     Case: 13-20103       Document: 00512346332         Page: 1     Date Filed: 08/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 19, 2013

                                     No. 13-20103                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



TU NGUYEN,

                                                  Plaintiff-Appellant,
v.

BANK OF AMERICA, N.A.,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3158


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant, Tu Nguyen, proceeding pro se, sued Bank of America,
N.A., (“the Bank”), alleging wrongful foreclosure of his residential property (“the
Property”). For the following reasons, we AFFIRM the district court’s denial of
Nguyen’s motion to remand and its dismissal of his complaint.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 13-20103

                                        I.
      This is the third lawsuit that Nguyen has filed against the Bank to contest
the foreclosure of the Property located in Galveston County, Texas. After
Nguyen defaulted on his mortgage note, the Bank posted the Property for
foreclosure sale on January 3, 2012. In response, Nguyen filed suit in Texas
state court on December 22, 2011 (“First Lawsuit”) and received a temporary
restraining order (“TRO”). He asserted 16 state and federal law causes of action.
The Bank removed the First Lawsuit to federal court on the basis of diversity
jurisdiction. The district court dismissed the First Lawsuit after Nguyen and
the Bank agreed to dismiss the case with prejudice.
      On April 30, 2012, Nguyen sued the Bank in Texas state court (“Second
Lawsuit”), and the Bank again removed to federal court. In the Second Lawsuit,
Nguyen asserted nearly identical causes of action related to the First Lawsuit.
On July 18, 2012, the district court granted summary judgment in favor of the
Bank by dismissing the Second Lawsuit with prejudice on the ground that
Nguyen’s claims were barred under res judicata. We affirmed the district court’s
grant of summary judgment in favor of the Bank in Nguyen v. Bank of America,
N.A., No. 12-20573, 2013 WL 1153041, at *3 (5th Cir. Mar. 8, 2013).
      Undeterred, Nguyen filed the present matter in Texas state court on
September 13, 2012 (“Third Lawsuit”). In this action, he sought to quiet title of
the Property and a declaratory judgment. Following the Bank’s removal to
federal court, Nguyen filed a motion to remand, asserting that no federal
question jurisdiction existed, and that the Court lacked diversity jurisdiction due
to the “forum defendant rule.” The district court denied the motion to remand
and granted the Bank’s motion to dismiss by concluding that res judicata barred
Nguyen’s claim. In its order, the district court admonished Nguyen “that further
litigation of this dispute in the nature of a new suit may be met with severe



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                                  No. 13-20103

monetary sanctions, as further litigation would be wholly frivolous.” This appeal
followed.
                                        II.
      We review a district court’s grant of a motion to dismiss de novo.
Atchafalaya Basinkeeper v. Chustz, 682 F.3d 356, 357 (5th Cir. 2012) (per
curiam) (citation omitted). This court also reviews a denial of a motion to
remand de novo. Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d
793, 796 (5th Cir. 2007) (citation omitted). Because Nguyen is a pro se litigant,
this court “liberally construe[s]” his filings. Estelle v. Gamble, 429 U.S. 97, 106
(1976).
                                       III.
      Nguyen makes three arguments on appeal. First, he contends that the
district court erred in denying his motion to remand, as the district court did not
have original jurisdiction, and the forum defendant rule precluded the Bank’s
removal to federal court. Second, Nguyen asserts that the district court violated
his due process rights by denying him the opportunity to present evidence and
by not considering his amended response to the Bank’s motion to dismiss. Third,
he claims that the district court erred in granting the Bank’s motion to dismiss
on the grounds of res judicata. We conclude that Nguyen’s arguments are
unavailing.
                                        A.
      With respect to Nguyen’s first contention, we conclude that the district
court did not err in denying his motion to remand. A defendant may remove an
action to federal court if the court has subject-matter jurisdiction over the case.
See 28 U.S.C. § 1441(a). A federal court has subject-matter jurisdiction where
“the matter in controversy exceeds the sum or value of $75,000” and is between
“citizens of different States.” 28 U.S.C. § 1332(a). In the present matter, the
Bank’s Notice of Removal indicated that removal was based on diversity

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                                         No. 13-20103

jurisdiction, i.e., the Bank is a citizen of North Carolina,1 Nguyen is a citizen of
Texas, and the amount in controversy is $359,820.00, the value of the Property.2
Accordingly, the Bank properly removed the case, as the district court had
original jurisdiction under § 1332. Further, Nguyen’s forum defendant rule
argument is wholly inapplicable, as the Bank is not a citizen of Texas, and
Nguyen chose to sue in Texas state court. See Nguyen, 2013 WL 1153041, at *3
n.2.
                                                B.
         As to Nguyen’s second contention, we conclude that the district court did
not err. His amended response to the defendant’s motion to dismiss is included
in the record. Moreover, the district court’s order noted that it considered
evidence presented by Nguyen. The district court’s order specifically states,
               Before the Court is the plaintiff, Tu Nguyen’s motion
               for summary judgment (Dkt. No. 14), and motion for
               sanctions, the defendant, Bank of America’s (“BA”)
               cross-motion for summary judgment (Dkt. No. 16), and
               its motion to dismiss (Dkt. No. 7) and the various
               responses and replies to each of the other’s motions.
               The Court has reviewed these pleadings and
               determines that BA’s motion to dismiss should be
               granted. Therefore, the plaintiff’s motion for summary
               judgment and BA’s cross-motion for summary judgment
               need not be addressed and should be dismissed as moot.
               The plaintiff’s motion for sanctions is denied.




        1
        A national bank may be considered a citizen of “the State designated in its articles of
association as its main office.” Wachovia Bank, Nat’l Ass’n v. Schmidt, 546 U.S. 303, 318
(2006). The Bank designates Charlotte, North Carolina, as its main office, so it is a citizen of
North Carolina.
        2
         Nationstar Mortg. LLC v. Knox, 351 F. App’x 844, 848 (5th Cir. 2009) (“[W]hen the
validity of a contract or a right to property is called into question in its entirety, the value of
the property controls the amount in controversy.” (alteration in original) (citation omitted).


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                                        C.

       As to Nguyen’s third contention, we conclude that the district court did
not err in dismissing the case, as res judicata, or claim preclusion, “bars the
litigation of claims that either have been litigated or should have been raised in
an earlier suit.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th
Cir. 2005) (citation omitted). Claim preclusion exists where,
            (1) the parties in the subsequent action are identical to,
            or in privity with, the parties in the prior action; (2) the
            judgment in the prior case was rendered by a court of
            competent jurisdiction; (3) there has been a final
            judgment on the merits; and (4) the same claim or
            cause of action is involved in both suits. If a party can
            only win the suit by convincing the court that the prior
            judgment was in error, the second suit is barred.

Duffie v. United States, 600 F.3d 362, 372 (5th Cir. 2010) (citations omitted).
      Nguyen does not contest the first and second elements under the claim
preclusion doctrine but asserts that the third and fourth elements are not met.
He asserts that the prior lawsuits are not final judgments on the merits and that
his quiet title claim is a different claim as compared to other claims asserted in
his prior lawsuits.
      The First Lawsuit and Second Lawsuit are final judgments, as the district
court entered orders dismissing the actions with prejudice on February 21, 2012
and July 18, 2012, respectively. See Nguyen, 2013 WL 1153041, at *2 (noting
that the First Lawsuit was a final judgment on the merits, as the district court
entered an order dismissing with prejudice, and Nguyen neither challenged the
judgment nor tried to reopen the case). Moreover, although Nguyen did not
assert a quiet title action in the prior lawsuits, this claim is based on the “same
nucleus of operative facts,” concerning the foreclosure of the Property, and
therefore could have been previously asserted in the prior lawsuits. See id. at


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*3 (noting a breach of fiduciary duty claim that was asserted in the Second
Lawsuit could have been brought in the First Lawsuit, as both actions arose out
of the “same nucleus of operative facts”).
                                      IV.
      For the foregoing reasons, we AFFIRM the district court’s denial of
Nguyen’s motion to remand and its dismissal of his complaint. Nguyen is
WARNED that further frivolous litigation will result in the imposition of
monetary sanctions.




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