                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                     FILED
                                                              U.S. COURT OF APPEALS
                                 No. 09-15007                   ELEVENTH CIRCUIT
                                                                 FEBRUARY 23, 2010
                             Non-Argument Calendar
                                                                     JOHN LEY
                           ________________________
                                                                      CLERK

                       D.C. Docket No. 06-60521-CV-WPD

ALBERTO ARANGO,

                                                            Plaintiff-Appellant,

                                        versus

CITY OF MARGATE,

                                                            Defendant-Appellee.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________
                                (February 23, 2010)

Before BARKETT, HULL and COX, Circuit Judges.

PER CURIAM:

      Alberto Arango sued the City of Margate (“the City”) in Florida state court for

violation of his rights under the Family and Medical Leave Act, 29 U.S.C. § 2601 et

seq. The City removed the case to federal district court. In February 2007, the parties
entered into a settlement agreement (“the Agreement”). Under the Agreement, if

certain conditions were met, Arango would receive a preferential promotion within

the City’s fire department. On the parties’ motion and based upon the Agreement, the

district court dismissed the case with prejudice on February 28, 2007. (R.1-16.)

      On June 23, 2009, Arango filed a motion for relief from judgment pursuant to

Federal Rule of Civil Procedure 60(b)(6). (R.1-17.) Arango sought an order setting

aside the dismissal with prejudice on the ground that, at the time the City entered into

the Agreement, it did not intend to promote Arango. Arango argued that the

Agreement was illusory and that the City had acted in bad faith in inducing Arango

to enter the Agreement. He further argued that the City’s bad faith and frustration of

the purpose of the Agreement constituted extraordinary circumstances warranting

relief under Rule 60(b)(6) and cited Keeling v. Sheet Metal Workers Int’l Ass’n,

Local Union 162, 937 F.2d 408 (9th Cir. 1991) in support of that argument. (R.1-17

at 9-10.) As evidence of the City’s bad faith, Arango attached a letter dated

September 23, 2008 and a transcript of an October 30, 2008 meeting of the City’s

Civil Service Board. (Id., Exs. A & B.)        Arango sought the ability to reinstate his

lawsuit under the Act. He did not seek enforcement of the Agreement.

      On August 28, 2009, the district court denied the motion on the ground that it

had not retained jurisdiction over the Agreement and therefore could not enforce it.

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(R.1-23 at 2.) The court stated that, for that reason, relief under Rule 60 was not

warranted. (Id. at 2-3.)

      After review of the record, we find that the district court erred in denying the

motion on the ground that it could not order the relief Arango requested. Arango’s

papers filed in support of his motion acknowledge that the district court did not have

jurisdiction to enforce the Agreement and affirmatively state that Arango did not seek

that remedy. (R.1-17 at 10-11.) In considering whether the argument and evidence

presented by Arango in support of his motion satisfied the Rule 60(b)(6) standard for

relief from the judgment, the district court should have made findings as to whether

Arango’s motion was a timely request for relief as required by Rule 60(c)(1) and

whether the evidence Arango presented in support of his motion was sufficient to

warrant a finding that extraordinary circumstances exist to justify relief from the

judgment under Rule 60(b)(6). See Toole v. Baxter Healthcare Corp., 235 F.3d 1307,

1316 (11th Cir. 2000); Keeling, 937 F.2d at 410.

      We vacate the district court’s August 28, 2009 order and remand the case with

instructions that the district court consider Arango’s motion for relief from the

judgment in the manner discussed above.

      VACATED AND REMANDED.




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