USCA11 Case: 21-14120 Date Filed: 09/16/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14120
Non-Argument Calendar
____________________
MARIE L. HENRY,
Plaintiff-Appellant,
versus
CITY OF MOUNT DORA,
BRETT LIVINGSTON,
In his Official and Individual Capacities,
T. RANDALL SCOGGINS,
In his Official and Individual Capacities,
DEPARTMENT OF JUVENILE JUSTICE,
KACEY EDMONDSON,
In her Official and Individual Capacities, et al.,
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2 Opinion of the Court 21-14120
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:18-cv-01325-CEM-GJK
____________________
Before LUCK, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Marie Henry, proceeding pro se, appeals the district court’s
denial of her Federal Rule of Civil Procedure 60(b)(4), (d)(3) motion
seeking relief from the court’s order dismissing her federal claims
raised pursuant to several federal statutes, and remanding to state
court her state law claims raised pursuant to Florida state law. Af-
ter filing an ethics complaint against one of the defendants and a
pro se motion to disqualify a judge in a predatory lending case,
Henry was referred to a Florida Bar grievance committee on two
counts of misconduct and, after disciplinary proceedings that she
challenged as defective, she was suspended for 6 months. She orig-
inally filed her complaint in Florida state court, but the Florida Bar
removed her case to the United States District Court for the Middle
District of Florida.
On appeal, she argues, first, that the district court erred by
denying her Rule 60 motion as untimely. Second, she contends
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21-14120 Opinion of the Court 3
that the court abridged her due process right to an impartial tribu-
nal, notice, and an opportunity to be heard by dismissing her fed-
eral claims where the defendants did not unanimously consent to
removal, the court judicially noticed facts without a hearing, and
the judge was a member of an adverse party. Third, she asserts
that the court erred by failing to analyze fraud on the court. Fi-
nally, she argues that the court’s denial of an extension to file ob-
jections to a magistrate judge’s report and recommendation vio-
lated
28 U.S.C. § 2072.
I.
We review de novo the denial of a motion to set aside a judg-
ment for voidness under Rule 60(b)(4). Stansell v. Revolutionary
Armed Forces of Colom.,
771 F.3d 713, 736 (11th Cir. 2014). Mo-
tions pursuant to Rule 60(b)(4) are not subject to a reasonable time-
liness requirement or a typical laches analysis.
Id. at 737-38. But
“Rule 60(b)(4) does not provide a license for litigants to sleep on
their rights.” United Student Aid Funds, Inc. v. Espinosa,
559 U.S.
260, 275 (2010). When considering whether a movant slept on her
rights, we have noted that subject matter jurisdiction cannot be
waived and have addressed the merits of the movant’s jurisdic-
tional argument. See Stansell, 771 F.3d at 737 (holding that movant
waived “his right to object to any defects in the service of process
or to any denial of his right to be heard” because he “sat on his
rights for nine months” but addressing alleged jurisdiction issues).
We may affirm for any reason supported by the record. Bircoll v.
Miami-Dade Cnty.,
480 F.3d 1072, 1088 n.21 (11th Cir. 2007).
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4 Opinion of the Court 21-14120
Here, the district court applied a reasonable time require-
ment to Henry’s Rule 60(b)(4) motion, but that requirement was
inappropriate. See Stansell, 771 F.3d at 737. However, Henry sat
on her rights by waiting more than 2 years to file her Rule 60(b)(4)
motion. See id. at 737-38. Thus, we affirm the district court as to
any issues raised by Henry that do not relate to subject matter ju-
risdiction because she slept on her rights for over two years.
Bircoll,
480 F.3d at 1088 n.21. Like in Stansell, however, we next
consider Henry’s arguments that the district court lacked subject
matter jurisdiction. See Stansell, 771 F.3d at 737.
II.
Federal Rule of Civil Procedure 60(b)(4) provides relief from
a final judgment or order if the judgment is void. Fed. R. Civ. P.
60(b)(4). A judgment is not void under Rule 60(b)(4) merely be-
cause it was erroneous. Espinosa,
559 U.S. at 270. Generally, it is
void solely if it is premised on a jurisdictional error depriving the
court of even arguable jurisdiction or on a due process violation
that deprived a party of notice or the opportunity to be heard. See
id. at 271. Federal courts always have jurisdiction to determine
their own jurisdiction. In re Nica Holdings, Inc.,
810 F.3d 781, 789
(11th Cir. 2015). The Rooker-Feldman1 doctrine is a narrow juris-
dictional doctrine concerning a court’s subject matter jurisdiction
1 Rooker v. Fid. Tr. Co.,
263 U.S. 413 (1923); D.C. Court of Appeals v. Feld-
man,
460 U.S. 462 (1983).
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21-14120 Opinion of the Court 5
that bars parties who lose a case in state court from appealing their
loss in a federal district court. Behr v. Campbell,
8 F.4th 1206, 1208
(11th Cir. 2021); Alvarez v. Att’y Gen for Fla.,
679 F.3d 1257, 1264
(11th Cir. 2012). Neither res judicata nor the requirement that all
defendants consent to removal is jurisdictional. See Narey v. Dean,
32 F.3d 1521, 1524-25 (11th Cir. 1994); In re Bethesda Mem’l Hosp.,
Inc.,
123 F.3d 1407, 1410 n.2 (11th Cir. 1997).
An appellant abandons any argument not briefed before us,
made in passing, or raised briefly without supporting arguments or
authority. Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324,
1330 (11th Cir. 2004); Sapuppo v. Allstate Floridian Ins. Co.,
739
F.3d 678, 681 (11th Cir. 2014). We can consider sua sponte an aban-
doned issue if a forfeiture exception applies and extraordinary cir-
cumstances warrant review. United States v. Campbell,
26 F.4th
860, 873 (11th Cir. 2022) (en banc), petition for cert. filed (U.S. May
17, 2022) (No. 21-1468).
Here, Henry was not entitled to relief pursuant to her Rule
60(b)(4) motion because she did not identify any jurisdictional de-
fect depriving the district court of arguable jurisdiction. See Espi-
nosa,
559 U.S. at 271. The requirement that all defendants consent
to removal is not jurisdictional. See In re Bethesda Mem’l Hosp.,
Inc.,
123 F.3d at 1410 n.2. Res judicata is not jurisdictional either.
Narey,
32 F.3d at 1524–25. Moreover, to the extent Henry argues
that the district court erred by concluding the Rooker-Feldman
doctrine applied, that is an argument over which the court had ju-
risdiction because a court always has jurisdiction to determine its
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6 Opinion of the Court 21-14120
own jurisdiction. See In re Nica Holdings, Inc., 810 F.3d at 789.
Moreover, Henry points to no error in the district court’s applica-
tion of the doctrine, nor to any other possible jurisdictional prob-
lem that might have deprived the district court of arguable jurisdic-
tion. Thus, we affirm the district court’s denial of Henry’s Rule
60(b)(4) motion.
III.
We review a district court’s denial of a Rule 60(d)(3) motion
for relief from a judgment due to the opposing party’s fraud on the
court for abuse of discretion. See Cox Nuclear Pharm., Inc. v. CTI,
Inc.,
478 F.3d 1303, 1314 (11th Cir. 2007) (Rule 60(b)(3) motion).
Rule 60 does not limit a court’s power to set aside a judgment for
fraud on the court. Fed. R. Civ. P 60(d)(3). A movant must prove
fraud on the court with clear and convincing evidence. See Booker
v. Dugger,
825 F.2d 281, 283-84 (11th Cir. 1987) (appealing denial
of Rule 60(b) motion after denial of § 2254 petition). Fraud on the
court is limited to exceptional conduct like bribery or evidence fal-
sification involving an attorney. Rozier v. Ford Motor Co.,
573
F.2d 1332, 1338 (5th Cir. 1978) (prior version of Rule 60). We have
held that, in independent actions challenging a judgment for fraud
on the court, the alleged fraud must not have been raised in the
original litigation, and it must not have been possible for the com-
plaining party to raise the issue through reasonable diligence. See
Travelers Indem. Co. v. Gore,
761 F.2d 1549, 1552 (11th Cir. 1985).
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21-14120 Opinion of the Court 7
Here, the district court addressed fraud on the court, and it
correctly found that Henry failed to show sufficiently egregious
conduct. The conduct Henry points to on appeal, even if true, does
not fall within the category of egregious conduct that can consti-
tute fraud on the court, but instead amounts to, at most, arguably
erroneous legal arguments, or conduct that occurred before she
filed her complaint, neither of which come close to the necessary
showing of fraud on the court. See Rozier,
573 F.2d at 1338. Fur-
thermore, she does not challenge any conduct that was not raised
before her Rule 60 motion or that she could not have raised
through reasonable diligence. See Travelers Indem. Co.,
761 F.2d
at 1552; Bircoll,
480 F.3d at 1088 n.21. Thus, we affirm the denial
of her Rule 60(d)(3) motion.
IV.
We review a district court’s denial of a motion for extension
of time for abuse of discretion. See Lizarazo v. Miami-Dade Corr.
& Rehab. Dep’t,
878 F.3d 1008, 1010-11 (11th Cir. 2017) (extension
of time to file motion for substitution). A request for an extension
should be granted if good cause is shown. Fed. R. Civ. P. 6(b).
Here, Henry arguably has shown good cause for an exten-
sion in her motion for an extension to file objections to the magis-
trate judge’s report and recommendation concerning her Rule 60
motion because she asserted that she did not receive the report and
recommendation until after the time for her to file objections had
passed and she had been occupied caring for a family member. We
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8 Opinion of the Court 21-14120
assume arguendo that she showed good cause for an extension.
However, the consequence for failing to object to the magistrate’s
report and recommendation is waiver of the right to challenge
those issues on appeal. 11th Cir. R. 3-1. Because we have reviewed
Henry’s arguments as if she had not waived them for failing to ob-
ject, we affirm the denial of her motion for the reasons discussed
above. See R. 3-1; Fed. R. Civ. P. 6(b).
AFFIRMED.
