[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12858 NOVEMBER 29, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:10-cv-03134-ODE
DOROTHEA CORNELIUS,
Plaintiff - Appellant,
versus
WELLS FARGO BANK, N.A.,
as Trustee for Carrington Mortgage Loan Trust Series
2006-NC1 Asset-Backed Pass Through Certificates,
MCCURDY & CANDLER, LLC,
MCCURDY & CANDLER BANKRUPTCY LLC,
ANTHONY DEMARLO,
JOHN DOES 1-10,
jointly and individually, et al.,
lllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(November 29, 2011)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Dorothea Cornelius filed this action asserting numerous claims based upon
the imminent foreclosure sale of her property. She appeals the dismissal of her
complaint for failure to state a claim. Wells Fargo Bank, N.A., has filed a motion
for sanctions under Federal Rule of Appellate Procedure 38 or 28 U.S.C. § 1927
(or both), on the basis that Cornelius’s appeal is utterly meritless and has
vexatiously multiplied these proceedings. We affirm the district court’s dismissal
of Cornelius’s complaint and deny Wells Fargo’s motion.
I.
Cornelius filed her complaint initially in the Superior Court of Fulton County.
After the case was removed to federal court, all of the named defendants filed
motions to dismiss, which were referred to a magistrate judge. Among the arguments
asserted in those motions was that Cornelius’s complaint was an impermissible
shotgun complaint.
Cornelius then filed an amended complaint without the leave of court or
permission required by Federal Rule of Civil Procedure 15(a)(2). But the magistrate
judge, after considering the amended complaint, found that it did not cure the
deficiencies identified in the motions to dismiss and recommended dismissal of her
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complaint, among other reasons, as a shotgun pleading. Although Cornelius filed
what the district court construed as objections to the magistrate judge’s report,
recommendation, and order, she did not dispute that conclusion and the district court,
finding no reason to disagree, adopted the recommendation as one of several
alternative bases for dismissal.
II.
This court has consistently held that issues not raised on appeal are deemed
abandoned. Ivy v. Ford Motor Co., 646 F.3d 769, 773 (11th Cir. 2011). Cornelius
did not object to the magistrate judge’s recommendation that her complaint be
dismissed as a shotgun pleading, and the district court adopted that
recommendation. Likewise, on appeal, Cornelius has marshaled no argument
challenging the district court’s description of her complaint as a shotgun pleading
or its dismissal of her complaint on that basis. See, e.g., Byrne v. Nezhat, 261 F.3d
1075, 1129-34 (11th Cir. 2001) (discussing shotgun pleadings and approving of
dismissal as a remedy when a party fails to cure the deficiency). We need not
address Cornelius’s arguments regarding the district court’s alternative reasons for
dismissal. Rather, we affirm the dismissal of Cornelius’s complaint as a shotgun
complaint because Cornelius has abandoned any contention to the contrary.
III.
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Wells Fargo has moved for sanctions, contending that Cornelius’s appeal is
patently frivolous and that she has vexatiously pursued this appeal even though its
frivolity was made apparent in both the district court’s order and magistrate
judge’s report and recommendation. Fed. R. App. P. 38 (“If a court of appeals
determines that an appeal is frivolous, it may . . . award just damages and single or
double costs to the appellee.”) (emphasis supplied). Although we agree that
Cornelius’s contentions are meritless, there is no indication in the record that her
appeal, though ill-conceived, was pursued merely for the purpose of harassment or
delay or with any subjectively vexatious intent. E.g., Schwartz v. Millon Air, Inc.,
341 F.3d 1220, 1225 (11th Cir. 2003) (“Bad faith is the touchstone” of an award
under 28 U.S.C. § 1927). We, therefore, decline to impose sanctions.
IV.
For the foregoing reasons, Wells Fargo’s motion for sanctions is DENIED
and the judgment of the district court is AFFIRMED.
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