            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                                                           [DO NOT PUBLISH]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:
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      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 We affirmed in both respects in an unpublished opinion.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,



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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.



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      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



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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).



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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.




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