              Case: 18-10669    Date Filed: 11/01/2018   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-10669
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:17-cv-01323-ELR

U.S. BANK, N.A.,
as trustee for LSF8 Master Participation Trust,

                                                               Plaintiff - Appellee,

                                      Versus

DONNA SPARKS TOBIN,
STEPHEN L. TOBIN,
a.k.a. Steve L. Tobin,

                                                          Defendants - Appellants,

HOUSEHOLD REALTY CORPORATION,

                                                                        Defendant.

                           ________________________

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

                               (November 1, 2018)

Before MARCUS, BRANCH and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Donna and Stephen Tobin (collectively the “Tobins”), proceeding pro se,

appeal from the entry of default judgment against them in a diversity action

brought by U.S. Bank to judicially foreclose on an interest in property and for

related relief pursuant to Ga. Code § 44-14-49. The Tobins argue that the district

court abused its discretion by entering a default judgment against them because

U.S. Bank did not seek leave of court to file an amended complaint, they were not

served with the amended complaint or U.S. Bank’s motion for a clerk’s entry of

default against them, and they did not consent to the magistrate judge hearing their

and U.S. Bank’s motions. After careful review, we affirm.

      We typically review “the district court’s grant of default judgment for abuse

of discretion.” Sanderford v. Prudential Ins. Co. of America, 902 F.2d 897, 898

(11th Cir. 1990). But, pursuant to 11th Cir. R. 3-1, a party who fails to object to a

magistrate judge’s findings or recommendations in a report and recommendation

(“R&R”) “waives the right to challenge on appeal the district court’s order based

on unobjected-to factual and legal conclusions,” provided the party was given

proper notice of the objection time period and the consequences of failing to do so.

11th Cir. L.R. 3-1. And while we liberally construe pro se briefs, we will not make

arguments for the parties, and thus, issues not briefed are deemed abandoned.

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).




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      The Federal Rules of Civil Procedure 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). Following the entry of default, the district

court may, but is not required to, hold an evidentiary hearing to (A) conduct an

accounting; (B) determine the amount of damages; (C) establish the truth of any

allegation by evidence; or (D) investigate any other matter. Fed. R. Civ. P.

55(b)(A)-(D); Giovanno v. Fabec, 804 F.3d 1361, 1366 (11th Cir. 2015). While a

defaulted defendant “is deemed to admit the plaintiff’s well-pleaded allegations of

fact, he is not held to admit facts that are not well-pleaded or to admit conclusions

of law.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015)

(quotations omitted). Thus, “[e]ntry of default judgment is only warranted when

there is sufficient basis in the pleadings for the judgment entered.” Id. (quotations

omitted). We “express[] a strong preference that cases be heard on the merits, and

strive[] to afford a litigant his . . . day in court, if possible.” Perez v. Wells Fargo

N.A., 774 F.3d 1329, 1342 (11th Cir. 2014) (quotations and citations omitted).

      The Federal Rules of Civil Procedure further provide that all papers after the

complaint that are required to be served upon a party, together with a certificate of

service, must be filed with the court within a reasonable time after service. Fed. R.

Civ. P. 5(d). We’ve observed that “[t]he common law has long recognized a


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rebuttable presumption that an item properly mailed was received by the

addressee.” Konst v. Florida East Coast Ry. Co., 71 F.3d 850, 851 (11th Cir.

1996). This “presumption of receipt arises upon proof that the item was properly

addressed, had sufficient postage, and was deposited in the mail.” Id. (quotation

omitted). Further,

      [t]he presumption . . . is not a conclusive presumption of law, but a
      mere inference of fact, founded on the probability that the officers of
      the government will do their duty and the usual course of business;
      and, when it is opposed by evidence that the letters never were
      received, must be weighed with all the other circumstance of the case.

Id. at 851 n.1. To defeat this presumption more is needed than affidavits merely

stating that a party did not receive the purportedly mailed items.       Barnett v.

Okeechobee Hosp., 283 F.3d 1232, 1240-42 (11th Cir. 2002).

      Rule 15(a) allows a party to “amend its pleading once as a matter of course

within: (A) 21 days after serving it, or (B) if the pleading is one to which a

responsive pleading is required, 21 days after service of a responsive pleading or

21 days after service of a motion under Rule 12(b), (e), or (f), whichever is

earlier.” Fed. R. Civ. P. 15(a)(1)(A), (B). Rule 15(a) adds that “[u]nless the court

orders otherwise, any required response to an amended pleading must be made

within the time remaining to respond to the original pleading or within 14 days

after service of the amended pleading, whichever is later.”       Fed. R. Civ. P.

15(a)(3). Generally, “[a]n amended pleading supersedes the former pleading; the


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original pleading is abandoned by the amendment, and is no longer a part of the

pleader’s averments against his adversary.” Pintando v. Miami-Dade Housing

Agency, 501 F.3d 1241, 1243 (11th Cir. 2007); see also Fritz v. Standard Sec. Life

Ins. Co. of New York, 676 F.2d 1356, 1358 (11th Cir. 1982) (“Under the Federal

Rules, an amended complaint supersedes the original complaint.”).

      As provided by 28 U.S.C. § 636, a magistrate judge may “conduct hearings,

including evidentiary hearings, and . . . submit to a judge of the court proposed

findings of fact and recommendations for the disposition, by a judge of the court,

of any motion” with few exceptions. 28 U.S.C. § 636(b)(1)(B). As for dispositive

motions, Federal Rule of Civil Procedure 72 allows magistrate judges, “without the

parties’ consent, to hear a pretrial matter dispositive of a claim or defense.” Fed.

R. Civ. P. 72(b)(1).    The magistrate judge then “must enter a recommended

disposition, including, if appropriate, proposed findings of fact.” Id.

      The record before us reveals that the Tobins’ claims on appeal are without

merit. First, the Tobins did not present to the district court any evidence to rebut

U.S. Bank’s certificate of service providing that it mailed a copy of the amended

complaint to them at their address. Rather, they only submitted affidavits from

themselves stating that they did not receive the amended complaint. Under our

case law, however, more is needed to rebut the presumption that a properly mailed

item was received by the addressee. Barnett, 283 F.3d at 1240-42. And while the


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Tobins claim that they were not served with U.S. Bank’s motion for a clerk’s entry

of default, they did not present anything that showed otherwise. They did not even

file an affidavit indicating that they were not served with the motion for clerk’s

entry of default or notified of the entry of default against them. Therefore, their

lack-of-serve claims fails. Id.

      Second, U.S. Bank was not required to seek leave of the court to file an

amended complaint. Rule 15(a) specifically allowed U.S. Bank to amend its

complaint without leave of the court within 21 days after it was served with the

Tobins’ motion to dismiss for failure to state a claim. Fed. R. Civ. P. 15(a)(1)(B).

Because U.S. Bank filed its amended complaint 11 days after the Tobins filed their

motion to dismiss, the Tobins’ argument on this issue fails as well.

      Finally, the Tobins’ consent was not needed for the magistrate judge to

review any motion filed by them or U.S. Bank, or to issue a Report and

Recommendation to the district court. A magistrate judge is allowed “to conduct

hearings, including evidentiary hearings, and to submit to a judge of the court

proposed findings of fact and recommendations for the disposition, by a judge of

the court, of any motion” with few exceptions. 28 U.S.C. § 636(b)(1)(B). As for

dispositive motions, Rule 72 allows magistrate judges, “without the parties’

consent, to hear a pretrial matter dispositive of a claim or defense” and issue a

recommended disposition. Fed. R. Civ. P. 72(b)(1). As a result, the Tobins’


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consent was not needed for the magistrate judge to review U.S. Bank’s and the

Tobins’ motions and issue an R&R, and the Tobins have given us absolutely no

reason to conclude that the entry of a default judgment was somehow indicative of

“judicial corruption.”

      Accordingly, we affirm.

      AFFIRMED.




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