11-3837

Thompson v. Accent Capital et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 21st day of November, two thousand twelve.

PRESENT:

JOHN M. WALKER, JR.,

ROBERT A. KATZMANN,

PETER W. HALL,

Circuit Judges.

___________________________________________________

MELVIN THOMPSON,

Plaintiff-Appellant,

v. No. 11-3837

ACCENT CAPITAL, TERRENCE RIORDAN, BARCLAYS 

CAPITAL REAL ESTATE d/b/a HOMEQ, NEW CENTURY 

MORTGAGE CORPORATION, DEUTSCHE BANK,

OCWEN LOAN SERVICING, LLC, MORGAN STANLEY,

Defendants-Appellees.

___________________________________________________

For Plaintiff-Appellant: Melvin Thompson, pro se, Derby, CT.

For Defendants-Appellees: Geoffrey K. Milne, Hunt Leibert Jacobson, PC,

Hartford, CT, for defendants-appellees Accent

Capital, Terrence Riordan, New Century Mortgage

Corporation, Deutsche Bank, Ocwen Loan

Servicing, LLC, and Morgan Stanley; David M.

Bizar, Seyfarth Shaw LLP, Boston, MA, for

defendant-appellee Barclays Capital Real Estate,

Inc., f/d/b/a Barclays HomEq Servicing.
1

 The judgment from which Thompson appeals gave him leave to amend his complaint

against defendants Accent Capital and Riordan within 30 days. Before the 30 days expired,

Thompson filed his notice of appeal. Although a dismissal with leave to amend is a non-final

judgment and is not appealable, by filing his notice of appeal and allowing the 30-day period to

expire, Thompson has disclaimed any intent to amend and allowed the non-final judgment to

ripen into a final judgment. See Slayton v. Am. Express Co., 460 F.3d 215, 224–25 (2d Cir. 2006)

(holding disclaimer of intent to amend renders non-final judgment final).

2

Appeal from a judgment of the United States District Court for the District of

Connecticut (Thompson, C.J.).

ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Appellant Melvin Thompson, proceeding pro se, appeals from the district court’s

judgment entered August 22, 2011, denying his motion to remand the case to state court,

granting the motion filed by certain defendants to dismiss the claims raised against them, and sua

sponte dismissing his remaining claims.1 We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

We review a district court’s denial of a motion to remand de novo. Pietrangelo v. Alvas

Corp., 686 F.3d 62, 64 (2d Cir. 2012) (per curiam). We also review de novo a district court’s

dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6), construing the complaint liberally,

accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in

the plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). 

Although we have not yet decided whether we review a district court’s sua sponte dismissal of a

complaint pursuant to its inherent authority de novo or for abuse of discretion, we are not required

to decide the proper standard in this case, as the district court’s decision withstands scrutiny under

either standard.
3

Here, for substantially the same reasons as those stated in its decision, the district court

properly denied Thompson’s motion to remand, granted the motion filed by the defendants who

appeared in the action to dismiss his claims against them as time-barred, and sua sponte dismissed

his claims against the remaining defendants as time-barred. On appeal, Thompson, for the most

part, either reiterates arguments that the court explicitly rejected or raises arguments that have no

relevance to the court’s decision. The sole issue he raises on appeal that was not addressed by the

district court is that removal was improper because defendants Accent Capital and Terrence

Riordan did not join in or consent to the notice of removal, as required by 28 U.S.C. § 1446(b). 

Although the district court did not explicitly address this argument, it did conclude that those

defendants had been fraudulently joined in the action. Defendants who are joined fraudulently

are not required to consent to the notice of removal. See 28 U.S.C. § 1446(b)(2)(A) (“[A]ll

defendants who have been properly joined and served must join in or consent to the removal of

the action.”) (emphasis added); see also Rico v. Flores, 481 F.3d 234, 239 (5th Cir. 2007)

(holding no consent to removal required by defendants fraudulently joined); Steel Valley Auth. v.

Union Switch & Signal Div., 809 F.2d 1006, 1009 n.2 (3d Cir. 1987) (same). Thompson’s

argument is thus unavailing.

We have considered Thompson’s remaining arguments on appeal and find them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK