Case: 19-10499 Date Filed: 01/29/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10499 Non-Argument Calendar ________________________
D.C. Docket No. 4:17-cv-00502-WS-CAS
ADA ALBORS GONZALEZ,
Plaintiff-Appellant,
versus
FEDERAL NATIONAL MORTGAGE ASSOCIATION, CORPORATION ORGANIZED AND EXHISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(January 29, 2020) Case: 19-10499 Date Filed: 01/29/2020 Page: 2 of 7
Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiff Ada Albors Gonzalez, proceeding pro se,1 appeals the district
court’s denial of her Fed. R. Civ. P. 60(b) motion for relief. No reversible error
has been shown; we affirm.
Plaintiff filed in state court this civil action against Federal National
Mortgage Association (“Fannie Mae”), challenging the already ongoing state-court
foreclosure proceedings on Plaintiff’s home in Winter Park, Florida. Fannie Mae
removed this case to federal district court based on diversity jurisdiction and
moved to dismiss Plaintiff’s complaint.
Because the separate state-court foreclosure proceedings were still underway
when this civil action was filed, the district court determined that it should abstain
from consideration of Plaintiff’s claims here, pursuant to the Colorado River2
abstention doctrine. On 5 June 2018, the district court granted Fannie Mae’s
1 We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
2 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
2 Case: 19-10499 Date Filed: 01/29/2020 Page: 3 of 7
motion to dismiss: in reality, not dismissing -- but staying this case -- pending
resolution of the earlier-filed and related state-court foreclosure proceedings.3
Plaintiff filed no appeal to the district court’s 5 June order. 4
In December 2018, Plaintiff filed pro se a motion for relief -- pursuant to
Rule 60(b) -- from “all voidable and or void orders.” In pertinent part, Plaintiff
asserted that the district court’s orders removing Plaintiff’s case to federal court
and staying Plaintiff’s case were “void” or “voidable” based on Fannie Mae’s
purported fraud on the court and the district court’s lack of jurisdiction. The
district court denied Plaintiff’s Rule 60(b) motion.
Briefly stated, Plaintiff asserts on appeal that she is entitled to relief under
Rule 60(b) because Fannie Mae purportedly lied to the district court to invoke
improperly federal subject matter jurisdiction. Plaintiff also contends that the
district court violated her due process rights by not conducting an evidentiary
hearing on Plaintiff’s Rule 60(b) motion.
3 We have said that “a stay, not a dismissal, is the proper procedural mechanism for a district court to employ when deferring to a parallel state-court proceeding under the Colorado River doctrine.’” Moorer v. Demopolis Waterworks & Sewer Bd., 374 F.3d 994, 998 (11th Cir. 2004).
4 The district court’s 5 June order constituted a final and appealable order. See Ambrosia Coal & Constr. Co. v. Morales, 368 F.3d 1320, 1327 n.15 (11th Cir. 2004) (“Abstention orders staying litigation under the Colorado River doctrine are final and, therefore, appealable under 28 U.S.C. § 1291.”). 3 Case: 19-10499 Date Filed: 01/29/2020 Page: 4 of 7
The scope of our review on appeal is limited to addressing “the propriety of
the denial or grant of relief” under Rule 60(b): we will not consider the underlying
judgment. Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332,
1338 (11th Cir. 1999).
We review for abuse of discretion the district court’s denial of a motion for
relief under Rule 60(b)(3). Stansell v. Revolutionary Armed Forces of Colom.,
771 F.3d 713, 734 (11th Cir. 2014). To obtain relief under Rule 60(b)(3), the
moving party must prove, “by clear and convincing evidence that an adverse party
has obtained the verdict through fraud, misrepresentation, or other misconduct.”
Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2007).
The moving party must also show that the opposing party’s misconduct prevented
her from fully and fairly presenting her case. Frederick v. Kirby Tankships, Inc.,
205 F.3d 1277, 1287 (11th Cir. 2000).
We review de novo a district court’s denial of a motion under Rule 60(b)(4)
to set aside a judgment for voidness. Stansell, 771 F.3d at 736. Rule 60(b)4) is no
substitute for a timely appeal: the Rule “applies only in the rare instance where a
judgment is premised either on a certain type of jurisdictional error or on a
violation of due process that deprives a party of notice or the opportunity to be
heard.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010).
4 Case: 19-10499 Date Filed: 01/29/2020 Page: 5 of 7
Under Rule 60(b)(6) -- the “catchall provision” -- a court may relieve a party
from a final judgment for “any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(6). We have said that Rule 60(b)(6) relief “is an extraordinary remedy
which may be invoked only upon a showing of exceptional circumstances.”
Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). A party seeking
relief under Rule 60(b)(6) “has the burden of showing that absent such relief, an
‘extreme’ and ‘unexpected’ hardship will result.” Id.
The district court committed no error in denying Plaintiff’s Rule 60(b)
motion. For purposes of determining diversity jurisdiction, Fannie Mae is
designated by statute as a citizen of the District of Columbia. See 12 U.S.C. §
1717(a)(2)(B). Accordingly, Plaintiff cannot show by clear and convincing
evidence that Fannie Mae mispresented fraudulently law or facts about its
citizenship. Plaintiff has thus shown no grounds for relief under Rule 60(b)(3).
Plaintiff has also failed to show either an underlying jurisdictional error or a
due process violation that would warrant relief under Rule 60(b)(4). This Court
has already concluded -- based in part on a notarized statement from Plaintiff
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Case: 19-10499 Date Filed: 01/29/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10499 Non-Argument Calendar ________________________
D.C. Docket No. 4:17-cv-00502-WS-CAS
ADA ALBORS GONZALEZ,
Plaintiff-Appellant,
versus
FEDERAL NATIONAL MORTGAGE ASSOCIATION, CORPORATION ORGANIZED AND EXHISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(January 29, 2020) Case: 19-10499 Date Filed: 01/29/2020 Page: 2 of 7
Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiff Ada Albors Gonzalez, proceeding pro se,1 appeals the district
court’s denial of her Fed. R. Civ. P. 60(b) motion for relief. No reversible error
has been shown; we affirm.
Plaintiff filed in state court this civil action against Federal National
Mortgage Association (“Fannie Mae”), challenging the already ongoing state-court
foreclosure proceedings on Plaintiff’s home in Winter Park, Florida. Fannie Mae
removed this case to federal district court based on diversity jurisdiction and
moved to dismiss Plaintiff’s complaint.
Because the separate state-court foreclosure proceedings were still underway
when this civil action was filed, the district court determined that it should abstain
from consideration of Plaintiff’s claims here, pursuant to the Colorado River2
abstention doctrine. On 5 June 2018, the district court granted Fannie Mae’s
1 We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
2 Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
2 Case: 19-10499 Date Filed: 01/29/2020 Page: 3 of 7
motion to dismiss: in reality, not dismissing -- but staying this case -- pending
resolution of the earlier-filed and related state-court foreclosure proceedings.3
Plaintiff filed no appeal to the district court’s 5 June order. 4
In December 2018, Plaintiff filed pro se a motion for relief -- pursuant to
Rule 60(b) -- from “all voidable and or void orders.” In pertinent part, Plaintiff
asserted that the district court’s orders removing Plaintiff’s case to federal court
and staying Plaintiff’s case were “void” or “voidable” based on Fannie Mae’s
purported fraud on the court and the district court’s lack of jurisdiction. The
district court denied Plaintiff’s Rule 60(b) motion.
Briefly stated, Plaintiff asserts on appeal that she is entitled to relief under
Rule 60(b) because Fannie Mae purportedly lied to the district court to invoke
improperly federal subject matter jurisdiction. Plaintiff also contends that the
district court violated her due process rights by not conducting an evidentiary
hearing on Plaintiff’s Rule 60(b) motion.
3 We have said that “a stay, not a dismissal, is the proper procedural mechanism for a district court to employ when deferring to a parallel state-court proceeding under the Colorado River doctrine.’” Moorer v. Demopolis Waterworks & Sewer Bd., 374 F.3d 994, 998 (11th Cir. 2004).
4 The district court’s 5 June order constituted a final and appealable order. See Ambrosia Coal & Constr. Co. v. Morales, 368 F.3d 1320, 1327 n.15 (11th Cir. 2004) (“Abstention orders staying litigation under the Colorado River doctrine are final and, therefore, appealable under 28 U.S.C. § 1291.”). 3 Case: 19-10499 Date Filed: 01/29/2020 Page: 4 of 7
The scope of our review on appeal is limited to addressing “the propriety of
the denial or grant of relief” under Rule 60(b): we will not consider the underlying
judgment. Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332,
1338 (11th Cir. 1999).
We review for abuse of discretion the district court’s denial of a motion for
relief under Rule 60(b)(3). Stansell v. Revolutionary Armed Forces of Colom.,
771 F.3d 713, 734 (11th Cir. 2014). To obtain relief under Rule 60(b)(3), the
moving party must prove, “by clear and convincing evidence that an adverse party
has obtained the verdict through fraud, misrepresentation, or other misconduct.”
Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2007).
The moving party must also show that the opposing party’s misconduct prevented
her from fully and fairly presenting her case. Frederick v. Kirby Tankships, Inc.,
205 F.3d 1277, 1287 (11th Cir. 2000).
We review de novo a district court’s denial of a motion under Rule 60(b)(4)
to set aside a judgment for voidness. Stansell, 771 F.3d at 736. Rule 60(b)4) is no
substitute for a timely appeal: the Rule “applies only in the rare instance where a
judgment is premised either on a certain type of jurisdictional error or on a
violation of due process that deprives a party of notice or the opportunity to be
heard.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010).
4 Case: 19-10499 Date Filed: 01/29/2020 Page: 5 of 7
Under Rule 60(b)(6) -- the “catchall provision” -- a court may relieve a party
from a final judgment for “any other reason that justifies relief.” Fed. R. Civ. P.
60(b)(6). We have said that Rule 60(b)(6) relief “is an extraordinary remedy
which may be invoked only upon a showing of exceptional circumstances.”
Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). A party seeking
relief under Rule 60(b)(6) “has the burden of showing that absent such relief, an
‘extreme’ and ‘unexpected’ hardship will result.” Id.
The district court committed no error in denying Plaintiff’s Rule 60(b)
motion. For purposes of determining diversity jurisdiction, Fannie Mae is
designated by statute as a citizen of the District of Columbia. See 12 U.S.C. §
1717(a)(2)(B). Accordingly, Plaintiff cannot show by clear and convincing
evidence that Fannie Mae mispresented fraudulently law or facts about its
citizenship. Plaintiff has thus shown no grounds for relief under Rule 60(b)(3).
Plaintiff has also failed to show either an underlying jurisdictional error or a
due process violation that would warrant relief under Rule 60(b)(4). This Court
has already concluded -- based in part on a notarized statement from Plaintiff
establishing Plaintiff’s Florida citizenship -- that complete diversity of citizenship
existed between the parties at the time of removal. Because Plaintiff’s allegations
also satisfy the amount-in-controversy requirement, federal diversity jurisdiction
5 Case: 19-10499 Date Filed: 01/29/2020 Page: 6 of 7
existed when Plaintiff’s case was removed to the district court. See 28 U.S.C. §
1332; MacGinnitie v. Hobbs Grp., LLC, 420 F.3d 1234, 1239 (11th Cir. 2005).
Nor were the district court’s orders void for lack of personal jurisdiction. A
district court has power to exercise personal jurisdiction over a defendant if, among
other things, the defendant waives its objection to service of process. In re
Worldwide Web Sys., Inc., 328 F.3d 1291, 1299 (11th Cir. 2003). Because Fannie
Mae raised no objection to personal jurisdiction in the district court, that objection
was waived; and the district court exercised properly personal jurisdiction over
Fannie Mae.
Plaintiff’s due process argument is also without merit. The district court
need not conduct an evidentiary hearing on a Rule 60(b) motion unless a hearing is
necessary to aid the district court’s analysis. See Cano v. Baker, 435 F.3d 1337,
1342-43 (11th Cir. 2006). Given the record in this case, we cannot say that a
hearing was necessary for the proper consideration and adjudication of Plaintiff’s
motion. Moreover, Plaintiff was permitted to present arguments in support of her
motion, received actual notice of the magistrate judge’s recommendation, and filed
timely objections to that recommendation, which were considered by the district
court before the district court ruled on Plaintiff’s motion. See United Student Aid
Funds, Inc., 559 U.S. at 272 (“Due process requires notice reasonably calculated,
6 Case: 19-10499 Date Filed: 01/29/2020 Page: 7 of 7
under all the circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.” (quotations
omitted)).
Plaintiff has failed to demonstrate that she is entitled to relief under either
Rule 60(b)(3) or (b)(4). Nor has Plaintiff shown “exceptional circumstances” that
would compel relief under Rule 60(b)(6). We affirm the district court’s denial of
Plaintiff’s Rule 60(b) motion for relief.
AFFIRMED.