Ed Orton v. Sandy Mathews, 11th Cir. (2014)

Case: 14-10043
Date Filed: 07/21/2014
Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10043
Non-Argument Calendar
________________________
D.C. Docket No. 7:13-cv-00515-RDP
ED ORTON,
Plaintiff-Appellant,
versus
SANDY MATHEWS,
BANK OF AMERICA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 21, 2014)
Before PRYOR, MARTIN, and COX, Circuit Judges.
PER CURIAM:
Case: 14-10043
Page: 2 of 8
Ed Orton, proceeding pro se, filed a complaint in the Circuit Court of

Pickens County, Alabama, to quiet title, pursuant to Ala. Code 6-6-540 and 6-6541, to a property located in Aliceville, Alabama, that he and his late wife had
purchased using a loan secured by a mortgage. He named Bank of America and
Sandy Mathews as defendants. He alleged that Bank of America, which notified
him that it had acquired the loan, held no valid interest in the property. And, he
alleged that Mathews had fraudulently induced him to grant her an interest in the
property.
Bank of America removed the action to federal court pursuant to
28 U.S.C. 1332 and 1441.

Bank of America filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss Ortons
claim against it on two grounds: First, Bank of America contended that Orton had
failed to plead sufficient facts to state a quiet title claim. Second, it contended that
Ortons claim failed as a matter of Alabama law. The district court agreed with
Bank of America on both grounds and granted its motion to dismiss. Mathews
never responded to the suit in any way. Yet the court dismissed Ortons claim
against Mathews because Orton failed to timely serve a summons and complaint.
The district court subsequently denied Ortons motion to vacate its dismissal.
On appeal, Orton challenges: (1) the district courts exercise of subject
matter jurisdiction over the case; (2) the district courts dismissal of his claim
against Bank of America; (3) the district courts order dismissing his claim as to
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Case: 14-10043
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Mathews; and (4) the district courts denial of his motions to vacate the order
dismissing his claim as to Mathews.
(1) Removal Jurisdiction
Orton argues on appeal that Bank of Americas removal of his suit to federal
court was improper because the district court lacked subject matter jurisdiction to
hear the case. Bank of America argues that the district court properly asserted
removal jurisdiction under 28 U.S.C. 1332 and 1441 because the parties were
completely diverse and the amount in controversy exceeded $75,000.
In a quiet title action, the amount in controversy for determining subject
matter jurisdiction is the value of the property. See Frontera Transp. Co. v.
Abaunza, 271 F. 199, 201 (5th Cir. 1921). We have said that where the plaintiff
seeks only declaratory and injunctive relief, it is well established that the amount
in controversy is measured by the value of the object of the litigation. Ericsson
GE Mobile Commcns, Inc. v. Motorola Commcns & Elecs., Inc., 120 F.3d 216,
218 (11th Cir. 1997) (quoting Hunt v. Washington State Apple Adver. Commn,
432 U.S. 333, 347, 97 S.Ct. 2434, 2443 (1977)). Bank of Americas removal
notice alleged the requisite amount in controversy and supported it with an
affidavit and exhibits. Compare Williams, 269 F.3d at 1319-20. In its notice of
removal, Bank of America alleged that the property at issue in this case was worth
Case: 14-10043
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far more than $75,000. Orton has neither disputed this fact nor has he disputed that
the amount in controversy exceeded $75,000.
In Wachovia Bank v. Schmidt, the Supreme Court held that, for the purposes
of diversity jurisdiction, a national bank is a citizen of the state designated in its
articles of association as its main office, and is not a citizen of each state in which
the bank has established branch operations. 546 U.S. 303, 313, 318, 126 S. Ct.
941, 948, 951-52 (2006); see also 28 U.S.C. 1348. Bank of America asserted
that the state designated as its main office in its articles of association was North
Carolina. It also alleged that Orton was a citizen of Alabama and Mathews was a
citizen of Florida. Orton has not disputed these allegations, and there does not
appear to be any information in the record that challenges these allegations.
Accordingly, on this record, the district court properly exercised subject matter
jurisdiction over Ortons suit.
(2)
Dismissal of Claim Against Bank of America
On appeal, Orton argues that he satisfied the pleading requirements for an

Alabama quiet title action, particularly since he alleged that he had peaceable
possession of the property and held color of title to it. He acknowledges that Bank
of America had been assigned his mortgage, and that at one time it held the note.
But he asserts that he can no longer tell who holds the note since Bank of America
has not produced it. In any event, he argues, based on authority from jurisdictions
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Case: 14-10043
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outside Alabama that the mortgage is void since it was assigned to Bank of
America after Bank of America became a holder of the note. He also argues that
the assignment of the mortgage to Bank of America was void for procedural
reasons, as the agent who signed it for the assignor was a robo signer and the
notary has since been convicted of grand theft, forgery, and tax evasion.
We review de novo a district courts dismissal of a complaint for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Speaker v. U.S. Dept of Health
and Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379
(11th Cir. 2010). We accept[] the factual allegations in the complaint as true and
construe[] them in the light most favorable to the plaintiff. Id. Pro se pleadings
are held to a less strict standard than pleadings filed by lawyers and are construed
liberally. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
A complaint must contain a short and plain statement of the claim showing
that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). Factual allegations in
a complaint must be enough to raise a right to relief above the speculative level . .
. on the assumption that all the allegations in the complaint are true. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007) (citation
omitted). A pleading that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949 (2009) (quotations omitted).
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The Supreme Court of Alabama has indicated that, to make out a valid claim
for a quiet title action, a plaintiff must show that he is in peaceable possession of
the land, either actual or constructive, at the time of the filing of the bill and that
there was no suit pending to test the validity of the title. Woodland Grove Baptist
Church v. Woodland Grove Community Cemetery Assn, Inc., 947 So.2d 1031,
1036, 1037-38 (Ala. 2006).
The court explained that one has constructive
possession of property when one has a legal estate in fee, and that actual
possession generally refers to the physical occupation of the land. Id. at 1038 n.7
(citations omitted).
The Alabama Court of Civil Appeals, the states intermediate-level appellate
court, has held that the assignee of a note secured by a mortgage need not have
been assigned the mortgage at the same time it was assigned the note in order to
exercise the right to foreclose the mortgage. Coleman v. BAC Servicing, 104 So.
3d 195, 20001 (Ala. Civ. App. 2012), cert. denied, Ala. 1111285 (2012).
Moreover, citing Ala. Code 35-10-12, the Alabama Court of Civil Appeals has
held that the holder of a note secured by a mortgage need not have been assigned
the mortgage in order to exercise the right of foreclosure in the mortgage. Perry v.
Fed. Natl Mortg. Assn, 100 So. 3d 1090, 109597 (Ala. Civ. App. 2012), cert
denied, Ala. 1111310 (2012). We have said that, in a diversity case governed by
state law, where the state supreme court has not addressed an issue, we are bound
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to adhere to decisions of the states intermediate appellate courts absent some

persuasive indication that the states highest court would decide the issue
otherwise. Provau v. State Farm Mut. Auto. Ins. Co., 772 F.2d 817, 820 (11th
Cir. 1985) (quotations omitted).
Here, Orton has failed to state a quiet title claim as to Bank of America, as
his allegations contradicted his general assertion that he was in peaceable
possession of the property and held color of title to it. Orton also failed to plead
sufficient facts to support his allegation that the assignment of the mortgage to
Bank of America was procedurally void. See Ala. Code 35-10-12; Perry, 100
So. 3d at 109597. Accordingly, the district court did not err in granting Bank of
Americas motion to dismiss.
(3)
Dismissal of Claim as to Mathews
Orton contends that the district courts dismissal of his claim against
Mathews and its denial of his motions to vacate its dismissal were erroneous. We
address each in turn.
We review de novo a district courts dismissal of a claim for lack of personal
jurisdiction due to improper service of process. See Vax-D Med. Techs., LLC v.
Texas Spine Med. Ctr., 485 F.3d 593, 59596 (11th Cir. 2007). When a federal
court is considering the sufficiency of process after removal, it does so by looking
to the state law governing process. Usatorres v. Marina Mercante Nicaraguenses,
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Case: 14-10043
Page: 8 of 8
S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985). Rule 4(i)(2)(A) of the Alabama
Rules of Civil Procedure provides that a plaintiff may request that the court clerk
deliver service of process by certified mail.
Here, the district courts initial
dismissal of Ortons claim against Mathews for insufficient service of process was
not erroneous. We agree with the district courts order. (Doc. 25).
We review a district courts denial of a Rule 60(b) motion for abuse of its
sound discretion. Aldana v. Del Monte Fresh Produce, N.A., Inc., 741 F.3d 1349,
1355 (11th Cir. 2014) (discussing Fed. R. Civ. P. 60(b)(6)); Stilwell v. Travelers
Ins. Co., 327 F.2d 931, 932 (5th Cir. 1964) (discussing Fed. R. Civ. P. 60(b)(2)).
The district court did not abuse its sound discretion in denying Ortons motions to
vacate.
And the district court adequately addressed why vacatur was not
warranted. (Doc. 30, 33). This result is softened by the fact that Orton can refile
his claim against Mathews in Alabama state court.
AFFIRMED.

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Case: 14-10043

Date Filed: 07/21/2014

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

Date Filed: 07/21/2014

Ed Orton, proceeding pro se, filed a complaint in the Circuit Court of

Bank of America removed the action to federal court pursuant to

28 U.S.C. 1332 and 1441.

Date Filed: 07/21/2014

Date Filed: 07/21/2014

Dismissal of Claim Against Bank of America

On appeal, Orton argues that he satisfied the pleading requirements for an

Date Filed: 07/21/2014

Date Filed: 07/21/2014

The court explained that one has constructive

Date Filed: 07/21/2014

to adhere to decisions of the states intermediate appellate courts absent some

Dismissal of Claim as to Mathews

Date Filed: 07/21/2014

Here, the district courts initial

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