USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12732
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cv-02787-VMC-AEP
ANGELA W. DEBOSE,
Plaintiff - Appellant,
versus
USF BOARD OF TRUSTEES, et al.,
Defendants,
UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES,
ELLUCIAN COMPANY, L.P.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 21, 2021)
Before JILL PRYOR, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 2 of 10
Angela DeBose, proceeding pro se, appeals the denial of her post-trial Fed.
R. Civ. P. 60(d) motion for fraud on the court, the denial of her request for an
evidentiary hearing, and the denial of her motion to reassign or recuse the
magistrate judge in an employment-discrimination lawsuit, No. 15-cv-02787
(DeBose I). DeBose also challenges the dismissal of her “Independent Action for
Relief from Judgment to Remedy Fraud on the Court,” which she filed in No. 19-
cv-01132 (DeBose II). DeBose presents five issues on appeal. First, she argues
that the district court erred in DeBose II by dismissing her claim without
considering its merits. Second, she argues that the district court abused its
discretion by denying her Rule 60(d) motion because evidence in the record
demonstrates the existence of fraud. Third, DeBose argues that the district court
abused its discretion by failing to hold an evidentiary hearing in conjunction with
her Rule 60(d) motion for fraud on the court. Fourth, DeBose argues that the
magistrate judge abused his discretion when he delayed denying her motion to
reassign or recuse him and then denied the motion as moot. Finally, DeBose
moves for sanctions. For the reasons explained below, we affirm, and we deny
DeBose’s motion for sanctions.
2
USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 3 of 10
I
DeBose’s litigation has a long and eventful history, the relevant portions of
which we discuss below. DeBose filed a lawsuit in DeBose I against her former
employer, the University of South Florida Board of Trustees (USFBOT) and
Ellucian Company, for unlawful discrimination, retaliation, breach of contract,
tortious interference with a business relationship, and civil conspiracy. DeBose
later filed a motion for sanctions against USFBOT for destroying discoverable
documents, including her employment files and contracts. The magistrate judge
denied the motion, holding that DeBose had not established bad faith on the part of
USFBOT. DeBose filed another motion for sanctions, which the magistrate judge
again denied, citing DeBose’s failure to provide new or additional evidence that
USFBOT acted in bad faith. Ellucian and USFBOT moved for summary judgment
on several of DeBose’s claims, which the district court granted in part and denied
in part.
DeBose then filed a “Motion for Relief from Judgment for Fraud” for the
concealment of her 2015 employment contract. The district court denied the
motion. DeBose filed a third motion for sanctions, which the district court denied
as a “thinly-veiled” attempt to challenge the district court’s summary-judgment
order. The case proceeded to trial, where the jury returned a verdict in favor of
DeBose on her retaliation claim. DeBose filed a fourth motion for sanctions
3
USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 4 of 10
against USFBOT. The district court granted USFBOT’s motion for judgment as a
matter of law, overturned the jury’s verdict on DeBose’s retaliation claim, and
denied DeBose’s motion for sanctions.
Debose filed an “Independent Action for Relief from Judgment to Remedy
Fraud on the Court” in DeBose II, alleging that USFBOT and others had engaged
in a scheme to commit perjury and fraud. The district court dismissed Debose II,
holding that DeBose was seeking relief pursuant to Rule 60(b) based on fraud on
the court and that the “crux” of DeBose II was that the judgment in DeBose I had
been tainted by fraud. The district court concluded that DeBose could file a
motion in DeBose I pursuant to Rule 60(b).
DeBose then filed an “Independent Action for Relief from Judgment to
Remedy Fraud on the Court” under Rule 60(d)(1) and Rule 60(d)(3) in DeBose I.
DeBose also filed a “Motion for Reassignment of a New Magistrate or
Alternatively Recusal of Judge Anthony E. Porcelli” and a “Motion for Evidentiary
Hearing with Witness Testimony.” Because the district court denied the Rule
60(d) motion and the motion for an evidentiary hearing, the magistrate judge
denied DeBose’s motion to reassign or recuse as moot. DeBose now appeals.
II
The first issue on appeal is whether this Court has jurisdiction to consider
the district court’s order denying DeBose’s “Independent Action for Relief from
4
USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 5 of 10
Judgment to Remedy Fraud on the Court” in DeBose II. This Court must examine
jurisdiction sua sponte, Adams v. Monumental Gen. Cas. Co.,
541 F.3d 1276, 1277
(11th Cir. 2008), and it reviews jurisdictional issues de novo.
Id.
Under 28 U.S.C.§ 1291, appellate courts “shall have jurisdiction of appeals
from all final decisions of the district courts of the United States[.]” However, “a
timely and properly filed notice of appeal is a mandatory prerequisite to appellate
jurisdiction.” Holloman v. Mail-Well Corp.,
443 F.3d 832, 844 (11th Cir. 2006).
The Supreme Court, which has identified the timely filing of a notice of appeal as a
jurisdictional requirement, has made clear that courts have “no authority to create
equitable exceptions to jurisdictional requirements.” Bowles v. Russell,
551 U.S.
205, 214 (2007). Federal Rule of Appellate Procedure 3(c)(1) sets out three
requirements for a notice of appeal: it must (1) “specify the party or parties taking
the appeal by naming each one in the caption or body of the notice”; (2) “designate
the judgment, order, or part thereof being appealed”; and (3) “name the court to
which the appeal is taken.” “Although we generally construe a notice of appeal
liberally, we will not expand it to include judgments and orders not specified
unless the overriding intent to appeal these orders is readily apparent on the face of
the notice.” Osterneck v. E.T. Barwick Indus., Inc.,
825 F.2d 1521, 1528 (11th Cir.
1987), aff’d sub nom. Osterneck v. Ernst & Whinney,
489 U.S. 169 (1989).
5
USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 6 of 10
Here, DeBose never filed a notice of appeal in DeBose II. DeBose did file a
notice of appeal in DeBose I, but that notice does not specify her intent to appeal
the order in DeBose II, nor is such intent “readily apparent on the face of the
notice.” Osterneck,
825 F.2d at 1528. Accordingly, this Court lacks jurisdiction to
review the district court’s order dismissing DeBose’s “Independent Action for
Relief from Judgment to Remedy Fraud on the Court” in DeBose II.
III
Second, we consider whether the district court abused its discretion in
denying DeBose’s Rule 60(d) motion in DeBose I. We review the denial of a Rule
60(b)(3) motion for an abuse of discretion. Cox Nuclear Pharm., Inc. v. CTI, Inc.,
478 F.3d 1303, 1314 (11th Cir. 2007). We thus apply this same standard to our
review of the denial of DeBose’s Rule 60(d)(3) motion, which, like Rule 60(b)(3),
concerns “fraud on the court.”
A movant who seeks relief from the judgment based on fraud on the court
must establish fraud by clear and convincing evidence.
Id. at 1314. Fraud on the
court embraces “only that species of fraud which does or attempts to, defile the
court itself, or is a fraud perpetrated by officers of the court so that the judicial
machinery cannot perform in the usual manner its impartial task of adjudging
cases.” Travelers Indem. Co. v. Gore,
761 F.2d 1549, 1551 (11th Cir. 1985)
(holding that perjury does not constitute fraud on the court under Rule 60(d)(3))
6
USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 7 of 10
(quotation marks omitted). It is thus only egregious misconduct—such as an
“unconscionable plan or scheme” to influence the court’s decision—that
constitutes fraud on the court. See Rozier v. Ford Motor Co.,
573 F.2d 1332, 1338
(5th Cir. 1978). We have made clear that a plaintiff “cannot use an independent
action as a vehicle for the relitigation of issues.” Travelers,
761 F.2d at 1552.
Here, DeBose has heavily litigated USFBOT’s alleged fraud, shredding of
documents, and presenting false affidavits and perjurious testimony. DeBose’s
Rule 60(d)(3) motion concerns these same issues. DeBose would not be entitled to
relief under Rule 60(d)(3) on this ground alone. See Travelers,
761 F.2d at 1552.
But even if DeBose’s Rule 60(d)(3) motion did not relitigate old issues, it fails for
an independent reason—DeBose does not establish anything resembling an
“unconscionable plan or scheme” by clear and convincing evidence. Although
DeBose claims that she has new evidence of fraud on the court, this evidence either
duplicates existing evidence or could have been previously submitted to the district
court. The district court therefore did not abuse its discretion in denying DeBose’s
Rule 60(d) motion for fraud on the court.
IV
We must also determine whether the district court erred by denying DeBose’s
Rule 60(d) motion without an evidentiary hearing in DeBose I. We review a
7
USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 8 of 10
district court’s refusal to hold an evidentiary hearing for abuse of discretion. Cliff
v. Payco Gen. Am. Credits, Inc.,
363 F.3d 1113, 1121 (11th Cir. 2004). We have
held that where “[a]n evidentiary hearing would have served no useful purpose in
aid of the court’s analysis,” a court does not abuse its discretion by failing to hold
one. Cano v. Baker,
435 F.3d 133, 1342–43 (11th Cir. 2006). Here, the issues that
DeBose presented had been repeatedly litigated in the district court, and DeBose
presented no new substantive evidence. Accordingly, an evidentiary hearing
would have served no useful purpose and the district court did not abuse its
discretion by failing to hold one.
V
We next determine whether the magistrate judge erred by denying DeBose’s
motion to reassign or recuse as moot. We review the denial of a reassignment or
recusal motion for abuse of discretion. Loranger v. Stierheim,
10 F.3d 776, 779
(11th Cir. 1994). A federal court may not decide moot questions. See St. Pierre v.
United States,
319 U.S. 41, 42 (1943). An action is generally considered moot
when any determination of the matter will have no practical effect on the parties.
See United States Parole Comm’n v. Geraughty,
445 U.S. 388, 396 (1980). Here,
DeBose filed a motion to reassign or recuse the magistrate judge prior to the
rulings on her Rule 60(d) motion and her motion for an evidentiary hearing. Once
rulings had been made on the Rule 60(d) motion and the motion for evidentiary
8
USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 9 of 10
hearing by the district court judge—and not, notably, by the magistrate judge—any
ruling on the motion to reassign or recuse would have no practical effect on the
parties. The magistrate judge thus did not abuse his discretion by denying the
motion as moot. Accordingly, we affirm.
VI
Finally, we address DeBose’s motion for sanctions in this appeal. Rule 38
provides that “[i]f a court of appeals determines that an appeal is frivolous, it may,
after a separately filed motion or notice from the court and reasonable opportunity
to respond, award just damages and single or double costs to the appellee.” Fed. R.
App. P. 38. For purposes of Rule 38 sanctions, a claim is frivolous if it is “utterly
devoid of merit.” Bonfiglio v. Nugent,
986 F.2d 1391, 1393 (11th Cir. 1993). By
its plain terms, however, Rule 38 applies against appellants and in favor of
appellees. Accordingly, we deny DeBose’s motion for sanctions.
VII
To sum up, we conclude that: (1) this Court lacks jurisdiction to review the
district court’s order dismissing DeBose’s “Independent Action for Relief from
Judgment to Remedy Fraud on the Court” in DeBose II; (2) the district court did
not abuse its discretion in denying DeBose’s Rule 60(d) motion; (3) the district
court did not abuse its discretion by denying DeBose’s Rule 60(d) motion without
an evidentiary hearing; (4) the magistrate judge did not abuse his discretion by
9
USCA11 Case: 20-12732 Date Filed: 01/21/2021 Page: 10 of 10
denying DeBose’s motion to reassign or recuse as moot; and (5) DeBose’s motion
for sanctions is denied.
AFFIRMED and DENIED.
10
