Conrad Joseph James, Jr. v. Freedom Mortgage Corporation

USCA11 Case: 23-13039 Document: 31-1 Date Filed: 04/08/2024 Page: 1 of 8

[DO NOT PUBLISH]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: 2 of 8

2 Opinion of the Court 23-13039

Before LUCK, ANDERSON, and JULIE CARNES, 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: 3 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: 4 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: 5 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: 6 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: 7 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: 8 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.