          Case: 15-14628   Date Filed: 10/03/2016   Page: 1 of 5


                                                    [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-14628
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 0:01-cv-07874-DTKH


SECURITIES AND EXCHANGE COMMISSION,

                                            Plaintiff - Appellee,

versus


J&J MANAGEMENT CONSULTING,
a.k.a. 1287769 Ontario Inc.,


and


CATERINA JOHNSON,

                                            Defendants - Appellants.

                     ________________________

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

                           (October 3, 2016)
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Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

          Caterina Johnson and J&J Management Consulting (J&J), a Canadian

company wholly-owned by Ms. Johnson, appeal the district court’s denial of their

motion for relief from default judgment under Federal Rule of Civil Procedure 60.

This case stems from a Securities and Exchange Commission (SEC) action against

Paul Johnson—Ms. Johnson’s son—and others for the fraudulent offer and sale of

unregistered securities in Link Express Delivery Solutions, Inc., a company

founded and run by Paul Johnson. The district court entered default judgments

over twelve years ago against J&J and Ms. Johnson as “relief defendants,” for

receiving securities fraud proceeds from Paul Johnson. Ms. Johnson appeals that

judgment for the second time. She proceeded pro se in the first appeal. This is

J&J’s first appeal. 1 The relevant facts are set forth in this court’s previous opinion

addressing Ms. Johnson’s first appeal. See S.E.C. v. Johnson, 436 F. App’x 939

(11th Cir. 2011) (per curiam). Ms. Johnson and J&J make four arguments as to




1
    In the original appeal Ms. Johnson was barred from representing J&J Management pro se.
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why the default judgment should be set aside. We will address each argument in

turn. 2

          Appellants first argue that the original court lacked jurisdiction over them

because the money they received was not from Paul Johnson’s securities fraud but

from legitimate business transactions. As such, there was no jurisdiction and the

judgment is void under Federal Rule of Civil Procedure 60(b)(4). The Supreme

Court has stated “a void judgment is one so affected by a fundamental infirmity

that the infirmity may be raised even after the judgment becomes final. The list of

such infirmities is exceedingly short; otherwise, Rule 60(b)(4)’s exception to

finality would swallow the rule.” United Student Aid Funds, Inc. v. Espinosa, 559

U.S. 260, 270, 130 S. Ct. 1367, 1377 (2010) (citations omitted). Here, while J&J

and Ms. Johnson challenge some of Paul Johnson’s proceeds, they both admit they

retained a portion of those proceeds. This admission is enough to reasonably

confer jurisdiction and does not rise to the level of a “fundamental infirmity.” See

id.

          Appellants next argument is that failure to join J&J Business Management,

Inc., a separate Florida corporation, renders the default judgment void under Rule

60(b)(4) due to a lack of jurisdiction. This argument is meritless. They do not cite


2
 A denial of a motion under Rule 60(b) is typically reviewed for abuse of discretion, but a denial
of a motion under Rule 60(b)(4) is reviewed de novo. See Burke v. Smith, 252 F.3d 1260, 1263
(11th Cir. 2001).
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to any authority supporting such a contention. The alleged failure to join a third

relief defendant does not affect the jurisdiction over either appellant and certainly

does not rise to the level of a “fundamental infirmity.” See id.

       Appellants third argument is that the district court erred by entering

judgment against them—relief defendants—before the liability of the wrongdoing

defendant was adjudicated. This argument was raised by Ms. Johnson in her initial

appeal and we dismissed the argument. See Johnson, 436 F. App’x at 945–46. We

dismiss their attempt at the same argument here.

       Appellants finally argue that the judgment is erroneous because it is larger

than the amount ascribed to Paul Johnson—the wrongdoer defendant. 3 In contrast

to other claims, timeliness is addressed here because the first two arguments were

made under Rule 60(b)(4), which can be made at any time, whereas this claim is

unrelated to Rule 60(b)(4). Oakes v. Horizon Financial, S.A., 259 F.3d 1315, 1317

(11th Cir. 2001). All motions under Rule 60(b) other than those based on Rule

60(b)(4) must be made within a reasonable time. See Fed. R. Civ. P. 60(c). The

district court entered a final judgment in Paul Johnson’s case on June 21, 2007.

J&J did not file a motion challenging its default judgment (which was entered on

May 17, 2002) until February 27, 2015. Waiting over 7 years after the issue arose

3
 We note that the SEC stated in its brief that it will not attempt to recover from Paul Johnson,
Ms. Johnson, and J&J more than the amount Paul Johnson has been ordered to disgorge—
$1,505,850—despite the fact the default judgments against Ms. Johnson and J&J total $2.84
million. See SEC Br. 24 fn. 8.
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and 13 years after default judgment was entered does not constitute a reasonable

time under the circumstances. And if this is the first time Ms. Johnson raises this

issue, she similarly did not file within a reasonable time. Alternatively, if she

raised this issue in her earlier appeal, we are bound by the law-of-the-case doctrine.

      Finding no merit in Appellants arguments, the district court’s ruling is

affirmed.

      AFFIRMED.




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