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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12528
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-00200-CMS
ISAAC COOK,
Plaintiff - Appellee,
versus
FURNITURE MARKETING DIRECT, LLC,
Defendant,
JOSEPH SCOTT HOLLIDAY,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(July 24, 2019)
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Before MARTIN, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
Joseph Scott Holliday appeals the district court’s order and judgment
assessing Isaac Cook’s attorney’s fees against him. In the district court, Holliday
was represented by counsel at the outset of the case, but his counsel withdrew
while the litigation remained pending. According to Holliday, he received no
notice of Cook’s motion for attorney’s fees or any of the items filed on the district
court’s docket after his counsel withdrew and before the court assessed attorney’s
fees against him. Holliday argues that the district court’s attorney’s fees
assessment was erroneous based on this lack of notice. Because Holliday failed to
bring this argument before the district court, however, we are constrained to affirm.
I. BACKGROUND
We limit our recitation of the facts to the procedural history of this case
because the underlying facts are irrelevant to our disposition of this appeal.
Isaac Cook brought this action against Furniture Marketing Direct, LLC, and
Holliday, alleging claims for employment discrimination and retaliation under
42 U.S.C. § 1981, as well as a claim for retaliation under the Fair Labor Standards
Act, 29 U.S.C. § 215(a)(3). Both defendants timely answered. Following
discovery, Furniture Marketing Direct and Holliday moved for summary judgment.
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Before the court decided the summary judgment motion, Cook filed a
suggestion of bankruptcy, notifying the court that Furniture Marketing Direct had
filed a voluntary petition for Chapter 11 bankruptcy and that the action was subject
to an automatic stay only as to Furniture Marketing Direct, pursuant to 11 U.S.C.
§ 362(a). William Ney, up until this point counsel for both defendants, then moved
to withdraw his representation for both defendants. The magistrate judge granted
Ney’s motion to withdraw and ordered Holliday to advise the court as to whether
he intended to obtain replacement counsel or proceed pro se. After hearing
nothing from Holliday, the magistrate judge ordered him to show cause why the
court should not enter a default judgment against him for failing to comply with
her earlier order. Again lacking any response from Holliday, the magistrate judge
denied as moot the motion for summary judgment with respect to Holliday only
and directed the clerk to enter default against him. The magistrate judge then
ordered Cook to apply for a default judgment. After Cook filed an application for
a default judgment, the court granted the application, and the clerk entered a
default judgment against Holliday.
Following the entry of default judgment, Cook filed a motion for attorney’s
fees. Cook requested attorney’s fees in the amount of $50,393.75. The magistrate
judge entered an order assessing Cook’s attorney’s fees of $50,393.75 against
Holliday. The district court clerk entered a judgment to the same effect. The
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magistrate judge then ordered the case administratively closed for the pendency of
Furniture Marketing Direct’s bankruptcy proceeding.
This is Holliday’s appeal.
II. STANDARD OF REVIEW
We review for abuse of discretion a district court’s award of attorney’s fees.
Rath v. Marcoski,
898 F.3d 1306, 1309 (11th Cir. 2018) (internal quotation marks
omitted). “An abuse of discretion occurs if the court fails to apply the proper legal
standard or to follow proper procedures in making the determination, or bases an
award upon findings of fact that are clearly erroneous.”
Id. (internal quotation
marks omitted).
III. DISCUSSION
Holliday argues that the district court violated Federal Rule of Civil
Procedure 77(d)(1) by failing to provide him with notice of Cook’s motion for
attorney’s fees, or of any of the proceedings that occurred after Ney withdrew as
his counsel and before the court entered its judgment assessing attorney’s fees
against him. After Holliday learned of the district court’s attorney’s fees award, he
had the option of moving that court for reconsideration of its assessment on the
same grounds on which he now bases his appeal. Holliday filed no motion for
reconsideration, however. By forgoing presentation to the district court of the
notice issue he now raises on appeal, Holliday has left us with no district court
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determination of that issue to review. Therefore, we cannot say, on the grounds
urged by Holliday, that the district court committed an abuse of discretion. See,
e.g., Smith v. Psychiatric Sols., Inc.,
750 F.3d 1253, 1262 (11th Cir. 2014) (“The
district court cannot abuse its discretion by failing to consider arguments that are
not before it.”). Accordingly, we affirm the district court’s attorney’s fees award.
We note, though, that nothing in this opinion shall prohibit Holliday from
seeking relief from the district court, pursuant to Federal Rule of Civil Procedure
60(b)(4), for the attorney’s fees award. See Fed. R. Civ. P. 60(b)(4) (“On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding [because] . . . the judgment is void . . . .”); see also
Stansell v. Revolutionary Armed Forces of Colom.,
771 F.3d 713, 737 (11th Cir.
2014) (“Voidness for purposes of a 60(b)(4) motion contemplates lack of
jurisdiction or defects in due process that deprive a party of notice or an
opportunity to be heard.”); Oldfield v. Pueblo De Bahia Lora, S.A.,
558 F.3d 1210,
1217 (11th Cir. 2009) (“[A] district court’s failure to vacate a void judgment is per
se an abuse of discretion.”); see generally 11 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2862 (3d ed. 2019) (“[T]here is no time
limit on an attack on a judgment as void.”).
AFFIRMED.
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