     Case: 12-10623       Document: 00512327679         Page: 1     Date Filed: 07/31/2013




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

                                                                            FILED
                                                                            July 31, 2013

                                     No. 12-10623                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



COURTNEY D. ALSOBROOK,

                                                  Plaintiff-Appellant
v.

GMAC MORTGAGE, L.L.C.; EXECUTIVE TRUSTEE SERVICES, L.L.C.,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:11-cv-00603-M


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       We sua sponte withdraw our previous opinion in this case, 2013 WL
3822099 (July 25, 2013), and substitute the following opinion.
       In this case, Appellant Courtney D. Alsobrook appeals the district court’s
grant of summary judgment dismissing her wrongful foreclosure suit against
Appellees GMAC Mortgage, L.L.C. and Executive Trustee Services, L.L.C. We
affirm the district court’s judgment.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10623

                 FACTUAL AND PROCEDURAL BACKGROUND1
       In 2004, Alsobrook purchased real property located in Rockwall, Texas.
Financing the purchase through a $161,500 loan, Alsobrook executed an
adjustable rate note and a deed of trust encumbering the property. In October
2009, the deed of trust was assigned to Bank of New York Trust Company, N.A.,
as successor to JP Morgan Chase Bank, N.A., as Trustee for RAMP 2004RS3 c/o
Residential Funding Corp. Attorney in Fact (“RFC”). GMAC Mortgage, L.L.C.
(“GMAC”) has been the servicer of the loan since its inception.
       After a lengthy period of loan-payment delinquency beginning in 2005,
Alsobrook made a $9,000 payment to GMAC on October 22, 2010. This payment
made Alsobrook current on her obligations through August 2010, but not on her
September 2010 through November 2010 payment obligations.                            Thus, on
November 2, 2010, GMAC sent Alsobrook a notice of default and intent to
accelerate. In response, Alsobrook made a $6,446.57 payment on November 4,
2010 to bring her payments current through December 2010. On November 5,
2010, however, Alsobrook’s October payment of $9,000 was returned for
insufficient funds, and GMAC reversed the payment, leaving Alsobrook six
months delinquent. GMAC, on behalf of RFC, sent a notice of acceleration to
Alsobrook on December 28, 2010. Alsobrook failed to pay the amount due, and,
on January 13, 2011, she was sent a notice of substitute trustee’s sale, which
scheduled a foreclosure sale of the Rockwall property for March 1, 2011.
       On February 28, 2011, Alsobrook filed a petition in state court to enjoin
the March 1, 2011 foreclosure sale. On March 24, 2011, Appellees removed the
case to federal court alleging diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a). Appellees filed a motion for summary judgment on October 12, 2011,


       1
        Like the district court, because Alsobrook failed to file a response to Appellees’ motion
for summary judgment, we rely primarily on the facts offered by Appellees in support of their
motion. See Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).

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                                  No. 12-10623

and Alsobrook failed to file a response to that motion notwithstanding the
district court’s grant of an extension to do so. On April 13, 2012, Magistrate
Judge Paul D. Stickney issued a report, in which he recommended granting
Appellees’ summary judgment motion.          Alsobrook failed to object to the
magistrate judge’s report. On May 9, 2012, the district court accepted the
magistrate judge’s findings and recommendation, and granted Appellees’ motion
for summary judgment. This timely appeal followed.
                           STANDARD OF REVIEW
      If a party fails to object to a magistrate judge’s report, this court reviews
the magistrate judge’s factual findings and legal conclusions for plain error.
Salts v. Epps, 676 F.3d 468, 474 (5th Cir. 2012) (citing Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc)). To prove plain error,
a party “must show that (1) there is error; (2) the error was clear and obvious,
not subject to reasonable dispute; and (3) the error affected his substantial
rights.” United States v. Hebron, 684 F.3d 554, 558 (5th Cir. 2012).
      Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). If the movant satisfies his “initial
responsibility” of showing “the absence of a genuine issue of material fact,” the
burden shifts to the non-movant to identify “specific facts showing that there is
a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)
(internal quotation marks omitted). If a non-movant fails to respond to a motion
for summary judgment, it is improper to grant the motion based solely on the
non-movant’s failure to respond. John v. Louisiana, 757 F.2d 698, 709 (5th Cir.
1985). Instead, summary judgment should only be granted in such a case if “the
moving party discharges its initial burden” of showing that there is no genuine
dispute as to any material fact. Id.



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                                   No. 12-10623

                                    ANALYSIS
I.    Diversity Jurisdiction
      A district court has original jurisdiction over a civil action “where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1).
“The diversity statute requires ‘complete diversity’ of citizenship,” meaning that
“[a] federal court cannot exercise diversity jurisdiction if one of the plaintiffs
shares the same citizenship as any one of the defendants.” Stiftung v. Plains
Mktg., L.P., 603 F.3d 295, 297 (5th Cir. 2010) (internal quotation marks
omitted). The citizenship of a limited liability company such as Appellee
Executive Trustee Services, L.L.C. (“ETS”) is determined by the citizenship of
all of its members. See Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080–81
(5th Cir. 2008).
      Alsobrook argues for the first time on appeal that the district court lacked
jurisdiction because Alsobrook and ETS were both citizens of Texas. Specifically,
Alsobrook speculates that, because ETS has conducted business and has
maintained an office in Texas for years, ETS “may” have its principal place of
business in Texas. Based on the record before him, however, Magistrate Judge
Stickney held that complete diversity was “undisputed” because “Plaintiff is a
resident of Rockwall County, Texas and [ETS and GMAC] are residents of the
states of Delaware and Michigan.” R. at 410. The record reflects that ETS’s sole
member is a citizen of Delaware and Michigan. Alsobrook points to no evidence
in the record that contradicts the magistrate judge’s findings, nor does she
explain how ETS’s activity in Texas establishes the citizenship of its member in
Texas. Accordingly, reviewing the magistrate judge’s findings of fact and legal
conclusions for plain error, and identifying no record evidence revealing any such




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                                       No. 12-10623

error, we hold that the magistrate judge did not err in finding complete diversity
between the parties.2
II.    Summary Judgment
       In his report, Magistrate Judge Stickney recommended dismissing all of
Alsobrook’s causes of action based on the evidence accompanying Appellees’
summary judgment motion. On appeal, Alsobrook asserts that the magistrate
judge’s findings and conclusions were erroneous. Alsobrook does not, however,
argue that evidence in the district court record shows that the magistrate judge
plainly erred in concluding that no genuine issue of material fact existed with
respect to her claims. Instead, Alsobrook alleges that evidence uncovered during
her April 12, 2012 deposition “could have provided evidence to controvert the
bases for Defendants’ motions for summary judgment.” Br. of Appellant 12.
       This court’s review of a district court’s grant of summary judgment is
bound “by the record as it existed at the time summary judgment was granted.”
Moore v. Miss. Valley State Univ., 871 F.2d 545, 549 (5th Cir. 1989). We find
that Appellees’ summary judgment motion, to which Alsobrook failed to respond,
contains evidence clearly showing the absence of a genuine issue of material
fact.3 Furthermore, even if we were to consider the content of her deposition,
Alsobrook presents no evidence that undermines the magistrate judge’s findings
of fact or legal conclusions. Alsobrook thus woefully fails to show error, plain or
otherwise.

       2
         Alsobrook does not contest the magistrate judge’s conclusion that § 1332’s $75,000
amount-in-controversy requirement was met. We nonetheless note that Alsobrook seeks to
enjoin foreclosure of property valued at $132,460, and also seeks damages that, based on her
equity in the property, would exceed $75,000.
       3
          Alsobrook claims the district court erred in ruling on Appellees’ summary judgment
motion before her deposition. She neglects to point out, however, that she failed to appear for
a scheduled deposition in October 2011, which was well before her response deadline, and
Appellees were able to depose her in April 2012 only after the court granted Appellees’ motion
to compel a deposition. Furthermore, the district court granted Alsobrook additional time to
file a response, but she still failed to schedule her deposition before the extended deadline.

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                             No. 12-10623

                            CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment.




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