[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11803 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 25, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-01150-ODE
DAVID SHANYFELT,
Plaintiff - Appellant,
versus
WACHOVIA MORTGAGE FSB,
WELLS FARGO HOME MORTGAGE INC.,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
MCCALLA RAYMER, LLC/MCCALLA RAYMER, ESQ.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 25, 2011)
Before WILSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
David Shanyfelt appeals the dismissal with prejudice of his complaint
against Wachovia Mortgage FSB, Wells Fargo Home Mortgage Inc., Mortgage
Electronic Registration Systems, Inc., and McCalla Raymer LLC/McCalla
Raymer, Esq. After Shanyfelt filed his complaint in a Georgia court, Wachovia
removed the action to the district court. 28 U.S.C. § 1332. The district court sua
sponte dismissed Shanyfelt’s complaint after he failed to comply with an order to
provide a more definite statement of his claims. Fed. R. Civ. P. 12(e). Shanyfelt
argues, for the first time on appeal, that the district court should have sua sponte
remanded the complaint to state court because Shanyfelt and McCalla Raymer are
both citizens of Georgia. Shanyfelt also argues, for the first time, that the
defendants committed fraud by submitting fraudulent documents to the district
court and to the state courts. We affirm.
Wachovia, Wells Fargo, Mortgage Registration, and McCalla argue that
Shanyfelt waived “all of [his] arguments” by failing to present them to the district
court, but we disagree in part. Although we will not consider “‘arguments not
raised in the district court and raised for the first time in an appeal,’” Access Now,
Inc., v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quoting Walker v.
Jones, 10 F.3d 1569, 1572 (11th Cir. 1994)), “[a] litigant generally may raise a
court’s lack of subject-matter jurisdiction at any time in the same civil action, even
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initially at the highest appellate instance,” Kontrick v. Ryan, 540 U.S. 443, 455,
124 S. Ct. 906, 915 (2004). We decline to consider Shanyfelt’s arguments about
fraud, but we address his argument about subject-matter jurisdiction.
The district court had subject-matter jurisdiction to entertain Shanyfelt’s
complaint based on diversity of citizenship. A district court has diversity
jurisdiction when the parties are citizens of different states and the amount in
controversy exceeds $75,000. 28 U.S.C. § 1332(a). Although Shanyfelt argues
that both he and McCalla Raymer are citizens of Georgia, Shanyfelt never served
McCalla Raymer with a summons and complaint while the action was pending in
the district court. See Fed. R. Civ. P. 4(m) (requiring service within 120 after
complaint is filed). Wachovia mentioned that failure to serve McCalla Raymer in
its notice of removal. See 28 U.S.C. § 1441(b) (allowing removal based on
“parties in interest [who are] properly joined and served”). The district court was
entitled to entertain Shanyfelt’s complaint without regard to the citizenship of
McCalla Raymer.
The dismissal of Shanyfelt’s complaint is AFFIRMED.
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