Summary
affirming district court's denial of motion for leave to amend because the plaintiff "had sufficient prior opportunities to amend or supplement the facts alleged in his complaint"
Summary of this case from Bowman v. CitiMortgage, Inc.Opinion
No. 15-40615
11-04-2015
AL WININGER, Plaintiff - Appellant v. BANK OF AMERICA, N.A.; SELECT PORTFOLIO SERVICING, INCORPORATED, Defendants - Appellees
Summary Calendar Appeal from the United States District Court for the Eastern District of Texas
U.S.D.C. No. 4:14-cv-00556-ALM
Before JOLLY, DENNIS, and PRADO, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. --------
Al Wininger ("Wininger") appeals from judgments entered by the district court, Judge Amos L. Mazzant presiding, which granted both Bank of America, N.A.'s and Select Portfolio Servicing, Inc.'s motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure and denied Wininger's motion for leave to file a second amended complaint. After a thorough review of the record, briefs on appeal, and the rulings of the district court, we conclude that the judgment of the district court should be affirmed. The district court properly granted the dismissals due to Wininger's failure to allege facts that would make the claims plausible. Additionally, the district court correctly held that Wininger's claims against Select Portfolio Servicing were barred by res judicata. See United States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007). The district court also did not abuse its discretion in denying Wininger's motion for leave to file a second amended complaint. Among other factors, Wininger had sufficient prior opportunities to amend or supplement the facts alleged in his complaint and a second amended complaint would have been futile. See Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). Therefore, we affirm the decisions of the district court to dismiss Wininger's claims with prejudice and deny his motion for leave to file a second amended complaint.
AFFIRMED.