Abbington SPE, LLC v. U. S. Bank NA
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to strike [1000144121-2] Originating case number: 7:16-cv-00249-D Copies to all parties and the district court/agency. . [16-2343]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ABBINGTON SPE, LLC,
Plaintiff - Appellant,
U. S. BANK, NATIONAL ASSOCIATION, As Trustee, As Successor-In-Interest
to Bank of America, N.A., As Trustee, As Successor-In-Interest to Wells Fargo
Bank, N.A., As Trustee for the Registered Holders Of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through; C-III ASSET
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, Chief District Judge. (7:16-cv-00249-D)
Submitted: October 5, 2017
Decided: October 12, 2017
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jennifer N. Fountain, ISAACSON ISAACSON SHERIDAN FOUNTAIN &
LEFTWICH, LLP, Greensboro, North Carolina, for Appellant. Kiah T. Ford, IV,
Matthew P. Weiner, PARKER POE ADAMS & BERNSTEIN, LLP, Charlotte, North
Carolina, for Appellees.
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Unpublished opinions are not binding precedent in this circuit.
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Abbington, SPE, LLC, initially filed a complaint in state court against the
Appellees, U.S. Bank National Association and C-III Asset Management, LLC, asserting
breach of contract and related claims. The Appellees removed the action to federal court
based on diversity jurisdiction. Abbington moved to remand the action to state court
based on the forum-selection clause in the contract.
The district court denied
Abbington’s motion and granted the Appellees’ motion to dismiss the complaint.
Because the district court dismissed the complaint without prejudice, we ordered the
parties to address the issue of the appealability of the order. For the reasons that follow,
We may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and
certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). “An order
dismissing a complaint without prejudice is not an appealable final order under § 1291 if
the plaintiff could save his action by merely amending his complaint.” Goode v. Cent. Va.
Legal Aid Soc’y, Inc., 807 F.3d 619, 623 (4th Cir. 2015) (internal quotation marks
omitted). By contrast, “if the grounds of the dismissal make clear that no amendment
could cure the defects in the plaintiff's case, the order dismissing the complaint is final in
fact and therefore appealable.” Id. (internal quotation marks omitted). We have reviewed
the parties’ supplemental submissions regarding the appealability of the district court’s
order and the relevant legal authorities, and agree that no amendment could cure the
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pleading defects. Therefore, we possess jurisdiction over Abbington’s appeal of the
district court’s order.
On appeal, Abbington challenges the district court’s conclusion that the Appellees
did not waive their right to remove the action to federal court in the forum-selection
clause of the contract. We review a district court’s denial of a motion to remand to state
court de novo. Lontz v. Tharp, 413 F.3d 435, 439 (4th Cir. 2005). “A defendant may
remove any action from a state court to a federal court if the action could have originally
been brought in federal court.” Yarnevic v. Brink’s, Inc., 102 F.3d 753 (4th Cir. 1996)
(citing 28 U.S.C. § 1441 (2012)). “Removal jurisdiction is not a favored construction; we
construe it strictly in light of the federalism concerns inherent in that form of federal
jurisdiction.” In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006).
“The party seeking removal bears the burden of demonstrating that removal jurisdiction
is proper.” Id. (citing Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th
A defendant, however, may waive the right to remove an action to federal court in
a valid forum-selection clause. See Foster v. Chesapeake Ins. Co., 933 F.2d 1207,
1216-18 (3d Cir. 1991); see also Yakin v. Tyler Hill Corp., 566 F.3d 72, 76 (2d Cir. 2009)
(“To the extent that a forum-selection clause binds diverse parties by its express terms to
a specific jurisdiction that is not federal, it waives a statutory right to remove.”). The
district court concluded that the Appellees had not so waived their rights in the
forum-selection clause in the contract. We conclude that this determination was not in
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Finally, Abbington challenges the district court’s dismissal of each of its
individual claims. We review de novo a district court’s dismissal under Fed. R. Civ. P.
12(b)(6), accepting factual allegations in the complaint as true and drawing all reasonable
inferences in favor of the nonmoving party.
Kensington Volunteer Fire Dep’t v.
Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To survive a Rule 12(b)(6) motion
to dismiss, a complaint must contain sufficient “facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We have
thoroughly reviewed the record and conclude that the district court correctly determined
that Abbington failed to state any claims on which relief could be granted in the
Accordingly, we affirm the district court’s order. We also deny the Appellees’
motion to strike Abbington’s supplemental reply brief as moot. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid in the decisional process.
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