Nguyen v. Bank of America, N.A., 516 F. App'x 332 (5th Cir. 2013)

PER CURIAM:*

Tu Nguyen, proceeding pro se, sued Bank of America (“BOA”), alleging wrongful foreclosure. We affirm the summary judgment in favor of BOA.

I.

This is Nguyen’s second suit against BOA related to the foreclosure on his house. Nguyen took a mortgage from BOA, which tried to foreclose on January 3, 2012, but was prevented from doing so when Nguyen sued in state court and received a temporary restraining order (“TRO”). Nguyen alleged causes of action including (1) interference with prospective contracts; (2) vicarious liability; (3) negligent hiring; (4) breach of contract; (5) civil conspiracy; (6) negligence; (7) unjust enrichment; (8) wrongful foreclosure; (9) violations of the federal Real Estate Settlement Procedures Act; (10) violations of the federal Truth in Lending Act; (11) violations of the federal Fair Debt Collection Practices Act; (12) violations of the Texas Debt Collection Act; (13) fraud; (14) negligent misrepresentation; (15) violation of the federal Home Affordable Modification Program; and (16) violation of the federal Helping Families Save Their Homes Act.

BOA removed to federal court, then Nguyen agreed to dismissal with prejudice. The case was dismissed on February 21, 2012, and the TRO was lifted. Nguyen took no further action, seeking neither appeal nor reformation of the judgment.

On April 30, 2012, Nguyen sued BOA, again in state court, and BOA again removed. This suit alleges nearly identical causes of action related to the foreclosure: (1) interference with prospective contracts;

(2) breach of fiduciary duty; (3) vicarious liability; (4) negligent hiring; (5) breach of contract; (6) negligence; and (7) wrongful foreclosure. The district court granted BOA’s motion for summary judgment based on claim preclusion and alternatively on the merits. Nguyen challenges the summary judgment on four grounds: that (1) removal was improper; (2) the court should have set aside the previous judgment as fraudulent; (3) summary judgment was improper because there was a genuine dispute of material fact; and (4) the court committed clear error in its analysis of the facts.

II.

“Summary judgments are reviewed de novo.” Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 787 (5th Cir.2012). Summary judgment is granted where, taking the evidence in the light most favorable to the nonmovant, there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See Fed.R.Civ.P. 56(a). We review a denial of a motion to remand de novo. Preston v. Tenet Health-system Mem’l Med. Ctr., Inc., 485 F.3d 793, 796 (5th Cir.2007). Because Nguyen is proceeding pro se, we “liberally construct ]” his filings. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

III.

A defendant may remove to federal court if that court has subject-matter jurisdiction. See 28 U.S.C. § 1441. The court has subject-matter jurisdiction where “the matter in controversy exceeds the sum or value of $75,000” and is between “citizens of different States.” 28 U.S.C. § 1332(a). It is undisputed that there is complete diversity of citizenship and that the amount in controversy exceeds the threshold. Nguyen is a citizen of Texas, and BOA is a citizen of North Carolina.1 The amount in controversy is the appraised value of the house, $359,820. Nguyen does not challenge any of these facts. The court therefore had original jurisdiction under § 1332, and removal was proper.2

IV.

Nguyen argues that the court should have set aside the previous judgment. He claims that either he did not agree to the dismissal, despite the agreed motion to dismiss, or alternatively that his agreement was procured through fraud. Nguyen supports these contentions solely with his own self-serving affidavit.

The deciding court may set aside a final judgment on a motion under Federal Rule of Civil Procedure 60(b)(3) if it is a result of fraud, “misrepresentation, or misconduct by an opposing party.” A court may also provide relief from a judgment if it is a result of a “fraud on the court.” Fed. R.Civ.P. 60(d). “The inherent power of a federal court to investigate whether a judgment was obtained by fraud, is beyond question.” Universal Oil Prods. Co. v. Root Ref. Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 90 L.Ed. 1447 (1946). The “proper forum in which to assert that a party has perpetrated a ‘fraud on the court’ is the court which allegedly was a victim of that fraud.” Wilson v. Comm’r, 309 Fed.Appx. 829, 833 (5th Cir.2009). Nguyen, however, did not challenge the final judgment in his initial suit, nor did he file a Rule 60(b) motion.

“[Tjhe standard for fraud on the court is demanding: ‘Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court.’ ” Ballew v. U.S. Dep’t of Justice, 244 F.3d 138 (5th Cir.2000). Fraud is “never presumed” and “must always be proven by clear and convincing evidence.” Saenz v. Kenedy, 178 F.2d 417, 419 (5th Cir.1949). All Nguyen has offered to support fraud is a vague statement that he did not agree to the motion to dismiss with prejudice. That is insufficient. The district court correctly concluded that the previous judgment could not be undone.

Given the finality of the previous judgment, we turn to the issue of res judicata. Claim preclusion “bars the litigation of claims that either have been litigated or should have been raised in an earlier suit.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.2005). Claim preclusion exists where

Duffie v. United States, 600 F.3d 362, 372 (5th Cir.2010) (internal citations omitted).

The first prong is satisfied: Nguyen and BOA were the only parties in both suits. The second prong is also met: The district court had diversity jurisdiction. The third prong is satisfied as well: The parties submitted an agreed motion to dismiss with prejudice, the district court entered an order dismissing with prejudice, and Nguyen neither challenged the judgment nor tried to reopen the case. And, as we concluded above, the judgment will not be overturned as fraudulent.

Finally, the fourth prong is satisfied. Six of the seven causes of action that Nguyen urges are identical to those in the original suit. The only addition is breach of fiduciary duty, which is related to and could have been brought in the initial suit. Both actions arise out of the “the same nucleus of operative facts”: the foreclosure and foreclosure proceedings regarding Nguyen’s house. See Southmark Corp. v. Coopers & Lybrand (In re Southmark Corp.), 163 F.3d 925, 934 (5th Cir.1999) (emphasis omitted). They thus involve the same claim, so claim preclusion bars this suit, and the district court properly dis

missed it on summary judgment.3

The summary judgment is AFFIRMED.