Donna Hand v. Cargill Fertilizer, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 28, 2006
No. 06-12759 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00302-CV-T-30-TGW
DONNA HAND,
individually and as personal
representative of Opal O. Hand's estate,
Plaintiff-Appellant,
JOHN KEITH HAND,
individually and as son of Opal Hand,
JULIE A. HAND,
individually and as daughter of Opal Hand,
Plaintiffs,
versus
CARGILL FERTILIZER, INC.,
a.k.a. Gardinier Inc.,
a.k.a. East Tampa Chemical Plant,
a.k.a. U.S. Phosphoric,
CARGILL, INC.,
parent company of Cargill Fertilizer, Inc.,
CARGILL FERTILIZER, LLC,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 28, 2006)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Donna Hand, individually and as personal representative of the estate of
Opal O. Hand, appeals pro se the denial of (1) her motion for relief from judgment
and (2) her motion to disqualify the district court. In December 2005, we affirmed
the dismissal of Hand’s complaint by the district court. Hand then filed with the
district court a motion for relief from judgment in which she sought, in substance,
relief under Federal Rule of Civil Procedure 60(b). After the district court denied
the motion, Hand filed a motion to disqualify the district court, which the district
court denied. We affirm.
The district court did not abuse its discretion by denying Hand’s motion for
relief from judgment. Waddell v. Hendry County Sheriff’s Office, 329 F.3d 1300,
1309 (11th Cir. 2003) (reviewing denial of relief under Rule 60(b) for abuse of
discretion). Some of the issues raised in Hand’s motion were waived, because
Hand did not argue those issues in the previous appeal to this Court. See Am.
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Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir.
1999) (“[T]he law is clear that Rule 60(b) may not be used to challenge mistakes of
law which could have been raised on direct appeal.”). Consideration of the
remaining issues was barred by the law of the case doctrine. The district court was
bound by our prior decision in this case unless “(1) our prior decision resulted from
a trial where the parties presented substantially different evidence from the case at
bar; (2) subsequently released controlling authority dictates a contrary result; or (3)
the prior decision was clearly erroneous and would work manifest injustice.”
Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285-86 & 1286 n.3 (11th
Cir. 2004). None of these exceptions applies.
We also review for abuse of discretion the decision of a district court not to
recuse itself and will affirm “unless we conclude that the impropriety is clear and
one which would be recognized by all objective, reasonable persons.” United
States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999). Hand does not identify an
extrajudicial source of bias or show that the district court acted with “‘such
pervasive bias and prejudice that it unfairly prejudice[d] one of the parties.’” Id.
(quoting United States v. Ramos, 933 F.3d 968, 973 (11th Cir. 1991)). The district
court did not abuse its discretion by denying Hand’s motion to disqualify.
AFFIRMED.
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