Case: 19-11127 Date Filed: 01/30/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11127 Non-Argument Calendar ________________________
D.C. Docket No. 9:14-cv-80323-DPG
DANIEL IMPERATO,
Plaintiff-Appellant,
versus
THE HARTFORD INSURANCE CO.,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(January 30, 2020)
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 19-11127 Date Filed: 01/30/2020 Page: 2 of 7
The appellant Daniel Imperato is a business owner. He claims that he
bought insurance for his business from the appellee Hartford Fire Insurance
Company. After Hartford denied a claim under the insurance policy, Imperato
sued Hartford for damages in the Southern District of Florida. He did so under the
court’s diversity jurisdiction, yet he failed to allege his state of citizenship.
The district court first dismissed his complaint for failure to serve Hartford.
On appeal, we were unsure whether Imperato had properly alleged diversity of
citizenship. So we vacated the dismissal and remanded to the district court to
consider the issue. After the district court ordered the parties to clarify their
citizenship, Imperato filed an unsworn pleading claiming that he resided in Florida.
Again, he failed to allege facts establishing his citizenship.
Citing Imperato’s omission, a magistrate judge recommended that the
district court dismiss the case for failure to establish diversity jurisdiction.
Imperato objected. He claimed, again in an unsworn pleading, that he consistently
lived in Florida since 1978 and that he had homestead records to prove it. The
district court was unconvinced. It agreed with the magistrate judge, vacated the
order dismissing the case for lack of service, and dismissed the case for lack of
jurisdiction instead.
Imperato appealed. We dismissed the appeal for want of prosecution. The
case was over.
2 Case: 19-11127 Date Filed: 01/30/2020 Page: 3 of 7
Then, more than three years later, Imperato moved the district court to
reopen his case under Fed. R. Civ. P. 60(b). He said that he had new evidence
showing that he had properly served Hartford and that Hartford had fraudulently
said otherwise. The district court denied the motion, noting that it had ultimately
dismissed the case not for failure to serve Hartford, but for lack of diversity
jurisdiction. Undeterred, Imperato moved for reconsideration, advancing the same
arguments he made in his first motion, and adding that the dismissal order was
void, that he had established jurisdiction, and that there were other compelling
reasons to grant relief. Equally undeterred, the district court denied the motion.
Imperato now appeals both the denial of the Rule 60(b) motion and the
denial of the motion for reconsideration. After review, we affirm.
I.
We generally review the denial of a Rule 60(b) motion for abuse of
discretion, though we review Rule 60(b)(4) issues de novo. Burke v. Smith, 252
F.3d 1260, 1263 (11th Cir. 2001). We also review a district court’s denial of a
motion for reconsideration for abuse of discretion. Richardson v. Johnson, 598
F.3d 734, 740 (11th Cir. 2010). Generally, an “abuse of discretion can occur
where the district court applies the wrong law, follows the wrong procedure, bases
its decision on clearly erroneous facts, or commits a clear error in judgment.”
United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). To show that the
3 Case: 19-11127 Date Filed: 01/30/2020 Page: 4 of 7
district court abused its discretion in denying Rule 60(b) relief, a party must also
show that it would have been permissible to grant the Rule 60(b) motion, and that
denying the motion was “sufficiently unwarranted.” Griffin v. Swim-Tech Corp.,
722 F.2d 677, 680 (11th Cir. 1984). This requires a justification so compelling that
the district court was required to vacate its order. Cano v. Baker, 435 F.3d 1337,
1342 (11th Cir. 2006).
Rule 60(b) provides for relief from final judgments or orders in limited
circumstances. One justification is newly discovered evidence that the movant
could not have discovered earlier with due diligence. Fed. R. Civ. P. 60(b)(2).
Another is fraud, misrepresentation, or misconduct by an opposing party. Id. at
60(b)(3). Yet another is proof that the judgment is void. Id. at 60(b)(4). And there
is a catch-all provision, permitting relief for any other justifiable reason. Id. at
60(b)(6). A party can move for relief under Rule 60(b) relief within a “reasonable
time” or, for relief under (b)(1), (2), and (3), within a year of the judgment or
order. Fed. R. Civ. P. 60(c)(1).
Evidence that would not produce a new result cannot merit relief under Rule
60(b)(2). See Willard v. Fairfield S. Co., 472 F.3d 817, 824 (11th Cir. 2006).
Relief under Rule 60(b)(3) requires that the moving party prove by clear and
convincing evidence that the adverse party obtained the verdict through fraud,
misrepresentations, or other misconduct. Frederick v. Kirby Tankships, Inc., 205
4 Case: 19-11127 Date Filed: 01/30/2020 Page: 5 of 7
F.3d 1277, 1287 (11th Cir. 2000). Under Rule 60(b)(4), a judgment is void if the
court that rendered it lacked subject matter jurisdiction, jurisdiction over the
parties, if the court acted in a manner inconsistent with due process, or if the court
was powerless to enter the judgment. Burke, 252 F.3d at 1263. And relief under
Rule 60(b)(6) is an extraordinary remedy, invokable only in exceptional
circumstances that, without relief, would cause extreme and unexpected hardship.
Griffin, 722 F.2d at 680. As for a follow-up motion for reconsideration, the motion
cannot be used to relitigate old matters or present arguments or evidence that the
movant could have raised before the entry of judgment. Richardson, 598 F.3d at
740.
District courts have federal diversity jurisdiction over controversies between
citizens of different states, where the amount in controversy exceeds $75,000. 28
U.S.C. § 1332(a)(1). In the context of diversity jurisdiction, a party’s citizenship is
its domicile, and the party invoking diversity jurisdiction must provide facts
supporting it. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). A
person’s domicile is the place of his true, fixed, and permanent home and principal
establishment, and to which he has the intention of returning whenever he is gone.
Id. at 1257–58.
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Case: 19-11127 Date Filed: 01/30/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11127 Non-Argument Calendar ________________________
D.C. Docket No. 9:14-cv-80323-DPG
DANIEL IMPERATO,
Plaintiff-Appellant,
versus
THE HARTFORD INSURANCE CO.,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(January 30, 2020)
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 19-11127 Date Filed: 01/30/2020 Page: 2 of 7
The appellant Daniel Imperato is a business owner. He claims that he
bought insurance for his business from the appellee Hartford Fire Insurance
Company. After Hartford denied a claim under the insurance policy, Imperato
sued Hartford for damages in the Southern District of Florida. He did so under the
court’s diversity jurisdiction, yet he failed to allege his state of citizenship.
The district court first dismissed his complaint for failure to serve Hartford.
On appeal, we were unsure whether Imperato had properly alleged diversity of
citizenship. So we vacated the dismissal and remanded to the district court to
consider the issue. After the district court ordered the parties to clarify their
citizenship, Imperato filed an unsworn pleading claiming that he resided in Florida.
Again, he failed to allege facts establishing his citizenship.
Citing Imperato’s omission, a magistrate judge recommended that the
district court dismiss the case for failure to establish diversity jurisdiction.
Imperato objected. He claimed, again in an unsworn pleading, that he consistently
lived in Florida since 1978 and that he had homestead records to prove it. The
district court was unconvinced. It agreed with the magistrate judge, vacated the
order dismissing the case for lack of service, and dismissed the case for lack of
jurisdiction instead.
Imperato appealed. We dismissed the appeal for want of prosecution. The
case was over.
2 Case: 19-11127 Date Filed: 01/30/2020 Page: 3 of 7
Then, more than three years later, Imperato moved the district court to
reopen his case under Fed. R. Civ. P. 60(b). He said that he had new evidence
showing that he had properly served Hartford and that Hartford had fraudulently
said otherwise. The district court denied the motion, noting that it had ultimately
dismissed the case not for failure to serve Hartford, but for lack of diversity
jurisdiction. Undeterred, Imperato moved for reconsideration, advancing the same
arguments he made in his first motion, and adding that the dismissal order was
void, that he had established jurisdiction, and that there were other compelling
reasons to grant relief. Equally undeterred, the district court denied the motion.
Imperato now appeals both the denial of the Rule 60(b) motion and the
denial of the motion for reconsideration. After review, we affirm.
I.
We generally review the denial of a Rule 60(b) motion for abuse of
discretion, though we review Rule 60(b)(4) issues de novo. Burke v. Smith, 252
F.3d 1260, 1263 (11th Cir. 2001). We also review a district court’s denial of a
motion for reconsideration for abuse of discretion. Richardson v. Johnson, 598
F.3d 734, 740 (11th Cir. 2010). Generally, an “abuse of discretion can occur
where the district court applies the wrong law, follows the wrong procedure, bases
its decision on clearly erroneous facts, or commits a clear error in judgment.”
United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). To show that the
3 Case: 19-11127 Date Filed: 01/30/2020 Page: 4 of 7
district court abused its discretion in denying Rule 60(b) relief, a party must also
show that it would have been permissible to grant the Rule 60(b) motion, and that
denying the motion was “sufficiently unwarranted.” Griffin v. Swim-Tech Corp.,
722 F.2d 677, 680 (11th Cir. 1984). This requires a justification so compelling that
the district court was required to vacate its order. Cano v. Baker, 435 F.3d 1337,
1342 (11th Cir. 2006).
Rule 60(b) provides for relief from final judgments or orders in limited
circumstances. One justification is newly discovered evidence that the movant
could not have discovered earlier with due diligence. Fed. R. Civ. P. 60(b)(2).
Another is fraud, misrepresentation, or misconduct by an opposing party. Id. at
60(b)(3). Yet another is proof that the judgment is void. Id. at 60(b)(4). And there
is a catch-all provision, permitting relief for any other justifiable reason. Id. at
60(b)(6). A party can move for relief under Rule 60(b) relief within a “reasonable
time” or, for relief under (b)(1), (2), and (3), within a year of the judgment or
order. Fed. R. Civ. P. 60(c)(1).
Evidence that would not produce a new result cannot merit relief under Rule
60(b)(2). See Willard v. Fairfield S. Co., 472 F.3d 817, 824 (11th Cir. 2006).
Relief under Rule 60(b)(3) requires that the moving party prove by clear and
convincing evidence that the adverse party obtained the verdict through fraud,
misrepresentations, or other misconduct. Frederick v. Kirby Tankships, Inc., 205
4 Case: 19-11127 Date Filed: 01/30/2020 Page: 5 of 7
F.3d 1277, 1287 (11th Cir. 2000). Under Rule 60(b)(4), a judgment is void if the
court that rendered it lacked subject matter jurisdiction, jurisdiction over the
parties, if the court acted in a manner inconsistent with due process, or if the court
was powerless to enter the judgment. Burke, 252 F.3d at 1263. And relief under
Rule 60(b)(6) is an extraordinary remedy, invokable only in exceptional
circumstances that, without relief, would cause extreme and unexpected hardship.
Griffin, 722 F.2d at 680. As for a follow-up motion for reconsideration, the motion
cannot be used to relitigate old matters or present arguments or evidence that the
movant could have raised before the entry of judgment. Richardson, 598 F.3d at
740.
District courts have federal diversity jurisdiction over controversies between
citizens of different states, where the amount in controversy exceeds $75,000. 28
U.S.C. § 1332(a)(1). In the context of diversity jurisdiction, a party’s citizenship is
its domicile, and the party invoking diversity jurisdiction must provide facts
supporting it. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). A
person’s domicile is the place of his true, fixed, and permanent home and principal
establishment, and to which he has the intention of returning whenever he is gone.
Id. at 1257–58. A plaintiff claiming diversity jurisdiction must allege the
citizenship of each party. Travaglio v. Am. Express Co., 735 F.3d 1266, 1268
(11th Cir. 2013). If the complaint does not allege the parties’ citizenship and the
5 Case: 19-11127 Date Filed: 01/30/2020 Page: 6 of 7
plaintiff does not cure this deficiency, then the district court must dismiss the
complaint. Id. If evidence in the record remedies a jurisdictional deficiency, a
court need not dismiss a case for lack of diversity jurisdiction. Id. at 1269. But we
do not consider a statement in an unsworn brief as evidence. See id. And
residence does not equate to citizenship. See id.
II.
We make short work of Imperato’s claims. For starters, Imperato’s Rule
60(b) motion is untimely; it was filed more than three years after the order
dismissing his case. His claims under Rule 60(b)(2)-(3) have exceeded their one-
year expiration date. And Imperato gives us no reason to think that a delay of
more than three years was “reasonable” here.
Even if his Rule 60(b) motion were timely, it fails on the merits. The gist of
his argument is that he has new evidence showing that he properly served Hartford.
But the district did not dismiss his case for failure to serve Hartford; it dismissed
the case because Imperato failed to establish diversity of citizenship. Any new
evidence about service would not justify a new result. See Willard, 472 F.3d at
824. Any “fraud” Hartford committed about receiving service did not affect the
district court’s decision dismissing the case for lack of diversity. See Frederick,
205 F.3d at 1287. Imperato’s new evidence does not render the dismissal void.
Burke, 252 F.3d at 1263. Nor does he point us to any extreme or unexpected
6 Case: 19-11127 Date Filed: 01/30/2020 Page: 7 of 7
hardship that would follow if the case remains closed. Griffin, 722 F.2d at 680.
Nothing in his motion makes us think the district court was required to vacate its
prior order dismissing the case for lack of jurisdiction. See Cano, 435 F.3d at
1342. And his motion for reconsideration merely echoed these arguments to
differing degrees, presenting nothing new of substance or merit. See Richardson,
598 F.3d at 740.
In short, the district court did not abuse its discretion in denying Imperato’s
Rule 60(b) motion and motion for reconsideration.
The district court’s judgment is AFFIRMED.