A&F Bahamas LLC v. Desmond Brunton

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 3, 2020
• Docket: 19-12103
• Status: Unpublished

Opinion

Case: 19-12103 Date Filed: 01/03/2020 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12103 Non-Argument Calendar ________________________

D.C. Docket No. 0:15-cv-60019-RNS

A&F BAHAMAS LLC, a Florida limited liability company,

Plaintiff-Appellee,

versus

WORLD VENTURE GROUP, INC., et. al., a New York corporation,

Defendants,

DESMOND BRUNTON,

Defendant-Appellant, __________________________

Appeal from the United States District Court for the Southern District of Florida _________________________

(January 3, 2020)

Before WILLIAM PRYOR, JILL PRYOR, and ANDERSON, Circuit Judges. Case: 19-12103 Date Filed: 01/03/2020 Page: 2 of 12

PER CURIAM:

Two years after the district court issued a final judgment against him,

Desmond Brunton 1 moved to vacate the judgment under Rule 60(b). The district

court denied Brunton’s motions and he now appeals to us. After carefully

reviewing the facts and record before us, as well as the arguments made by both

parties and the district court’s opinions, we affirm its denial of Brunton’s motions.

I. BACKGROUND

A. The Underlying Litigation

A&F Bahamas LLC (“A&F”) filed the underlying lawsuit in the Southern

District of Florida on January 5, 2015, relating to fallout from the development of a

golf course and resort in the Bahamas. A&F, a corporation formed by Alfred

Abiouness, Jr., and Robert Fortson, sought to construct the Cotton Bay Club in

Eleuthera, Bahamas, as a member of Global Ventures Jersey (“GVJ”). GVJ

claimed that it was approached by Randall Farr and ICON Commercial Lending as

potential direct financiers of GVJ’s obligations, who then connected them with

Desmond Brunton and D. Geno Brunton (Desmond’s son), who were officers of

World Venture Group, Inc., and World Venture Capital, Inc. A&F contracted with

1 Unless specified otherwise, when we refer simply to Brunton hereafter, we refer only to Desmond Brunton.

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the Bruntons to provide financing for its project, but the financing eventually fell

through.

In the instant case, A&F sued the following persons or entities: World

Venture Group, Inc.; World Venture Capital, Inc.; Icon Commercial Lending, Inc.;

both Bruntons; Amy Roy-Haeger; and Farr. Its complaint alleged violations of

several provisions of the Securities Act of 1933; the Florida Securities and Investor

Protection Act; breach of contract; fraudulent misrepresentation; conversion;

negligent misrepresentation; breach of fiduciary duty; and violations of the

Racketeer Influenced and Corrupt Organizations Act.

A&F provided certificates of service for all defendants but Desmond

Brunton. Despite that fact, defense counsel ostensibly appeared on behalf of all the

defendants, including Desmond Brunton. Defendants moved to compel arbitration,

which the court granted. While the arbitration was ongoing, the counsel

representing defendants withdrew its representation and was replaced with the

court’s permission. The arbitrator ultimately found in favor of A&F and awarded

it $1,572,743.88 in damages in April 2016. A&F moved the district court to

confirm the award and enter final judgment against the defendants, which the court

did on August 22, 2016.

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B. Brunton’s Motion to Vacate

On September 20, 2018, Desmond Brunton—through his current counsel at

Akerman LLP—moved the district court to vacate the final judgment under

Federal Rule of Civil Procedure 60(b)(4) and (6). Brunton’s argument is rather

novel. Regarding Rule 60(b)(4), which allows the court to “relieve a party or its

legal representative from a final judgment, order, or proceeding” if “the judgment

is void,” Brunton argued that he was not served with process in the underlying

lawsuit and that the Southern District of Florida lacked personal jurisdiction over

him. And as to Rule 60(b)(6), which allows a district court to relieve a party of a

judgment, order, or proceeding for “any other reason that justifies relief,” Brunton

argues that “attorneys that were never engaged by [him] or authorized to represent

him took multiple positions in this case on his behalf that were contrary to the facts

and against [his] interests.” In other words, the attorneys ostensibly representing

him were not actually representing him, and therefore, he was entitled to relief

from the district court’s order.

A&F responded to Brunton’s motion with a fourfold argument: (1) that

Brunton’s motion was untimely; (2) that Brunton did participate in the litigation;

(3) that Brunton also participated in the arbitration; and (4) that Brunton waived

any defense relating to personal jurisdiction or lack of service of process. A&F

attached to its response several exhibits, including the response filed by Spencer

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Sax of Sax Sachs Caplan, who represented that he was Brunton’s counsel, on

March 4, 2015 (“Exhibit B”); a request for documents filed by Payton Bidari on

December 31, 2015, who ostensibly represented Brunton (“Exhibit E”); an

affidavit sworn by Bidari under penalty of perjury on January 15, 2016, stating that

he represented Brunton (“Exhibit F”); a motion for dismissal filed by Bidari on

Brunton’s behalf on January 15, 2016, which argued, inter alia, that personal

jurisdiction against Brunton “is absent” 2 (“Exhibit H”); a response to A&F’s

request for production of documents filed by Bidari on Brunton’s behalf on

February 3, 2016 (“Exhibit G”); an affidavit from Brunton stating that he had made

travel arrangements to visit his son, Geno Brunton, starting on April 25, 2016, and

that he would be in California until May 1, 2016, or longer (“Exhibit J”); and an

affidavit from attorney Matthew R. Kamula, of Dunlap Bennett & Ludwig PLLC,

stating that he had served Brunton and his son with notices of the arbitration

hearing, supplemented with email messages and postal delivery slips (“Exhibit

K”).

Brunton responded by arguing that there was no time requirement for his

motion; that he was not represented by Sachs Sax Caplan or Dunlap Bennett &

Ludwig PLLC; and that he did not participate in the arbitration proceedings. In an

2 Here, Bidari’s argument was that none of the respondents, including Brunton, “are residents of Florida except for the defunct corporate claimant,” “none of the respondents consented to jurisdiction,” and that “none of the named respondents are present in Florida.”

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attached affidavit (“Exhibit 1”), he stated that he did not engage or authorize

Bidari, Kamula, or their law firms to represent him in the arbitration proceeding.

Brunton subsequently filed several additional documents in support of his

motion. These documents included a retainer agreement produced by Sachs Sax

Caplan signed by Brunton’s son, ostensibly “on behalf of” Brunton (“Exhibit 1”); a

letter from Sachs Sax Caplan stating that it “possesses no information relative to

direct written or oral communications with Desmond Brunton” (“Exhibit 2”); and

an email from Kamula stating that he had no documents in response to A&F’s

request for documents evidencing an attorney-client relationship with Brunton

(“Exhibit 3”).

The district court denied Brunton’s motion. Regarding Brunton’s Rule

60(b)(4) claim, it concluded that Brunton waived his service and personal

jurisdiction-based arguments “because he appeared through counsel and failed to

raise that argument in his motion to dismiss,” in violation of Federal Rule of Civil

Procedure 12(b). Moreover, even assuming arguendo that Brunton was correct

that the counsel ostensibly representing him wasn’t actually doing so, the district

court concluded that the 11-month delay between Brunton’s admitted awareness of

the judgment against him in October 2017 and moving to vacate the judgment in

September 2018 constituted “unjustified delay.” Accordingly, it concluded that

Brunton had sat on his rights and waived his right to object to the judgment under

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Rule 60(b)(4). As to Brunton’s claim under Rule 60(b)(6), the district court

concluded that Brunton had not raised it within a “reasonable time,” as the Rule

requires, and therefore it rejected the argument. Brunton timely appealed to us.

II. DISCUSSION

A district court “may relieve a party or its legal representative from a final

judgment, order, or proceeding” when “the judgment is void” under Rule 60(b)(4)

or for “any other reason that justifies relief” under Rule 60(b)(6). We review the

district court’s ruling on a Rule 60(b)(4) motion de novo, Architectural Ingenieria

Siglo XXI, LLC v. Dominican Republic, 788 F.3d 1329, 1337–38 (11th Cir. 2015)

(citation omitted), and on a Rule 60(b)(6) motion for abuse of discretion. Aldana

v. Del Monte Fresh Produce N.A., Inc., 741 F.3d 1349, 1355 (11th Cir. 2014)

(citation omitted). Brunton seeks to void the district court’s judgment under both

Rule 60(b)(4) and Rule 60(b)(6), and sought to do so in the same motion.

However, because these are different reasons with different requirements and

deadlines, we address them separately.

A. Brunton’s Rule 60(b)(4) Motion

“A judgment can be set aside for voidness [under Rule 60(b)(4)] where the

court lacked jurisdiction or where the movant was denied due process. This

includes lack of personal jurisdiction and defective due process for failure to effect

proper service.” Stansell v. Revolutionary Armed Forces of Colombia, 771 F.3d

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713, 736–37 (11th Cir. 2014) (citations omitted). Unlike most motions for relief

from judgment under Rule 60(b), which are “addressed to the discretion of the

court,” a motion under Rule 60(b)(4) does not present a “question of discretion.”

11 Charles A. Wright et al., Fed. Prac. & Proc. Civ. §§ 2857, 2862 (3d ed. 2019). A

district court’s failure to vacate a void judgment under Rule 60(b)(4) constitutes

“per se abuse of discretion.” De Gazelle Grp., Inc. v. Tamaz Trading

Establishment, 817 F.3d 747, 748 (11th Cir. 2016).

Because of the “jurisdictional and due process concerns” of Rule 60(b)(4)

motions, they are exempted from Rule 60(c)(1)’s timing requirements. Stansell,

771 F.3d at 738. Rule 60(c)(1) ostensibly requires that all motions under Rule

60(b) be “made within a reasonable time,” but this requirement does not apply to a

motion under Rule 60(b)(4). Hertz Corp. v. Alamo Rent-A-Car, 16 F.3d 1126,

1130 (11th Cir. 1994); see also Wright et al., supra § 2862. Instead, they are

subject to “very generous timing considerations.” Stansell, 771 F.3d at 738.

But this generosity only extends so far. It is manifestly not the case that a

Rule 60(b)(4) motion can be raised at any time under any circumstances. Instead,

even though Rule 60(c)(1)’s “reasonable time” requirement does not apply to Rule

60(b)(4) motions, litigants are nonetheless required to diligently pursue their rights.

In other words, “Rule 60(b)(4) does not provide a license for litigants to sleep on

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their rights.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 275

(2010).

Brunton’s argument here is essentially that: (1) the district court erred by

determining that he waived his objections by failing to include them in his first

responsive pleadings, because those pleadings were not filed by attorneys who

actually represented him; and (2) the district court ran afoul of our precedent by

determining that he sat on his rights.

Like the district court before us, we need not reach Brunton’s first argument

because we elect to affirm on our analysis of his second argument. See Am.

United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1059 (11th Cir. 2007) (“[W]e

may . . . affirm a district court’s decision to grant or deny a motion for any

reason[.]”). Brunton’s narrative, as we understand it, is that at least three lawyers

and law firms each decided, independently, to misrepresent that they represented

him, resulting in their filing responsive pleadings on Brunton’s behalf that failed to

timely raise the Rule 12(b)(6) objections that he now alleges. However, we

respectfully decline Brunton’s invitation to wade through the record and determine

whether this unusual narrative is grounded in fact or fiction.

Instead, we determine that, by failing to pursue relief under Rule 60(b)(4)

until more than 2 years had elapsed since the district court issued its judgment and

11 months after Brunton admits he was made aware of the judgment, Brunton sat

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on his rights. His argument here—that the district court misunderstood our

caselaw—itself misunderstands our caselaw. As we have explained, though Rule

60(b)(4) is not subject to Rule 60(c)(1)’s “reasonable time” requirement, that does

not mean it is subject to no temporal requirements. Stansell, 771 F.3d at 737–38.

In Stansell, we held that the district court properly denied the party’s Rule 60(b)(4)

motion to vacate the court’s order granting a writ of garnishment when he

“knowingly sat on his rights for nine months before filing anything at all with the

district court[.]” Id. at 737 (emphasis added).

Even assuming, arguendo, that Brunton’s narrative is an accurate description

of what happened, he nonetheless admits that he was aware of the district court’s

judgment by October 2017, when he learned that A&F “was attempting to enforce

a judgment entered against [him] in this action in Barbados.” He then waited

eleventh months to file his Rule 60(b)(4) motion. Brunton’s argument here is

weaker than the movant’s argument in Stansell, where the movant waited nine

months to move the court to vacate its order. Accordingly, we affirm as to this

ground.

B. Brunton’s Rule 60(b)(6) Motion

A Rule 60(b)(6) motion allows a party to request that the district court

vacate its judgment for “any other reason” not covered by the remainder of Rule

60(b) “that justifies relief.” This is “an extraordinary remedy[.]” Ritter v. Smith,

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811 F.2d 1398, 1400 (11th Cir. 1987). We have “carefully constrained this open-

ended language,” Aldana v. Del Monte Fresh Produce N.A., Inc., 741 F.3d 1349,

1355 (11th Cir. 2014), and require that movants “demonstrate ‘that the

circumstances are sufficiently extraordinary to warrant relief.’” Cano v. Baker,

435 F.3d 1337, 1342 (11th Cir. 2006) (quoting Toole v. Baxter Healthcare Corp.,

235 F.3d 1307, 1317 (11th Cir. 2000). Accordingly, we leave it to “the district

court’s discretion to grant it in order to do justice,” Ritter, 811 F.2d at 1400, and on

appeal, a movant “must demonstrate a justification so compelling that the court

was required to vacate its order.” Solaroll Shade and Shutter Corp . v. Bio-Energy

Sys., Inc., 803 F.2d 1130, 1132 (11th Cir. 1986).

Moreover, unlike Rule 60(b)(4) motions, a Rule 60(b)(6) motion is

constrained by Rule 60(c)(1)’s requirement that the motion “be made within a

reasonable time.” See Stansell, 771 F.3d at 738. Though Rule 60(c)(1) establishes

a one-year limit on when Rule 60(b)(6) motions can be filled, we have previously

rejected a motion as unreasonably filed when the movant waited only five months

to file it. Id. at 737.

We note at the outset that we have never determined that the specific facts

alleged by Brunton—that lawyers who purported to represent a party, but didn’t

actually, filed pleadings on his behalf, and damaged his interests in so doing—fall

within the extraordinary circumstances required by Rule 60(b)(6). But we see no

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need to determine whether these facts, in a timely filed Rule 60(b)(6) motion,

would present a compelling enough justification for the district court to have been

effectively required to grant it. In a well-reasoned opinion, the district court took a

reasonable view of the evidence and determined, based on our precedent, that

Brunton’s motion failed to comply with Rule 60(c)(1)’s temporal requirement. We

cannot say that this decision was an abuse of discretion. Accordingly, we affirm as

to this ground.

III. CONCLUSION

Ultimately, we conclude that the district court properly denied Brunton’s

motions under Rule 60(b)(4) and Rule 60(b)(6) to vacate its judgment. The district

court correctly concluded that Brunton sat on his rights for too long before filing

the present motion, thereby failing to comply with Rule 60(b)(4)’s requirement that

a movant diligently pursue his rights. Similarly, we conclude that the district court

did not commit an abuse of discretion in concluding that Brunton’s Rule 60(b)(6)

motion failed to comply with Rule 60(c)(1)’s requirement that it be made “within a

reasonable time.” Accordingly, the district court’s decision is

AFFIRMED.