USCA11 Case: 22-12010 Document: 14-1 Date Filed: 06/08/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12010
Non-Argument Calendar
____________________
In Re: MARVIN B. SMITH, III,
SHARON H. SMITH,
Debtors.
__________________________________________________
MARVIN B. SMITH, III,
Plaintiff,
SHARON H. SMITH,
Plaintiff-Appellant,
versus
M. DELORES MURPHY,
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2 Opinion of the Court 22-12010
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 2:19-cv-00075-LGW,
Bkcy. No. 2:07-bk-20244-MJK
____________________
Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges.
PER CURIAM:
Sharon Smith, proceeding pro se, 1 appeals the district court’s
orders awarding attorney’s fees and costs to M. Delores Murphy
and denying reconsideration of that award. No reversible error has
been shown; we affirm.
This appeal arises out of extensive litigation stemming from
Marvin2 and Sharon Smith’s bankruptcy proceedings and from
property the Smiths owned on St. Simons Island, Georgia. Perti-
nent to this appeal, the Smiths filed an adversary complaint against
Murphy in the bankruptcy court in 2017. In June 2019, the
1We read liberally briefs filed by pro se litigants. See Timson v. Sampson,
518
F.3d 870, 874 (11th Cir. 2008).
2 Plaintiff Marvin Smith, III, is now deceased.
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22-12010 Opinion of the Court 3
bankruptcy court dismissed the complaint with prejudice. The dis-
trict court affirmed the bankruptcy court’s dismissal on appeal.
The Smiths then sought review of the district court’s order
in this Court. On 18 March 2021, we affirmed the dismissal of the
Smiths’ adversary complaint. See Smith v. Murphy,
849 F. App’x 867
(11th Cir. 2021) (unpublished). We also granted Murphy’s motion
for attorney’s fees and costs. We concluded that sanctions under
Fed. R. App. P. 38 were justified because the arguments raised by
the Smiths on appeal were “frivolous and utterly without merit.”
We remanded to the district court for a determination of the
amount of reasonable attorney’s fees and costs to be awarded. See
id.
On remand, the district court ordered Murphy to file a brief
addressing the appropriate amount of attorney’s fees and costs.
The district court also gave the Smiths 14 days in which to file a
responsive brief. Murphy filed a brief and an affidavit of her lawyer
describing the attorney’s fees and costs incurred during the Smiths’
appeal. The Smiths filed no response.
On 6 April 2022, the district court entered an order awarding
Murphy attorney’s fees and costs in the amount of $5,370.40. This
award amount consisted of 85% of the $6,000 flat-fee charged by
Murphy’s lawyer plus $270.40 in costs.
On 28 April 2022, Smith moved for reconsideration of the
district court’s 6 April 2022 order. Smith argued that the district
court’s award of attorney’s fees was premature because Smith in-
tended to file a petition for writ of certiorari with the Supreme
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4 Opinion of the Court 22-12010
Court, as well as a petition for writ of mandamus. Smith also as-
serted that she was denied her due process rights because she re-
ceived no hearing and received no notice of the district court’s or-
ders, which were mailed to her former address.
The district court denied the motion for reconsideration on
2 May 2022. Smith filed her notice of appeal in the district court
on 3 June 2022.
I.
We first address our jurisdiction over this appeal. Smith’s
notice of appeal was filed more than 30 days after the district
court’s 6 April 2022 order and 2 May 2022 orders and, thus, might
appear untimely for both orders. See Fed. R. App. P. 4(a)(1) (provid-
ing a 30-day time limit for filing a notice of appeal in a civil case);
Fed. R. App. P. 6(b) (making Rule 4(a)(1) applicable to appeals in
bankruptcy cases).
Even if we assume that Smith’s notice of appeal was un-
timely-filed, we nevertheless do have jurisdiction over this appeal.
Because the 30-day time limit applicable to this bankruptcy appeal
is not derived from a statute, it constitutes a non-jurisdictional
claim-processing rule. See
28 U.S.C. § 2107 (providing explicitly that
the statutory time limits for filing an appeal in a civil action “shall
not apply to bankruptcy matters or other proceedings under Title
11”); Hamer v. Neighborhood Hous. Servs. of Chi.,
138 S. Ct. 13, 17
(2017) (“[A] provision governing the time to appeal in a civil action
qualifies as jurisdictional only if Congress sets the time.”). In addi-
tion, Murphy has filed no objection based on timeliness; so, the
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22-12010 Opinion of the Court 5
timeliness issue is forfeited. See Hamer,
138 S. Ct. at 17-18 (explain-
ing that a claim-processing rule may be forfeited if not raised
properly by the appellee).
II.
On appeal, Smith reiterates the arguments raised in her mo-
tion for reconsideration. We note that Smith raises no substantive
challenge to the district court’s manner of calculating the award
amount.
We review for abuse of discretion a district court’s award of
attorney’s fees and a district court’s denial of a motion for recon-
sideration. See In re Home Depot, Inc.,
931 F.3d 1065, 1078 (11th Cir.
2019) (attorney’s fees); Richardson v. Johnson,
598 F.3d 734, 740 (11th
Cir. 2010) (reconsideration). “A motion for reconsideration cannot
be used ‘to relitigate old matters, raise argument or present evi-
dence that could have been raised prior to the entry of judgment.’”
Richardson,
598 F.3d at 740.
Smith first contends that she was denied her Fifth Amend-
ment due process rights because she was not afforded a hearing and
because she received inadequate notice of the district court’s or-
ders. The district court abused no discretion in denying reconsid-
eration on these grounds.
Smith failed to demonstrate that she was entitled to an ac-
tual hearing under the circumstances involved in this case and,
thus, can show no due process violation. Never did Smith request
a hearing following our March 2021 remand to the district court.
And Smith has failed to identify binding legal authority requiring a
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6 Opinion of the Court 22-12010
district court to schedule sua sponte a hearing to determine the rea-
sonable amount of attorney’s fees and costs awarded under Rule
38.
Nor can we conclude that the district court failed to provide
Smith with adequate notice of the district court’s orders. That the
district court mailed the pertinent orders to Smith at the current
address then on file with the district court is undisputed. This mail-
ing constituted adequate notice.3 See Fed. R. Civ. P. 5(b)(2)(C)
(providing that a paper can be served by mailing it to the person’s
last known address).
As Smith acknowledges, she was responsible for keeping the
district court informed of any change of address. See S.D. Ga. R.
11.1 (“Each attorney and pro se litigant has a continuing obligation
to apprise the Court of any address change.”). Smith contends,
however, that she was unable to do so because she suffered from
“debilitating vertigo, which prevented her from sitting and stand-
ing without nausea and vomiting.” But Smith has offered no evi-
dence about the date on which she changed addresses or evidence
showing that her medical conditions existed at the pertinent time.
On this record, the district court acted within its discretion in de-
termining that Smith’s purported medical condition was insuffi-
cient to require reconsideration.
3 Contrary to Smith’s assertion otherwise, neither the district court nor Mur-
phy were required to provide Smith with electronic notice of the pertinent
orders and briefs.
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22-12010 Opinion of the Court 7
Smith also contends that the district court’s 6 April 2022
award of attorney’s fees and costs was premature. Smith says she
is seeking to file with the Supreme Court an out-of-time petition
for writ of certiorari and a petition for writ of mandamus which --
if granted -- might render moot the district court’s award of attor-
ney’s fees. We reject this argument. When the district court issued
the orders challenged on appeal, our 18 March 2021 decision award-
ing attorney’s fees and costs -- and directing the district court to
determine a reasonable award amount on remand -- remained in-
tact. The district court abused no discretion in denying reconsider-
ation based on Smith’s speculation about future events.
Smith has demonstrated no abuse of discretion. We affirm
the district court’s award of attorney’s fees and costs and the district
court’s denial of reconsideration of that award.
AFFIRMED.4
4 In her appellate brief, Smith complains (1) that she was denied a hearing in
other proceedings not before this Court; (2) that she was denied oral argument
in other appeals; and (3) about alleged attorney misconduct in other cases.
These matters are outside the scope of this appeal.
