                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 11-11803         ELEVENTH CIRCUIT
                         Non-Argument Calendar      AUGUST 25, 2011
                       ________________________        JOHN LEY
                                                        CLERK
                   D.C. Docket No. 1:10-cv-01150-ODE

DAVID SHANYFELT,

                                                          Plaintiff - Appellant,

                                  versus

WACHOVIA MORTGAGE FSB,
WELLS FARGO HOME MORTGAGE INC.,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
MCCALLA RAYMER, LLC/MCCALLA RAYMER, ESQ.,

                                                      Defendants - Appellees.

                      ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (August 25, 2011)

Before WILSON, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
      David Shanyfelt appeals the dismissal with prejudice of his complaint

against Wachovia Mortgage FSB, Wells Fargo Home Mortgage Inc., Mortgage

Electronic Registration Systems, Inc., and McCalla Raymer LLC/McCalla

Raymer, Esq. After Shanyfelt filed his complaint in a Georgia court, Wachovia

removed the action to the district court. 28 U.S.C. § 1332. The district court sua

sponte dismissed Shanyfelt’s complaint after he failed to comply with an order to

provide a more definite statement of his claims. Fed. R. Civ. P. 12(e). Shanyfelt

argues, for the first time on appeal, that the district court should have sua sponte

remanded the complaint to state court because Shanyfelt and McCalla Raymer are

both citizens of Georgia. Shanyfelt also argues, for the first time, that the

defendants committed fraud by submitting fraudulent documents to the district

court and to the state courts. We affirm.

      Wachovia, Wells Fargo, Mortgage Registration, and McCalla argue that

Shanyfelt waived “all of [his] arguments” by failing to present them to the district

court, but we disagree in part. Although we will not consider “‘arguments not

raised in the district court and raised for the first time in an appeal,’” Access Now,

Inc., v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quoting Walker v.

Jones, 10 F.3d 1569, 1572 (11th Cir. 1994)), “[a] litigant generally may raise a

court’s lack of subject-matter jurisdiction at any time in the same civil action, even

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initially at the highest appellate instance,” Kontrick v. Ryan, 540 U.S. 443, 455,

124 S. Ct. 906, 915 (2004). We decline to consider Shanyfelt’s arguments about

fraud, but we address his argument about subject-matter jurisdiction.

      The district court had subject-matter jurisdiction to entertain Shanyfelt’s

complaint based on diversity of citizenship. A district court has diversity

jurisdiction when the parties are citizens of different states and the amount in

controversy exceeds $75,000. 28 U.S.C. § 1332(a). Although Shanyfelt argues

that both he and McCalla Raymer are citizens of Georgia, Shanyfelt never served

McCalla Raymer with a summons and complaint while the action was pending in

the district court. See Fed. R. Civ. P. 4(m) (requiring service within 120 after

complaint is filed). Wachovia mentioned that failure to serve McCalla Raymer in

its notice of removal. See 28 U.S.C. § 1441(b) (allowing removal based on

“parties in interest [who are] properly joined and served”). The district court was

entitled to entertain Shanyfelt’s complaint without regard to the citizenship of

McCalla Raymer.

      The dismissal of Shanyfelt’s complaint is AFFIRMED.




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