[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13101 FEB 1, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:11-cv-00833-CAP
PATRICIA WHITE,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
AMERICAS SERVICING COMPANY,
US BANK NATIONAL ASSOCIATION,
as Trustee for the BNC Mortgage Loan Trust 2006-2,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 1, 2012)
Before TJOFLAT, EDMONDSON and MARCUS, Circuit Judges.
PER CURIAM:
Patricia White, proceeding pro se, appeals the district court’s dismissal of her
amended complaint alleging fraud, breach of fiduciary duty, and the failure to provide
requested information against Americas Servicing Company (“ASC”) and U.S. Bank
National Association (“U.S. Bank”), following the foreclosure sale of a condominium
owned by White. On appeal, White argues that: (1) the district court improperly
dismissed U.S. Bank as a defendant based upon insufficient service of process; and
(2) the district court erred by dismissing her amended complaint as she alleged
sufficient facts to satisfy the pleading requirements of both Fed.R.Civ.P. 12(b)(6) and
9(b). After thorough review, we affirm.
We review the district court’s grant of a motion to dismiss for insufficient
service of process by applying a de novo standard to the law and a clear error
standard to any findings of fact. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir.
2007). We review de novo the district court’s grant of a motion to dismiss under Rule
12(b)(6) for failure to state a claim. Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283,
1288 (11th Cir. 2010).
First, we are unpersuaded by White’s claim that the district court erred in
finding insufficient service of process. A plaintiff may serve process on a corporation
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by delivering the summons and complaint to an officer, managing or general agent,
or other agent who is authorized to receive service of process. Fed.R.Civ.P.
4(h)(1)(B). The plaintiff must make proof of service to the court by submitting the
server’s affidavit. Fed.R.Civ.P. 4(l)(1). Local Rule 41.3(A) states that a court may,
with or without notice to the parties, dismiss a civil case for want of prosecution if a
plaintiff, after notice, fails or refuses to obey a lawful order of the court in the case.
See LR 41.3(A)(2), NDGa. Pro se litigants are still held to filing deadlines. See
Vanderberg v. Donaldson, 259 F.3d 1321, 1325-26 (11th Cir. 2001).
In this case, the district court did not err by dismissing U.S. Bank as a
defendant. Per the district court’s order, White was required to file proof of service
on U.S. Bank or, alternatively, show cause why her case should not be dismissed by
May 6, 2011. However, White did not file the two affidavits of service on U.S. Bank
until May 11, 2011. Therefore, they were untimely and in violation of the district
court’s order, and the district court did not err in dismissing U.S. Bank under Local
Rule 41.3(A)(2). See Vanderberg, 259 F.3d at 1325-26.
We also reject White’s claim that the district court erred by dismissing her
amended complaint for insufficient allegation of facts. In reviewing the grant of a
motion to dismiss, we take the factual allegations as true and construe them in the
light most favorable to the plaintiffs. Edwards v. Prime, Inc., 602 F.3d 1276, 1291
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(11th Cir. 2010). We are not, however, required to accept the labels and legal
conclusions in the complaint as true. Id. Dismissal for failure to state a claim is
proper if the factual allegations are not enough to raise a right of relief above the
speculative level. Id. A complaint may be dismissed if the facts as pled do not state
a claim for relief that is plausible on its face. Sinaltrainal v. Coca-Cola Co., 578 F.3d
1252, 1260 (11th Cir. 2009).
When alleging fraud, a plaintiff “must state with particularity the circumstances
constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Under Rule 9(b), a plaintiff must
allege: “(1) the precise statements, documents, or misrepresentations made; (2) the
time, place, and person responsible for the statement; (3) the content and manner in
which these statements misled the [p]laintiffs; and (4) what the defendants gained by
the alleged fraud.” Am. Dental Ass’n, 605 F.3d at 1291 (quotations omitted).
Here, the three claims presented in White’s amended complaint did not state
a claim for relief that was plausible on its face. See Sinaltrainal, 578 F.3d at 1260.
As for White’s fraud claim, White failed to plead her fraud claim with particularity
because White failed to allege who made the statements or misrepresentations, what
their precise content was, as well as when and where they were made. See Am.
Dental Ass’n, 605 F.3d at 1291. Similarly, as for White’s breach-of-fiduciary-duty
claim, she alleged only that ASC and U.S. Bank failed to act in accordance with their
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fiduciary duties towards her, but provided no other facts to substantiate the existence
of a fiduciary duty. What’s more, Georgia courts have held that as a matter of law,
no fiduciary relationship exists merely because of two parties’ relative relationships
as lender and borrower. See Moore v. Bank of Fitzgerald, 483 S.E.2d 135, 139 (Ga.
Ct. App. 1997).
As for White’s failure-to-provide-information claim, nothing in the submitted
documents demonstrates that either ASC or U.S. Bank had a legal duty to provide the
requested information. And finally, as for White’s reference to interrogatories, the
district court was not authorized to compel a response because the suit had not yet
been filed. Moreover, White failed to identify any specific information she requested,
to whom the request was sent, and on what date. Therefore, the district court did not
err by dismissing White’s amended complaint, and we affirm.
AFFIRMED.
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