             Case: 15-10082    Date Filed: 09/16/2015   Page: 1 of 7


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-10082
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 3:10-cv-00423-MMH-PDB

ALONZO BEEPOT,
JOANNE BEEPOT,

                                                            Plaintiffs-Appellants,

                                       versus

JP MORGAN CHASE NATIONAL
CORPORATE SERVICES, INC.,

                                                             Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (September 16, 2015)

Before MARCUS, WILSON and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Alonzo and Joanne Beepot, proceeding pro se, appeal the district court’s

orders dismissing their complaint for failure to state a claim and denying their
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subsequent Fed.R.Civ.P. 59(e) motion. The Beepots, two former homeowners,

were involved in a state foreclosure action brought against them by JPMorgan

when they filed this suit, alleging that JPMorgan had failed to comply with the

Truth in Lending Act, 15 U.S.C. § 1601 (“TILA”) and Real Estate Settlement

Procedures Act, 12 U.S.C. § 2601 (“RESPA”); that JPMorgan had breached a

fiduciary duty, a contract, and an implied covenant of good faith and fair dealing

by fraudulently inducing them to enter into a mortgage agreement knowing they

would be unable to pay, and by failing to make proper disclosures as required by

law; and that they were entitled to quiet title to their property. The district court

held that their claims were barred by res judicata. On appeal, they argue that: (1)

the district court erred in denying their motion for a clerk’s entry of default and a

default judgment; (2) the district court erred in relying on res judicata to dismiss

their suit; and (3) the district court abused its discretion by denying their motion to

alter or amend the judgment. After careful review, we affirm.

      We review the denial of a motion for default judgment for abuse of

discretion. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316

(11th Cir. 2002). We also review the denial of a motion to alter or amend a

judgment for abuse of discretion. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.

2007).   “A district court abuses its discretion if it applies an incorrect legal

standard, applies the law in an unreasonable or incorrect manner, follows improper


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procedures in making a determination, or makes findings of fact that are clearly

erroneous.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir.

2014) (quotation omitted).     We review the district court’s application of res

judicata de novo. Kizzire v. Baptist Health Sys., Inc. 441 F.3d 1306, 1308 (11th

Cir. 2006). Where the district court’s judgment is based on multiple, independent

grounds, “an appellant must convince us that every stated ground for the judgment

against him is incorrect.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,

680 (11th Cir. 2014).     Accordingly, “[w]hen an appellant fails to challenge

properly on appeal one of the grounds on which the district court based its

judgment, he is deemed to have abandoned any challenge of that ground, and it

follows that the judgment is due to be affirmed.” Id.

      First, we are unpersuaded by the Beepots’ claim that the district court abused

its discretion by refusing to enter a default judgment against JPMorgan. Generally,

a defendant must respond to a pleading within 21 days after being served with the

summons and complaint. Fed.R.Civ.P. 12(a)(1)(A)(i). A plaintiff may, however,

request that a defendant waive service of process, and the defendant must have at

least 30 days after the request was sent to return the waiver.          Fed.R.Civ.P.

4(d)(1)(F). A defendant who returns such a waiver “need not serve an answer to

the complaint until 60 days after the request was sent.” Fed.R.Civ.P. 4(d)(3).




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When the court denies a motion to dismiss, a party must answer within 14 days

“[u]nless the court sets a different time.” Fed.R.Civ.P. 12(a)(4).

      The Federal Rules of Civil Procedure require the district court to “find the

facts specially and state its conclusions of law separately” in any action “tried on

the facts without a jury or with an advisory jury.” Fed.R.Civ.P. 52(a)(1). “The

court is not required to state findings or conclusions when ruling on a motion under

Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.”

Fed.R.Civ.P. 52(a)(3). The Federal Rules also provide that “[w]hen a party against

whom a judgment for affirmative relief is sought has failed to plead or otherwise

defend, and that failure is shown by affidavit or otherwise, the clerk must enter the

party’s default.” Fed.R.Civ.P. 55(a). In that situation, the court may enter a

default judgment upon application of the other party. Fed.R.Civ.P. 55(b)(2).

      The record before us reveals that JPMorgan never defaulted. The district

court struck the Beepots’s initial complaint before 21 days had elapsed, so

JPMorgan did not default by failing to respond to that complaint. See Fed.R.Civ.P.

12(a)(1)(A)(i).   Within 60 days following waiver of service of the amended

complaint, JPMorgan filed its first motion to dismiss. See Fed.R.Civ.P. 4(d)(3).

After the court denied this motion and lifted the stay, it set a deadline for

JPMorgan to respond, and the company filed its second motion to dismiss within

the given time. See Fed.R.Civ.P. 12(a)(4). As for the Beepots’ argument that the


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district court erred under Rule 52(a)(1) by not making a separate finding of fact

concerning whether JPMorgan defaulted, the requirements of Rule 52 did not

apply. Indeed, Rule 52 applies only to actions “tried on the facts” or rulings

otherwise expressly included, and the denial of the motion for a clerk’s entry of

default or a default judgment does not fall into these categories. See Fed.R.Civ.P.

52(a)(1), (3). For these reasons, the district court did not abuse its discretion in

denying the Beepots’ motions for an entry of default and a default judgment.

      We also find no merit in the Beepot’s argument that the district court erred

in dismissing their complaint on res judicata grounds. “In considering whether to

give preclusive effect to state-court judgments under res judicata . . . the federal

court applies the rendering state’s law of preclusion.” Lozman v. City of Riviera

Beach, Fla., 713 F.3d 1066, 1074 n.6 (11th Cir. 2013). In Florida, res judicata

applies where there is: “(1) identity of the thing sued for; (2) identity of the cause

of action; (3) identity of the persons and parties to the action; (4) identity of the

quality [or capacity] of the persons for or against whom the claim is made; and (5)

the original claim was disposed on the merits.” Id. at 1074 (quotation omitted).

      For starters, the requirements of Rule 52 do not apply here either, since Rule

52 applies only to actions “tried on the facts” or rulings otherwise expressly

included, and the dismissal of their case and denial of their motion for

reconsideration do not fall into these categories. See Fed.R.Civ.P. 52(a)(1), (3). In


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fact, the Rules clearly provide that the requirements of Rule 52 do not apply to

motions to dismiss under Rule 12. Fed.R.Civ.P. 52(a)(3). Nor did the district

court otherwise err in dismissing their complaint on res judicata grounds. They

raised no argument concerning the merits of the district court’s res judicata ruling

until the reply brief, and thus have waived the argument. See Oppenheim v. I.C.

System, Inc., 627 F.3d 833, 838 (11th Cir. 2010). But even if we were to address

it, their claim that the district court relied on the wrong state court ruling is flatly

refuted by the record.

      Finally, we reject the Beepots’ claim that the district court erred in denying

their motion to alter or amend the judgment. A party may file a motion to alter or

amend a judgment within 28 days of entry of the judgment. Fed.R.Civ.P. 59(e).

“The only grounds for granting a Rule 59 motion are newly-discovered evidence or

manifest errors of law or fact.” Arthur, 500 F.3d at 1343 (quotation omitted).

      Florida Statute § 702.01 provides, in its entirety, that: “All mortgages shall

be foreclosed in equity. In a mortgage foreclosure action, the court shall sever for

separate trial all counterclaims against the foreclosing mortgagee. The foreclosure

claim shall, if tried, be tried to the court without a jury.” Fla. Stat. § 702.01. The

Florida Supreme Court has determined, however, that the mandatory severance

provision encroached on its constitutional power to regulate practice and

procedure. Haven Federal Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 732-33


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(Fla. 1991). Accordingly, § 702.01 violates the Florida constitution “to the extent

it conflict[ed] with rule 1.270(b)” of the Florida Rule of Civil Procedure, which

commits severance of counterclaims to the trial court’s discretion. Id.

      The district court’s order in this case disposed of the Beepots’ argument

under Florida Statue § 702.01 on both procedural and substantive grounds. After

determining that § 702.01 was not an intervening change in the controlling law,

and that the Beepots did not justify their failure to raise the argument earlier in the

proceedings, the court said that it “could decline to consider their arguments”

further, but went on to state that the arguments failed “on the merits as well.”

However, in this appeal, the Beepots do not challenge the district court’s

determination that that Florida Statute § 702.01 was not an intervening change in

law, or that they did not justify their failure to raise the argument earlier in the

proceedings, either of which were sufficient to deny their Rule 59(e) motion.

Thus, they have abandoned these issues on appeal. See Sapuppo, 739 F.3d at 680.

But even if we were to consider the Beepots’ claim, we are unpersuaded because

the district court correctly determined that Florida Statute § 702.01 was not an

intervening change in controlling law, and Haven did not change this conclusion.

      AFFIRMED.




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