            Case: 14-10043   Date Filed: 07/21/2014   Page: 1 of 8


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10043
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 7:13-cv-00515-RDP



ED ORTON,

                                                      Plaintiff-Appellant,

                                versus

SANDY MATHEWS,
BANK OF AMERICA,

                                                      Defendants-Appellees.

                       ________________________

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

                              (July 21, 2014)

Before PRYOR, MARTIN, and COX, Circuit Judges.

PER CURIAM:
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      Ed Orton, proceeding pro se, filed a complaint in the Circuit Court of

Pickens County, Alabama, to quiet title, pursuant to Ala. Code §§ 6-6-540 and 6-6-

541, to a property located in Aliceville, Alabama, that he and his late wife had

purchased using a loan secured by a mortgage. He named Bank of America and

Sandy Mathews as defendants. He alleged that Bank of America, which notified

him that it had acquired the loan, held no valid interest in the property. And, he

alleged that Mathews had fraudulently induced him to grant her an interest in the

property.   Bank of America removed the action to federal court pursuant to

28 U.S.C. §§ 1332 and 1441.

      Bank of America filed a Fed. R. Civ. P. 12(b)(6) motion to dismiss Orton’s

claim against it on two grounds: First, Bank of America contended that Orton had

failed to plead sufficient facts to state a quiet title claim. Second, it contended that

Orton’s claim failed as a matter of Alabama law. The district court agreed with

Bank of America on both grounds and granted its motion to dismiss. Mathews

never responded to the suit in any way. Yet the court dismissed Orton’s claim

against Mathews because Orton failed to timely serve a summons and complaint.

The district court subsequently denied Orton’s motion to vacate its dismissal.

      On appeal, Orton challenges: (1) the district court’s exercise of subject

matter jurisdiction over the case; (2) the district court’s dismissal of his claim

against Bank of America; (3) the district court’s order dismissing his claim as to


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Mathews; and (4) the district court’s denial of his motions to vacate the order

dismissing his claim as to Mathews.

                             (1) Removal Jurisdiction

      Orton argues on appeal that Bank of America’s removal of his suit to federal

court was improper because the district court lacked subject matter jurisdiction to

hear the case. Bank of America argues that the district court properly asserted

removal jurisdiction under 28 U.S.C. §§ 1332 and 1441 because the parties were

completely diverse and the amount in controversy exceeded $75,000.

      In a quiet title action, the amount in controversy for determining subject

matter jurisdiction is the value of the property. See Frontera Transp. Co. v.

Abaunza, 271 F. 199, 201 (5th Cir. 1921). We have said that where the plaintiff

seeks only declaratory and injunctive relief, “it is well established that the amount

in controversy is measured by the value of the object of the litigation.” Ericsson

GE Mobile Commc’ns, Inc. v. Motorola Commc’ns & Elecs., Inc., 120 F.3d 216,

218 (11th Cir. 1997) (quoting Hunt v. Washington State Apple Adver. Comm’n,

432 U.S. 333, 347, 97 S.Ct. 2434, 2443 (1977)). Bank of America’s removal

notice alleged the requisite amount in controversy and supported it with an

affidavit and exhibits. Compare Williams, 269 F.3d at 1319-20. In its notice of

removal, Bank of America alleged that the property at issue in this case was worth




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far more than $75,000. Orton has neither disputed this fact nor has he disputed that

the amount in controversy exceeded $75,000.

      In Wachovia Bank v. Schmidt, the Supreme Court held that, for the purposes

of diversity jurisdiction, a national bank is a citizen of the state “designated in its

articles of association as its main office,” and is not a citizen of each state in which

the bank has established branch operations. 546 U.S. 303, 313, 318, 126 S. Ct.

941, 948, 951-52 (2006); see also 28 U.S.C. § 1348. Bank of America asserted

that the state designated as its main office in its articles of association was North

Carolina. It also alleged that Orton was a citizen of Alabama and Mathews was a

citizen of Florida. Orton has not disputed these allegations, and there does not

appear to be any information in the record that challenges these allegations.

Accordingly, on this record, the district court properly exercised subject matter

jurisdiction over Orton’s suit.

                (2)    Dismissal of Claim Against Bank of America

      On appeal, Orton argues that he satisfied the pleading requirements for an

Alabama quiet title action, particularly since he alleged that he had peaceable

possession of the property and held color of title to it. He acknowledges that Bank

of America had been assigned his mortgage, and that at one time it held the note.

But he asserts that he can no longer tell who holds the note since Bank of America

has not produced it. In any event, he argues, based on authority from jurisdictions


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outside Alabama that the mortgage is void since it was assigned to Bank of

America after Bank of America became a holder of the note. He also argues that

the assignment of the mortgage to Bank of America was void for procedural

reasons, as the agent who signed it for the assignor was a “robo signer” and the

notary has since been convicted of grand theft, forgery, and tax evasion.

      We review de novo a district court’s dismissal of a complaint for failure to

state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Speaker v. U.S. Dep’t of Health

and Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379

(11th Cir. 2010). We “accept[] the factual allegations in the complaint as true and

construe[] them in the light most favorable to the plaintiff.” Id. Pro se pleadings

are held to a less strict standard than pleadings filed by lawyers and are construed

liberally. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).

      A complaint must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Factual allegations in

a complaint “must be enough to raise a right to relief above the speculative level . .

. on the assumption that all the allegations in the complaint are true.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007) (citation

omitted). “A pleading that offers labels and conclusions or a formulaic recitation

of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 1949 (2009) (quotations omitted).


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      The Supreme Court of Alabama has indicated that, to make out a valid claim

for a quiet title action, a plaintiff must show that he is “in peaceable possession of

the land, either actual or constructive, at the time of the filing of the bill and that

there was no suit pending to test the validity of the title.” Woodland Grove Baptist

Church v. Woodland Grove Community Cemetery Ass’n, Inc., 947 So.2d 1031,

1036, 1037-38 (Ala. 2006).       The court explained that “one has constructive

possession of property when one has a legal estate in fee,” and that “actual

possession generally refers to the physical occupation of the land.” Id. at 1038 n.7

(citations omitted).

      The Alabama Court of Civil Appeals, the state’s intermediate-level appellate

court, has held that the assignee of a note secured by a mortgage need not have

been assigned the mortgage at the same time it was assigned the note in order to

exercise the right to foreclose the mortgage. Coleman v. BAC Servicing, 104 So.

3d 195, 200–01 (Ala. Civ. App. 2012), cert. denied, Ala. 1111285 (2012).

Moreover, citing Ala. Code § 35-10-12, the Alabama Court of Civil Appeals has

held that the holder of a note secured by a mortgage need not have been assigned

the mortgage in order to exercise the right of foreclosure in the mortgage. Perry v.

Fed. Nat’l Mortg. Ass’n, 100 So. 3d 1090, 1095–97 (Ala. Civ. App. 2012), cert

denied, Ala. 1111310 (2012). We have said that, in a diversity case governed by

state law, where the state supreme court has not addressed an issue, we are “bound


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to adhere to decisions of the state’s intermediate appellate courts absent some

persuasive indication that the state’s highest court would decide the issue

otherwise.” Provau v. State Farm Mut. Auto. Ins. Co., 772 F.2d 817, 820 (11th

Cir. 1985) (quotations omitted).

      Here, Orton has failed to state a quiet title claim as to Bank of America, as

his allegations contradicted his general assertion that he was in peaceable

possession of the property and held color of title to it. Orton also failed to plead

sufficient facts to support his allegation that the assignment of the mortgage to

Bank of America was procedurally void. See Ala. Code § 35-10-12; Perry, 100

So. 3d at 1095–97. Accordingly, the district court did not err in granting Bank of

America’s motion to dismiss.

                        (3)   Dismissal of Claim as to Mathews

      Orton contends that the district court’s dismissal of his claim against

Mathews and its denial of his motions to vacate its dismissal were erroneous. We

address each in turn.

      We review de novo a district court’s dismissal of a claim for lack of personal

jurisdiction due to improper service of process. See Vax-D Med. Techs., LLC v.

Texas Spine Med. Ctr., 485 F.3d 593, 595–96 (11th Cir. 2007). When a federal

court is considering the sufficiency of process after removal, it does so by looking

to the state law governing process. Usatorres v. Marina Mercante Nicaraguenses,


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S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985). Rule 4(i)(2)(A) of the Alabama

Rules of Civil Procedure provides that a plaintiff may request that the court clerk

deliver service of process by certified mail.     Here, the district court’s initial

dismissal of Orton’s claim against Mathews for insufficient service of process was

not erroneous. We agree with the district court’s order. (Doc. 25).

      We review a district court’s denial of a Rule 60(b) motion for abuse of its

sound discretion. Aldana v. Del Monte Fresh Produce, N.A., Inc., 741 F.3d 1349,

1355 (11th Cir. 2014) (discussing Fed. R. Civ. P. 60(b)(6)); Stilwell v. Travelers

Ins. Co., 327 F.2d 931, 932 (5th Cir. 1964) (discussing Fed. R. Civ. P. 60(b)(2)).

The district court did not abuse its sound discretion in denying Orton’s motions to

vacate.   And the district court adequately addressed why vacatur was not

warranted. (Doc. 30, 33). This result is softened by the fact that Orton can refile

his claim against Mathews in Alabama state court.

      AFFIRMED.




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