            Case: 14-12303   Date Filed: 04/16/2015   Page: 1 of 8


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-12303
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 5:99-cv-00119-LC-WCS



MARVIN C. GILL,

                                                           Plaintiff-Appellant,

                                 versus

SGT. DAVID WELLS,
SGT. HOWELL,
JEFFRY D. PIPPIN,
CO REYNOLDS,
SUPT. H. ALFORD, et al.,

                                                       Defendants-Appellees.

                        ________________________

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

                               (April 16, 2015)

Before TJOFLAT, HULL and WILSON, Circuit Judges.
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PER CURIAM:

      In this 42 U.S.C. § 1983 action, Plaintiff Marvin Gill, pro se, appeals the

district court’s order refusing to allow him to file his 2014 motion for relief from

the 2004 judgment. After review, we affirm.

                                      I. FACTS

      In 1999, Plaintiff Gill, a Florida prisoner, brought a § 1983 action against six

state prison officials, alleging, inter alia, claims of excessive force. After the

district court denied the Defendants’ motion for summary judgment on Gill’s

excessive force claims, Gill retained counsel. Shortly before trial, the parties

entered into settlement negotiations and reached a verbal agreement to settle.

      On June 2, 2004, the Defendants’ counsel advised the district court that the

parties had settled the case, and the district court entered an order dismissing Gill’s

action. The district court retained jurisdiction for sixty days—until August 1,

2004—to amend, vacate or set aside the dismissal order if the settlement was not

consummated. Over the course of the next two months, the attorneys for the

parties disagreed about the precise terms of the settlement agreement. On July 21,

2004, Gill’s attorney advised the Defendants’ attorney that he had “no choice but

to seek judicial intervention.” However, Gill did not do so before the August 1,

2004 deadline.




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       Instead, Gill waited until September 7, 2004 to file a petition to enforce the

settlement agreement, advising the district court that the parties were unable to

execute a formal settlement agreement. In response, the Defendants quoted at

length from the district court’s dismissal order and argued that because the motion

was not filed within the required sixty-day period, the district court lacked

jurisdiction to enforce the settlement. On September 30, 2004, the district court

denied Gill’s petition because the deadline for reinstating Gill’s case had expired,

and the district court no longer had jurisdiction to provide the relief Gill sought.

Gill did not file a Rule 60(b) motion at that time or appeal the district court’s 2004

order. 1

       Over eight years later, on June 28, 2012, Gill filed a Motion for Relief from

Order of Dismissal. On July 6, 2012, the district court entered an order returning

Gill’s motion and explaining that Gill’s case had been “closed on June 2, 2004

upon entry of a final judgment.” Gill did not appeal the district court’s 2012 order.

       About two years later, on May 1, 2014, Gill filed another Motion for Relief

from Order of Dismissal. On May 6, 2014, the district court entered an order again



       1
         According to Gill’s appeal brief, Gill filed a 2006 action to enforce the settlement in
Florida state court, which was dismissed. In addition, Gill filed a 2008 action in federal district
court against the attorneys in the Florida Attorney General’s office who negotiated the settlement
on behalf of the Defendants, alleging that the attorneys tortiously interfered with the settlement
contract. The district court dismissed Gill’s 2008 action for lack of subject matter jurisdiction.
See Gill v. McCollum, 4:08-cv-376, 2008 WL 4540275 (N.D. Fla. Oct. 9, 2008). This Court
affirmed. See Gill v. McCollum, 361 F. App’x 69 (11th Cir. 2010).
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returning Gill’s motion and explaining that Gill’s case was closed. Gill filed this

appeal of the district court’s May 6, 2014 order.



                                      II. DISCUSSION

       On appeal, Gill states that he filed his motion pursuant to Federal Rule of

Civil Procedure 60(b)(4) and (6). According to Gill, the basis for his Rule 60(b)

motion is that the underlying 2004 judgment in his case is void because neither he

nor his attorney received notice at the time that the district court intended to

dismiss his action or that the action had been dismissed. Gill contends that his

delay in filing his Rule 60(b) motion was caused by his hospitalization for

complications from open heart surgery and an infected pacemaker beginning in

2010 and extending for “a considerable amount of time.” 2

       Under Rule 60(b)(4), a district court “may relieve a party . . . from a final

judgment, order, or proceeding [if] the judgment is void.” Fed. R. Civ. P. 60(b)(4).

A judgment is “void” under Rule 60(b)(4) “if the court that rendered it lacked

jurisdiction of the subject matter, or of the parties, or if it acted in a manner

inconsistent with due process of law.” Burke v. Smith, 252 F.3d 1260, 1263 (11th

Cir. 2001) (quotation marks omitted).


       2
         We review a district court’s denial of Rule 60(b)(6) motion only for an abuse of
discretion, but review de novo a district court’s denial of a Rule 60(b)(4) motion. Burke v.
Smith, 252 F.3d 1260, 1263 (11th Cir. 2001).
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      Under Rule 60(b)(6), a district court may set aside a final judgment for “any

other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). Relief under Rule

60(b)(6) “is an extraordinary remedy which may be invoked only upon a showing

of exceptional circumstances.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680

(11th Cir. 1984). Even when the movant shows exceptional circumstances, the

decision “whether to grant the requested relief is a matter for the district court’s

sound discretion.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th

Cir. 2000) (quotation marks and alteration omitted). Accordingly, to prevail on

appeal, the “appellant must demonstrate a justification so compelling that the

[district] court was required to vacate its order.” Solaroll Shade & Shutter Corp.,

v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1132 (11th Cir. 1986).

      Generally, Rule 60(b) motions “must be made within a reasonable time.”

Fed. R. Civ. P. 60(c)(1). What constitutes a “reasonable time” depends upon the

circumstances of each case, including “whether the parties have been prejudiced by

the delay and whether a good reason has been presented for failing to take action

sooner.” BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271, 1275 (11th

Cir. 2008) (quotation marks omitted).

      We have indicated, however, that the time for filing a Rule 60(b)(4) motion

“is not constrained by reasonableness.” Hertz Corp. v. Alamo Rent-A-Car, Inc., 16

F.3d 1126, 1130 (11th Cir. 1994). Nonetheless, it is not error for a district court to


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deny a Rule 60(b)(4) motion where the party seeking relief “knowingly sat on his

rights,” and “does not give an acceptable reason for this delay.” Stansell v.

Revolutionary Armed Forces of Colombia, 771 F.3d 713, 736-38 (11th Cir. 2014)

(involving a Rule 60(b)(4) movant who claimed he had no notice of garnishment

proceedings but did not explain why he waited nine months after becoming aware

of the judgment to file his motion); see also United Student Aid Funds, Inc. v.

Espinosa, 559 U.S. 260, 275, 130 S. Ct. 1367, 1380 (2010) (“Rule 60(b)(4) does

not provide a license for litigants to sleep on their rights.”).

      Here, the district court did not commit reversible error when it refused to

accept for filing Gill’s Rule 60(b) motion filed in 2014. This was Gill’s second

such motion and was filed almost ten years after the 2004 judgment was entered

and the case was closed. The choice to refuse to accept Gill’s motion was within

the district court’s inherent power to manage its docket. See Smith v. Psychiatric

Solutions, Inc., 750 F.3d 1253, 1262 (11th Cir. 2014), cert. denied, No. 14-690,

2015 WL 731905 (Feb. 23, 2015).

      Even assuming arguendo that the district court should have accepted Gill’s

Rule 60(b) motion, the motion was due to be denied as untimely. To the extent

Gill brought his motion under Rule 60(b)(6), he did not attempt to file it within a

reasonable time. To the extent Gill’s motion proceeded under Rule 60(b)(4), the




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record demonstrates that Gill knowingly and without sufficient explanation sat on

his rights.

       Gill, despite knowing of the judgment, failed to file a Rule 60(b)(4) motion

for many years. Even if, as Gill claims, his attorney did not receive notice when

the dismissal order was entered in June 2004, both Gill and his attorney were on

notice of the dismissal order by September 2004 at the latest, when Gill’s attorney

sought unsuccessfully to enforce the settlement agreement. See Link v. Wabash R.

R. Co., 370 U.S. 626, 634, 82 S. Ct. 1386, 1390 (1962) (explaining that a party “is

considered to have notice of all facts, notice of which can be charged upon the

attorney”) (quotation marks omitted). Yet, Gill waited almost ten years, until May

2014, to try set the judgment aside on Rule 60(b)(4) grounds.3 Gill’s only

explanation for his delay is his extended hospitalization beginning in 2010, which

does not explain why Gill sat on his rights between 2004 and 2010, a period of six

years. Under the circumstances, we readily conclude that Gill’s 2014 Rule 60(b)

motion is untimely.

       Finally, even if we ignore Gill’s delays, his 2014 motion was due to be

denied because Gill had not shown either “exceptional circumstances” under Rule

60(b)(6), or that the district court, in entering the dismissal order, had “acted in a

       3
           Because Gill’s first Rule 60(b) motion in 2012 is not in the record, it is unclear whether
that motion argued that the judgment was void under Rule 60(b)(4) for lack of notice. But, even
if it did, Gill waited almost eight years before raising the argument as a basis for setting aside the
judgment. He also failed to appeal the district court’s 2012 refusal to file his motion.
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manner inconsistent with due process of law” under Rule 60(b)(4). Based on the

record before us, Gill did not carry his burden to show he is entitled to relief under

either Rule 60(b)(4) or Rule 60(b)(6).

      AFFIRMED.




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