Conrad Joseph James, Jr. v. Freedom Mortgage Corporation

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13039
Non-Argument Calendar
____________________
CONRAD JOSEPH JAMES, JR.,
Plaintiff-Appellant,
versus
FREEDOM MORTGAGE CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:23-cv-03097-MHC
____________________
USCA11 Case: 23-13039 Document: 31-1 Date Filed: 04/08/2024 Page: 1 of 8

-- 1 of 8 --

2 Opinion of the Court 23-13039
Before L UCK , A NDERSON , and J ULIE C ARNES , Circuit Judges.
PER CURIAM:
Plaintiff Conrad James, proceeding pro se, appeals the district
court’s sua sponte dismissal of his complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) following a frivolity review. After a careful re-
view of the record and the briefing submitted by Plaintiff,1 we
AFFIRM.
BACKGROUND
On July 13, 2023, Plaintiff filed an application to proceed in
forma pauperis and a notice of removal in the district court for the
Northern District of Georgia. As an exhibit to the notice of re-
moval, Plaintiff attached a complaint he had filed against Defend-
ant Freedom Mortgage Corporation in the Gwinnett County,
Georgia Superior Court. See Conrad Joseph James, Jr. v. Freedom Mort-
gage Corp., Georgia case no. 23-A-01335-2. As best we can deter-
mine from the allegations made in and the exhibits attached to the
complaint, Plaintiff intended to assert defamation and fraud claims
against Defendant, the lienholder on his mortgaged residence in
Snellville, Georgia, related to Defendant’s foreclosure on the prop-
erty.
1 Defendant did not submit an appellate brief because the magistrate judge
stayed service of process in the case pending the frivolity review, and the case
subsequently was dismissed pursuant to the review.
USCA11 Case: 23-13039 Document: 31-1 Date Filed: 04/08/2024 Page: 2 of 8

-- 2 of 8 --

23-13039 Opinion of the Court 3
Plaintiff did not, in his notice of removal, set forth a statu-
tory basis for removing his Gwinnett County case to federal court.
He checked a box marked “federal question” in the “basis of juris-
diction” section of the civil cover sheet, but he did not identify any
legal basis to support the purported federal question. Nor was any
basis for asserting federal jurisdiction apparent in the state com-
plaint Plaintiff attached to the notice of removal.
Based on Plaintiff’s representations as to his income and ex-
penses, a magistrate judge granted his motion to proceed in forma
pauperis. The judge then submitted the case to the district court
for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). The
judge stayed service of process in the case pending the results of
the review.
Before the district court had an opportunity to complete the
frivolity review, Plaintiff filed an affidavit in which he claimed De-
fendant had defamed him by spreading rumors about his alleged
debt. Plaintiff also claimed in the affidavit that Defendant had used
deceptive debt collection practices in violation of 15 U.S.C. § 1611,
violated various IRS and other federal regulations, and committed
racketeering and fraud in violation of 18 U.S.C. §§ 1961 and 1341.
The district court subsequently determined in the frivolity
review that Plaintiff’s complaint should be dismissed because his
notice of removal was deficient as a matter of law. Citing the fed-
eral removal statute, 28 U.S.C. § 1441, the court first noted that the
statute allows removal only by a “defendant” named in a state
court complaint, not the plaintiff who chose to file the complaint
USCA11 Case: 23-13039 Document: 31-1 Date Filed: 04/08/2024 Page: 3 of 8

-- 3 of 8 --

4 Opinion of the Court 23-13039
in state court in the first instance. Second, the court took judicial
notice of the fact that Plaintiff’s Gwinnett County case was dis-
missed on May 1, 2023, and his appeal denied on July 12, 2023,
meaning that when Plaintiff filed his notice of removal on July 13,
2023, there was no longer a case pending in state court that could
be removed. Finally, the court determined that Plaintiff had not
established federal jurisdiction over any claims asserted in the com-
plaint he sought to remove. For all these reasons, the court con-
cluded that Plaintiff’s attempt to remove his complaint failed as a
matter of law and that his notice of removal should be dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff responded by filing a document titled “Notice of Es-
toppel, Affidavit, and Stipulation of Constitutional Challenge . . .
[and] Motion to Intervene with an Injunction.” To the extent
Plaintiff intended this document to be a motion, the district court
denied it, noting that the document was simply a list of various
provisions of the Georgia Constitution and a restatement of his
claim on removal that the court previously had rejected as defi-
cient.
While awaiting the district court’s ruling on the document
described above, Plaintiff appealed the dismissal of his notice of re-
moval. In support of the appeal, Plaintiff argues in his appellate
brief that the district court violated his due process rights under the
Georgia Constitution when it denied his “cease and desist” motion
and/or affidavit and when it held that his filing was frivolous with-
out providing a clear explanation. Further addressing the merits of
USCA11 Case: 23-13039 Document: 31-1 Date Filed: 04/08/2024 Page: 4 of 8

-- 4 of 8 --

23-13039 Opinion of the Court 5
his case, Plaintiff claims in his brief that Defendant breached its con-
tract with him and committed fraud by failing to credit Plaintiff’s
payment toward his mortgage. Relative to these issues, Plaintiff
proffers an expert witness to testify as to a mortgage fraud analysis
the expert prepared. As to the district court’s alleged error, Plaintiff
argues there is “insufficient evidence” to dismiss the dispute be-
tween himself and Defendant and that the court’s findings below
were erroneous pursuant to Federal Rule of Civil Procedure 52(a),
which applies to a civil action tried without a jury, and 5 U.S.C.
§ 706(2), which governs judicial review of agency action.
Plaintiff does not address in his appellate brief the basis for
the district court’s dismissal of his case: a clearly deficient notice of
removal. Accordingly, he has abandoned that issue. See United
States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (clarifying that
issues not raised in an initial brief on appeal are treated as forfeited,
and considered by this Court only in “extraordinary circum-
stances” not present here). For that reason, and because the district
court correctly dismissed Plaintiff’s case as frivolous under 28
U.S.C. § 1915(e)(2)(B), we affirm.
DISCUSSION
I. Standard of Review
We review the district court’s dismissal of Plaintiff’s com-
plaint as frivolous under 28 U.S.C. § 1915(e)(2)(B) for an abuse of
discretion. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). Such
an abuse of discretion occurs if the district court “makes an error
of law or makes a clearly erroneous factual finding.” Taveras v.
USCA11 Case: 23-13039 Document: 31-1 Date Filed: 04/08/2024 Page: 5 of 8

-- 5 of 8 --

6 Opinion of the Court 23-13039
Bank of Am., N.A., 89 F.4th 1279, 1285 (11th Cir. 2024) (quotation
marks omitted). As a pro se litigant, Plaintiff’s pleadings “are held
to a less stringent standard than pleadings drafted by [an] attorney[]
and will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998). But this leniency does
not give a court “license to serve as de facto counsel for a party, or
to rewrite an otherwise deficient pleading in order to sustain an
action.” GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369
(11th Cir. 1998) (citations omitted), overruled on other grounds by Ash-
croft v. Iqbal, 556 U.S. 662 (2009).
II. Analysis
Pursuant to 28 U.S.C. § 1915(e)(2)(B), a district court is re-
quired to dismiss an in forma pauperis case sua sponte if the court
determines that the case (1) is frivolous or malicious, (2) fails to
state a claim on which relief may be granted, or (3) seeks monetary
relief against a defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B). The district court dismissed Plaintiff’s in
forma pauperis case after concluding it was frivolous under
§ 1915(e)(2)(B)(i). A claim is frivolous for purposes of this provision
if it is “without arguable merit either in law or fact.” Bilal, 251 F.3d
at 1349.
The district court held that Plaintiff’s notice of removal was
meritless as a matter of law, and that dismissal was thus required
under § 1915(e)(2)(B)(i). As noted, Plaintiff abandoned any chal-
lenge to that holding he might otherwise have asserted on appeal
by failing to address the specific grounds for the court’s holding.
USCA11 Case: 23-13039 Document: 31-1 Date Filed: 04/08/2024 Page: 6 of 8

-- 6 of 8 --

23-13039 Opinion of the Court 7
See Campbell, 26 F.4th at 873. Accordingly, we affirm the district
court on the ground of abandonment.
We note also that the district court’s holding was correct.
The right to remove a case to federal court is “purely statutory and
therefore its scope and the terms of its availability are entirely de-
pendent” on the terms set out by Congress in the federal removal
statute. Global Satellite Commc’ns Co. v. Starmill U.K. Ltd., 378 F.3d
1269, 1271 (11th Cir. 2004) (quotation marks omitted). Further-
more, “because removal jurisdiction raises significant federalism
concerns,” the removal statute is construed strictly. City of Vestavia
Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (alter-
ation accepted). Plaintiff’s notice of removal clearly fails to meet
the plain language of the federal removal statute, which permits
“the defendant” in a civil action brought in state court, in certain
circumstances, to remove the action to the federal district court in
the “district and division embracing the place where such action is
pending.” See 28 U.S.C. § 1441(a) (emphasis added).
As the district court pointed out, the removing party here
was not the defendant in the state court action referenced in the
notice of removal but rather the plaintiff, and the action was no
longer pending when the notice of removal was filed. Thus, the
district court did not abuse its discretion when it determined that
the notice of removal was legally without merit and thus required
to be dismissed under § 1915(e)(2)(B)(i).2
2 Having decided that Plaintiff clearly did not satisfy the plain language of the
federal removal statute, we need not address the district court’s third reason
USCA11 Case: 23-13039 Document: 31-1 Date Filed: 04/08/2024 Page: 7 of 8

-- 7 of 8 --

8 Opinion of the Court 23-13039
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order dismissing Plaintiff’s complaint as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i).
for dismissing Plaintiff’s case—that is, his failure to allege an adequate ground
for asserting federal jurisdiction over the case.
USCA11 Case: 23-13039 Document: 31-1 Date Filed: 04/08/2024 Page: 8 of 8

-- 8 of 8 --