           Case: 14-14448   Date Filed: 02/27/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14448
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:13-cv-04102-CC

MAJOR FORTSON,

                                                           Plaintiff-Appellant,

                                   versus

BEST RATE FUNDING, CORP.,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

                                                        Defendants-Appellees.

                      ________________________

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

                            (February 27, 2015)



Before MARCUS, WILLIAM PRYOR, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Plaintiff Major Fortson appeals the district court’s orders (1) denying

Fortson’s motion for default judgment against Defendant Deutsche Bank National

Trust Company (“Deutsche Bank”); (2) denying Fortson’s motion for leave to file

an amended complaint; and (3) dismissing Fortson’s complaint for failure to state a

claim. No reversible error has been shown; we affirm.

       Briefly stated, Fortson challenges the foreclosures on seven residential

properties in Atlanta, Georgia. Fortson filed suit against Deutsche Bank and

Mortgage Electronic Registration Systems, Inc. (“MERS”) 1 in federal court for (1)

fraud; (2) misrepresentation as legal fraud; (3) fraudulent assignment; (4) wrongful

foreclosure; (5) violations of Georgia’s Fair Business Practices Act; and (6)

violations of Georgia’s RICO Act.



Motion for Default Judgment



       We review a district court’s denial of a motion for default judgment for

abuse of discretion. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d


1
 Fortson’s complaint also named as a defendant Best Rate Funding, Corp. As noted by the
district court, it appears that this entity was never served and has not appeared in this action.
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1309, 1316 (11th Cir. 2002).

      Default judgment may be entered against a party who “has failed to plead or

otherwise defend.” Fed.R.Civ.P. 55(a). “Entry of judgment by default is a drastic

remedy which should be used only in extreme situations.” Wahl v. McIver, 773

F.2d 1169, 1174 (11th Cir. 1985). Before judgment may be entered against a

defendant, the defendant must have been served properly or have waived service of

process. See Valdez v. Feltman (In re Worldwide Web Sys.), 328 F.3d 1291, 1299

(11th Cir. 2003).

      In response to Fortson’s motion for default judgment, Deutsche Bank argued

that it had not been served properly. Because Fortson failed to respond to

Deutsche Bank’s argument and failed to otherwise allege proper service of process

on Deutsche Bank, the district court concluded that the sanction of default

judgment was unwarranted.

      Although Fortson challenges the district court’s denial of his motion for

default judgment on appeal, he fails to address the sufficiency of the service of

process on Deutsche Bank. Fortson has failed to allege proper service of process

on Deutsche Bank and nothing evidences an “extreme situation” warranting default

judgment. The district court abused no discretion in denying Fortson’s motion.




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Motion for Leave to File an Amended Complaint



      In his motion for leave to file an amended complaint, Fortson sought to add

as a defendant Chase Bank, N.A., as successor in interest to Washington Mutual

(which Fortson asserted “was the entity responsible for the Power of Sale and

Acceleration Letter issued in connection with the property”). Fortson attached no

proposed amended complaint to his motion and identified no claims he sought to

bring against Chase. The district court denied Fortson leave to amend as futile.

      We review a district court’s denial of a motion to amend a complaint for

abuse of discretion. Coventry First, LLC v. McCarty, 605 F.3d 865, 869 (11th Cir.

2010). And we review de novo whether the motion to amend was rejected

properly as futile. Id.

      “Ordinarily, if the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, leave to amend should be freely given.”

Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004) (quotations

and citations omitted). But leave to amend may be denied properly when the

proposed amendment would be futile. Id. at 1262-63. A proposed amendment is

“futile” “when the complaint as amended is still subject to dismissal.” Id. at 1263.




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      The district court denied properly Fortson’s motion to file an amended

complaint because Fortson’s only proposed amendment -- the addition of Chase

Bank as a defendant -- would have cured none of the deficiencies identified -- by

the earlier-filed motion to dismiss -- in the original complaint.



Motion to Dismiss



      Defendants filed, by “special appearance,” a motion to dismiss Fortson’s

complaint for failure to state a claim. Fortson failed to respond to Defendants’

motion. But the district court considered the merits and granted the motion on the

merits by means of a reasoned opinion and order.

      As an initial matter, Fortson has failed to challenge the district court’s

conclusions (1) that Fortson’s wrongful foreclosure claim was barred by the statute

of limitations and (2) that Fortson’s claim under the Georgia Fair Business

Practices Act was subject to dismissal because the Act does not apply to actions

challenging foreclosures. These two claims are abandoned. See N. Am. Med.

Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008).

      The district court dismissed Fortson’s remaining fraud-based claims

(including his claims for fraud, misrepresentation as legal fraud, fraudulent

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assignment, and violation of Georgia’s RICO Act) because Fortson’s allegations

failed to meet the heightened pleading standard under Fed.R.Civ.P. 9(b).2

       We review de novo the district court’s dismissal of a case under Rule

12(b)(6), “accepting the allegations in the complaint as true and construing them in

the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th

Cir. 2003). To survive dismissal for failure to state a claim, “a plaintiff’s

obligation to provide the grounds of his entitlement to relief requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)

(quotations omitted). The complaint must allege facts sufficient “to raise a right to

relief above the speculative level.” Id. at 1965.

       When alleging fraud, a plaintiff “must state with particularity the

circumstances constituting fraud or mistake.” Am. Dental Ass’n v. Cigna Corp.,

605 F.3d 1283, 1291 (11th Cir. 2010). Under Rule 9(b), a plaintiff must allege

“(1) the precise statements, documents, or or misrepresentations made; (2) the

time, place, and person responsible for the statement; (3) the content and manner in




2
 In the alternative, the district court also concluded that Fortson lacked standing to challenge the
validity of the assignments between MERS and Deutsche Bank. Because the district court
dismissed properly Fortson’s complaint for failing to satisfy Rule 9(b)’s pleading standard, we
need not address the district court’s alternative ruling about standing.
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which these statements misled the Plaintiffs; and (4) what the defendants gained by

the alleged fraud.” Id.

       Fortson’s complaint contains only conclusory allegations and fails entirely to

identify specific instances of fraud or misrepresentation, the parties responsible for

the alleged fraud or misrepresentation, or Defendants’ roles in the alleged fraud or

misrepresentation. Because Fortson failed to plead his fraud claims with

particularity, as required by Rule 9(b), the district court dismissed properly these

claims. 3

       AFFIRMED.




3
 We reject Fortson’s bald assertions on appeal that his claims are plausible and that the pleading
standard set forth in Rule 9(b) is impossible to meet without discovery.
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