Case: 19-12112 Date Filed: 07/20/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12112 Non-Argument Calendar ________________________
D.C. Docket No. 1:15-cv-20150-JAL
ROY R. LUSTIG,
Plaintiff–Appellee,
versus
BARBARA STONE,
Defendant–Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 20, 2020)
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-12112 Date Filed: 07/20/2020 Page: 2 of 6
Barbara Stone appeals from the denial of her motion for relief from
judgment. On appeal, she argues that the district court erred in denying her motion
under Federal Rule of Civil Procedure 60(b). We affirm.
This is the third time that we have been called to adjudicate an appeal in the
underlying lawsuit filed by Roy Lustig against Barbara Stone. Lustig filed suit
against Stone in the Southern District of Florida for defamation against him.
During the course of litigation, the district court determined that Stone effectively
stopped defending her position in the lawsuit and issued a default judgment against
her under Federal Rule of Civil Procedure 55. Subsequent proceedings—which
consisted of an evidentiary hearing, a report and recommendation by the magistrate
judge, and an Omnibus Order by the district court fully embracing the magistrate
judge’s recommendations—ultimately culminated in a $1.7 million judgment
against Stone.
Stone’s first appeal was limited to two discrete issues: (1) whether the
district court properly exercised subject-matter jurisdiction over the case, and (2)
whether the district court properly denied Stone’s motion to set aside the default
judgment. We affirmed in both respects in an unpublished opinion. See generally
Lustig v. Stone, 679 F. App’x 743 (11th Cir. 2017).
After the mandate was issued, Stone moved the district court to vacate the
judgment under Rule 60(b). The district court denied the motion. Stone appealed,
2 Case: 19-12112 Date Filed: 07/20/2020 Page: 3 of 6
and we affirmed the denial. See generally Lustig v. Stone, 774 F. App’x 626 (11th
Cir. 2019).
After her second appeal, Stone again moved the district court to vacate the
judgment, this time raising arguments under Rules 60(a), 60(b)(3), 60(b)(4),
60(b)(6), and 60(d)(3). The district court, in a detailed and well-reasoned opinion,
rejected Stone’s arguments. She appeals from this determination.
In addressing Stone’s arguments, we note that many of Stone’s arguments in
the instant (and third) appeal were also raised in her second appeal. The “law of
the case” doctrine establishes that the “conclusions of law by an appellate court are
generally binding in all subsequent proceedings in the same case in the trial court
or on a later appeal.” Original Brooklyn Water Bagel Co. v. Bersin Bagel Grp.,
LLC, 817 F.3d 719, 728 (11th Cir. 2016) (citation omitted).
We take judicial notice under Federal Rule of Evidence 201(b)(2) of Stone’s
brief in her 2019 appeal as a public record. See Rothman v. Gregor, 220 F.3d 81,
92 (2d Cir. 2000) (taking judicial notice of complaint as public record). In her
appeal, she argued that she was denied a fair opportunity to participate in a hearing
before the magistrate judge, that the judgment was entered without due process,
that her due process rights were violated when she was prevented from
participating in the post-default evidentiary hearing, and that the magistrate judge
presided at a hearing without her consent and had no jurisdiction.
3 Case: 19-12112 Date Filed: 07/20/2020 Page: 4 of 6
In our disposition of her second appeal, we ultimately rejected those
arguments. We concluded that “the record reflects that notice of the evidentiary
hearing was mailed to Stone at the address she provided to the district court, so her
due process claims were due to be denied on the merits.” Lustig, 774 F. App’x at
627. We further concluded that “Stone waived her due process arguments by
waiting two years after entry of judgment to raise them. In particular, Stone
appealed the district court’s judgment during this time period but failed to make
any due process argument regarding the evidentiary hearing, or about the
magistrate judge’s appointment.” Id. And because she did not object to “the
district court’s jurisdiction to enter a final judgment . . . any error in the magistrate
judge’s presiding over the evidentiary hearing did not render the judgment void
and does not warrant relief under Rule 60(b)(4).” Id. (citation omitted).
These are nearly identical to the arguments that she raises before us now.
Accordingly, we conclude that, because the 2019 panel considered these claims
and issued legal conclusions disposing of them, the “law of the case” doctrine
precludes us from considering them anew.
The overlap with Stone’s 2019 appeal extends to every issue she raises
before us, save for one: her argument that the plaintiff procured the judgment as a
result of fraud. Stone ostensibly makes two different arguments here: First, she
argues that, under Rule 60(b)(3), the judgment should be set aside because it was
4 Case: 19-12112 Date Filed: 07/20/2020 Page: 5 of 6
procured by fraud. But after the district court denied her Rule 60(b)(3) fraud claim
as time-barred, Stone reasserted the claim as a Rule 60(d)(3) claim of fraud on the
court. The district court denied the claim as having no support aside from Stone’s
conclusory assertions. In her brief on appeal to us, Stone merely repeats those
conclusory allegations.
We affirm the district court’s order in its disposition of the fraud-based
allegations that Stone has raised. First, with respect to her Rule 60(b)(3) motion, it
is time-barred. “A motion under Rule 60(b) must be made within a reasonable
time—and for reasons (1), (2), and (3) [of Rule 60(b)] no more than a year after the
entry of judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).
In Stansell v. Revolutionary Armed Forces of Colombia, we rejected the Rule
60(b)(3) motion when it was filed even a mere five months after the judgment was
issued. 771 F.3d 713, 738 (11th Cir. 2014).
In the instant case, the district court issued its “Omnibus Order”—which
adopted the magistrate judge’s recommendation as to damages and therefore
constitutes the temporal starting point—on December 7, 2015. Stone’s instant
Rule 60(b)(3) motion, which raised the fraud claim, was filed 3 years, 3 months,
and 6 days after the district court’s “Omnibus Order” was issued, a period of time
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Case: 19-12112 Date Filed: 07/20/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12112 Non-Argument Calendar ________________________
D.C. Docket No. 1:15-cv-20150-JAL
ROY R. LUSTIG,
Plaintiff–Appellee,
versus
BARBARA STONE,
Defendant–Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 20, 2020)
Before GRANT, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-12112 Date Filed: 07/20/2020 Page: 2 of 6
Barbara Stone appeals from the denial of her motion for relief from
judgment. On appeal, she argues that the district court erred in denying her motion
under Federal Rule of Civil Procedure 60(b). We affirm.
This is the third time that we have been called to adjudicate an appeal in the
underlying lawsuit filed by Roy Lustig against Barbara Stone. Lustig filed suit
against Stone in the Southern District of Florida for defamation against him.
During the course of litigation, the district court determined that Stone effectively
stopped defending her position in the lawsuit and issued a default judgment against
her under Federal Rule of Civil Procedure 55. Subsequent proceedings—which
consisted of an evidentiary hearing, a report and recommendation by the magistrate
judge, and an Omnibus Order by the district court fully embracing the magistrate
judge’s recommendations—ultimately culminated in a $1.7 million judgment
against Stone.
Stone’s first appeal was limited to two discrete issues: (1) whether the
district court properly exercised subject-matter jurisdiction over the case, and (2)
whether the district court properly denied Stone’s motion to set aside the default
judgment. We affirmed in both respects in an unpublished opinion. See generally
Lustig v. Stone, 679 F. App’x 743 (11th Cir. 2017).
After the mandate was issued, Stone moved the district court to vacate the
judgment under Rule 60(b). The district court denied the motion. Stone appealed,
2 Case: 19-12112 Date Filed: 07/20/2020 Page: 3 of 6
and we affirmed the denial. See generally Lustig v. Stone, 774 F. App’x 626 (11th
Cir. 2019).
After her second appeal, Stone again moved the district court to vacate the
judgment, this time raising arguments under Rules 60(a), 60(b)(3), 60(b)(4),
60(b)(6), and 60(d)(3). The district court, in a detailed and well-reasoned opinion,
rejected Stone’s arguments. She appeals from this determination.
In addressing Stone’s arguments, we note that many of Stone’s arguments in
the instant (and third) appeal were also raised in her second appeal. The “law of
the case” doctrine establishes that the “conclusions of law by an appellate court are
generally binding in all subsequent proceedings in the same case in the trial court
or on a later appeal.” Original Brooklyn Water Bagel Co. v. Bersin Bagel Grp.,
LLC, 817 F.3d 719, 728 (11th Cir. 2016) (citation omitted).
We take judicial notice under Federal Rule of Evidence 201(b)(2) of Stone’s
brief in her 2019 appeal as a public record. See Rothman v. Gregor, 220 F.3d 81,
92 (2d Cir. 2000) (taking judicial notice of complaint as public record). In her
appeal, she argued that she was denied a fair opportunity to participate in a hearing
before the magistrate judge, that the judgment was entered without due process,
that her due process rights were violated when she was prevented from
participating in the post-default evidentiary hearing, and that the magistrate judge
presided at a hearing without her consent and had no jurisdiction.
3 Case: 19-12112 Date Filed: 07/20/2020 Page: 4 of 6
In our disposition of her second appeal, we ultimately rejected those
arguments. We concluded that “the record reflects that notice of the evidentiary
hearing was mailed to Stone at the address she provided to the district court, so her
due process claims were due to be denied on the merits.” Lustig, 774 F. App’x at
627. We further concluded that “Stone waived her due process arguments by
waiting two years after entry of judgment to raise them. In particular, Stone
appealed the district court’s judgment during this time period but failed to make
any due process argument regarding the evidentiary hearing, or about the
magistrate judge’s appointment.” Id. And because she did not object to “the
district court’s jurisdiction to enter a final judgment . . . any error in the magistrate
judge’s presiding over the evidentiary hearing did not render the judgment void
and does not warrant relief under Rule 60(b)(4).” Id. (citation omitted).
These are nearly identical to the arguments that she raises before us now.
Accordingly, we conclude that, because the 2019 panel considered these claims
and issued legal conclusions disposing of them, the “law of the case” doctrine
precludes us from considering them anew.
The overlap with Stone’s 2019 appeal extends to every issue she raises
before us, save for one: her argument that the plaintiff procured the judgment as a
result of fraud. Stone ostensibly makes two different arguments here: First, she
argues that, under Rule 60(b)(3), the judgment should be set aside because it was
4 Case: 19-12112 Date Filed: 07/20/2020 Page: 5 of 6
procured by fraud. But after the district court denied her Rule 60(b)(3) fraud claim
as time-barred, Stone reasserted the claim as a Rule 60(d)(3) claim of fraud on the
court. The district court denied the claim as having no support aside from Stone’s
conclusory assertions. In her brief on appeal to us, Stone merely repeats those
conclusory allegations.
We affirm the district court’s order in its disposition of the fraud-based
allegations that Stone has raised. First, with respect to her Rule 60(b)(3) motion, it
is time-barred. “A motion under Rule 60(b) must be made within a reasonable
time—and for reasons (1), (2), and (3) [of Rule 60(b)] no more than a year after the
entry of judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1).
In Stansell v. Revolutionary Armed Forces of Colombia, we rejected the Rule
60(b)(3) motion when it was filed even a mere five months after the judgment was
issued. 771 F.3d 713, 738 (11th Cir. 2014).
In the instant case, the district court issued its “Omnibus Order”—which
adopted the magistrate judge’s recommendation as to damages and therefore
constitutes the temporal starting point—on December 7, 2015. Stone’s instant
Rule 60(b)(3) motion, which raised the fraud claim, was filed 3 years, 3 months,
and 6 days after the district court’s “Omnibus Order” was issued, a period of time
well in excess of Rule 60(c)(1)’s 1-year requirement. By no measurement was
Stone’s motion “made within a reasonable time.” See Fed. R. Civ. P. 60(c)(1).
5 Case: 19-12112 Date Filed: 07/20/2020 Page: 6 of 6
Accordingly, we do not reach the merits of Stone’s argument in this respect
because her motion is barred as untimely.
And with respect to Stone’s Rule 60(d)(3) argument, we agree with the
district court that Stone has failed to establish fraud on the court by the necessary
clear and convincing evidence. See Booker v. Dugger, 825 F.2d 281, 283–84 (11th
Cir. 1987). As we noted in Booker, “Conclusory averments of the existence of
fraud made on information and belief and unaccompanied by a statement of clear
and convincing probative facts which support such belief do not serve to raise the
issue of the existence of fraud.” Id. (quoting Di Vito v. Fidelity & Deposit Co. of
Md., 361 F.2d 936, 939 (7th Cir. 1966)). Stone’s allegations of fraud on the court
are conclusory and lack sufficient evidence to support them. We affirm as to this
issue.
In sum, we conclude that the district court’s denial of Stone’s second motion
to vacate the judgment was appropriate. Stone’s attempt to relitigate the exact
same issues from her second appeal is barred by the law of the case doctrine, and
her fraud claim (whether considered under Rule 60(b)(3) or Rule 60(d)(3)) is
rejected for the reasons stated above.
AFFIRMED.