at any point in the proceedings, including after the district court
dissolved the temporary restraining order that the entire civil action consisted of only
the temporary restraining order. Quite simply, the parties understood Rivera’s initial

-- 5 of 8 --

-6-
filing to be both a motion and petition, and they both proceeded through litigation
with this understanding in mind.4 That Rivera now tries to avoid dismissal with
prejudice by asserting that he did not ever file a petition is simply inconsistent with
the entire course of proceedings. We thus conclude that when the district court
dissolved the temporary restraining order, a live case and controversy remained in
the form of Rivera’s claims of wrongful foreclosure, violation of the MMPA, and
negligent misrepresentation. The case is thus not moot, and the district court
properly considered BANA’s motion to dismiss for failure to state a claim.
Rivera next asserts that, even if the claims were not moot, the district court
improperly dismissed his negligent misrepresentation claim for failure to state a
claim. “We review de novo the grant of a motion to dismiss. We accept ‘as true the
complaint’s factual allegations and grant[] all reasonable inferences to the
non-moving party.’” Park Irmat Drug Corp. v. Express Scripts Holding Co., 911
F.3d 505, 515 (8th Cir. 2018) (alteration in original) (citations omitted). A claim for
negligent misrepresentation under Missouri law, which the parties agree governs this
diversity action, requires a plaintiff to allege
(1) the speaker supplied information in the course of his business; (2)
because of the speaker’s failure to exercise reasonable care, the
information was false; (3) the information was intentionally provided
by the speaker for the guidance of limited persons in a particular
business transaction; (4) the hearer justifiably relied on the information;
and (5) due to the hearer’s reliance on the information, the hearer
suffered a pecuniary loss.
4 Rivera argues that BANA’s failure to file a responsive pleading within 21
days of removal demonstrates that BANA did not construe Rivera’s state court filing
as a petition. However, Rivera filed no motion for default after BANA purportedly
failed to file a responsive pleading, nor did he ever raise the issues in opposition to
BANA’s first motion to dismiss. Because Rivera raises the issue for the first time
on appeal, we deem it waived. See Kosulandich v. Survival Tech., Inc., 997 F.3d
431, 433 (8th Cir. 1993).

-- 6 of 8 --

-7-
Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 134 (Mo. 2010)
(en banc).
In opposition to BANA’s motion to dismiss, Rivera argued that he stated a
claim because BANA both owed Rivera a duty of care and failed to exercise
reasonable care in informing its agents about its decision not to consider Rivera’s
loan modification request. The district court rejected this argument, concluding
Rivera’s allegations failed to raise a plausible inference that BANA did not act with
reasonable care. Now, on appeal, Rivera asserts for the first time that a claim for
negligent misrepresentation lies where the alleged statement containing the
misrepresentation was within the speaker’s control and that he stated a claim by
alleging that BANA falsely represented it would timely process his loan
modification application. Because Rivera did not raise this argument before the
district court in opposition to BANA’s motion to dismiss, we consider it waived.
See Kosulandich, 997 F.3d at 433. The district court thus did not err in dismissing
Rivera’s negligent misrepresentation claim for failure to state a claim.
Rivera finally asserts that the district court erroneously denied his request for
leave to file another amended complaint. The “decision whether to allow a party to
amend [his] complaint is left to the sound discretion of the district court and should
be overruled only if there is an abuse of discretion.” Bell v. Allstate Life Ins. Co.,
160 F.3d 452, 454 (8th Cir. 1998). Under Rule 15(a) of the Federal Rules of Civil
Procedure, a party is entitled to amend his complaint one time as a matter of course
within specified time frames. After this, “a party may amend its pleading only with
the opposing party’s written consent or the court’s leave. The court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Rivera asserts the
district court abused its discretion in denying his request because under Rule 15,
“[t]he court should freely give leave when justice so requires.” However, the district
court denied Rivera leave to amend because Rivera failed to file a proper motion or
provide an explanation of what his proposed amendment would contain. Instead,
Rivera offered only a conclusory request in his response in opposition to BANA’s
motion to dismiss. We have previously held that a district court did not abuse its

-- 7 of 8 --

-8-
discretion by denying a request for leave to amend a complaint when the request was
raised in a single sentence in response to a motion to dismiss and the party made no
motion for leave nor attempted to explain the substance of the proposed amendment.
See Misischia v. St. John’s Mercy Health Sys., 457 F.3d 800, 805 (8th Cir. 2006).
The same scenario occurred here: Rivera made a two-sentence request for leave to
amend his complaint in response to BANA’s motion to dismiss and did not make
any other effort to move for or explain why he was entitled to such leave or explain
what his proposed amendment would contain. On this record, we conclude that the
district court did not abuse its discretion in denying Rivera leave to again amend his
complaint.
III.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________

-- 8 of 8 --