          Case: 18-12348   Date Filed: 07/19/2019   Page: 1 of 18


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-12348
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:17-cv-02294-RWS



CHRISTOPHER M. HUNT, SR.,

                                                           Plaintiff-Appellant,

                                  versus

NATIONSTAR MORTGAGE, LLC,
DEUTCHE BANK NATIONAL TRUST COMPANIES,
ALBERTELLI LAW,
CORPORATION SERVICE COMPANY,

                                                        Defendants-Appellees.

                      ________________________

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

                             (July 19, 2019)

Before WILLLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Christopher Hunt, Sr., proceeding pro se, appeals the district court’s

dismissal without prejudice of his complaint against Nationstar Mortgage, LLC,

(“Nationstar”), Deutsche Bank National Trust Companies (“Deutsche Bank”)

(collectively with Nationstar, “the Mortgagees”), “Albertelli Law” (“Albertelli”),

and Corporation Service Company (“CSC”) (all collectively, “the defendants”), for

failing to serve the defendants and the subsequent denial of his motions for

reconsideration. 1

       For context, Hunt initiated two proceedings 2 in state court, both of which

were removed to federal court. The instant case, Hunt II, was initiated while the

first appeal from Hunt I was still pending.

       On appeal, Hunt argues that the district court erred in dismissing his

complaint for lack of service because the defendants had failed to maintain

registered agents in Georgia, so he was entitled to serve them through the Georgia

Secretary of State. He also argues that the district court should have granted

post-judgment relief under: (1) Rule 60(b)(2), because there was newly discovered

evidence in the form of filings in Hunt II; (2) Rule 60(b)(3) and 60(d)(3), because

he alleged that the defendants had made misrepresentations to the courts and the




       1
         This case is related to the appeal in Case No. 18-12593-AA.
       2
         For ease of reference, the district court proceedings from the related case (N.D. Ga.
Case No. 1:14-cv-03649-RWS) will be called “Hunt I,” and the district court proceedings from
the instant case (N.D. Ga. Case No. 1:17-cv-02294-RWS) will be called “Hunt II.”


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Georgia Secretary of State; (3) Rule 60(b)(4), because the district court did not

have jurisdiction based on the defendants’ default, the Mortgagees’ failure to obtain

consent from all defendants before removing the case, the untimeliness of the

notice of removal, and the defendants’ failure to maintain registered agents;

(4) Rule 60(b)(5), because success in his appeal from Hunt II will result in vacatur

of the judgment in this case; and (5) Rule 60(b)(6), because it would be unjust, in

light of the new evidence of fraud, to let the judgment stand. The Mortgagees

argue that the instant appeal is untimely. 3

       We first address the issue of timeliness, then whether the district court erred

in dismissing the complaint, and finally whether the district court abused its

discretion in denying post-judgment relief.

                                               I.

       In civil cases, the timely filing of a notice of appeal is a mandatory

prerequisite to the exercise of appellate jurisdiction. Green v. Drug Enf’t Admin.,

606 F.3d 1296, 1300-02 (11th Cir. 2010). Except where the United States is a

party, a notice of appeal in a civil case must be filed within 30 days of entry of the

appealed-from judgment or order. Fed. R. App. P. 4(a)(1)(A). However, the period

for appeal runs anew upon the disposition of certain motions, including motions:


       3
         In his brief, Hunt moves for us to enforce Rule 3.3 of the Georgia Rules of Professional
Responsibility. His motion is DENIED because this Court does not enforce the Georgia Rules of
Professional Responsibility.


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(1) to alter or amend the judgment under Rule 59; (2) for a new trial under Rule 59;

and (3) for relief under Rule 60, if the Rule 60 motion is filed within 28 days of the

entry of judgment. Fed. R. App. P. 4(a)(4)(A). Additionally, a motion for

reconsideration filed within 28 days after the entry of judgment is within the scope

of Rule 59(e). Livernois v. Med. Disposables, Inc., 837 F.2d 1018, 1020-21 (11th

Cir. 1988).

      Here, Hunt filed his first motion for reconsideration within 28 days of the

entry of the order dismissing his complaint, meaning that the time for filing the

notice of appeal was tolled. The window then ran anew after the district court

disposed of that order, and Hunt filed the notice of appeal within 30 days of the

entry of that order. Accordingly, the appeal is timely.

                                         II.

      We review for abuse of discretion a district court’s sua sponte dismissal

without prejudice of a plaintiff’s complaint for failure to timely serve a summons

and complaint under Fed. R. Civ. P. 4(m). Rance v. Rocksolid Granit USA, Inc.,

583 F.3d 1284, 1286 (11th Cir. 2009). Additionally, we review for abuse of

discretion a district court’s decision whether to grant an extension of time under

Fed. R. Civ. P. 4(m). Horenkamp v. Van Winkle & Co., Inc., 402 F.3d 1129,

1132-33 (11th Cir. 2005).




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      “[B]efore a court may exercise personal jurisdiction over a defendant, there

must be more than notice to the defendant . . . . [T]here must be authorization of

service of summons on the defendant.” Omni Capital Intern., Ltd. v. Rudolf Wolff

& Co., Ltd., 484 U.S. 97, 104 (1987). An individual or entity “is not obligated to

engage in litigation unless [officially] notified of the action, and brought under a

court’s authority, by formal process.” Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 347 (1999). Even where a defendant has actual

notice of the filing of a suit, service of process is ineffective where it does not

comply with the rules of service. Prewitt Enters., Inc. v. Org. of Petroleum

Exporting Countries, 353 F.3d 916, 924-25 (11th Cir. 2003).

      Under the Federal Rules of Civil Procedure, a plaintiff must serve process on

a corporation by delivering the summons and complaint to an officer or authorized

agent or by complying with any means allowed under state law.

Fed. R. Civ. P. 4(e)(1), (h)(1). Sending copies of the summons and complaint to

defendants by certified mail may be done in addition to delivering the summons

and complaint to an officer, a managing or general agent, or any other agent

authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(h)(1)(B).

      Under Georgia’s Civil Practice Act, service of process must be made on a

corporation by personally serving “the president or other officer of such



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corporation or foreign corporation, managing agent thereof, or a registered agent

thereof.” O.C.G.A. § 9-11-4(e)(1)(A). Georgia law does not authorize a party to

serve a corporation directly by certified or registered mail. Abe Eng’g, Inc. v.

Travelers Indem. Co., 436 S.E.2d 754, 755 (Ga. Ct. App. 1993). However, “[i]f a

corporation has no registered agent or the agent cannot with reasonable diligence

be served, the corporation may be served by registered or certified

mail . . . addressed to the secretary of the corporation at its principal office.”

O.C.G.A. § 14-2-504(b).

      If service on the listed agents cannot be had, the Georgia Secretary of State

is deemed an agent of the corporation for purposes of service of process. O.C.G.A.

§ 9-11-4(e)(1)(A). To perfect service on the Secretary of State, the plaintiff must

deliver a copy of the process to the Secretary of State or other agent designated by

the Secretary of State “along with a copy of the affidavit to be submitted to the

court pursuant to [the Civil Practice Act].” Id. The plaintiff must also:

      certify in writing to the Secretary of State that he or she has forwarded
      by registered mail or statutory overnight delivery such process,
      service, or demand to the last registered office or registered agent
      listed on the records of the Secretary of State, that service cannot be
      effected at such office, and that it therefore appears that such
      corporation or foreign corporation has failed either to maintain a
      registered office or to appoint a registered agent in [Georgia]. Further,
      if it appears from such certification that there is a last known address
      of a known officer of such corporation or foreign corporation outside
      [of Georgia], the plaintiff shall, in addition to and after such service
      upon the Secretary of State, mail or cause to be mailed to the known
      officer at the address by registered or certified mail or statutory

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      overnight delivery a copy of the summons and a copy of the
      complaint.

Id.

      Service on the Secretary of State is proper only after a plaintiff has

attempted to serve the persons listed in the statute and “for any reason” the attempt

was unsuccessful. Stone Exch. Inc. v. Surface Tech. Corp. of Ga., 605 S.E.2d 404,

405 (Ga. Ct. App. 2004). “Although substituted service may be appropriate when a

corporation fails to comply with the registered agent requirements,” such service is

not sufficient “when the plaintiff has actual knowledge of the corporation’s current

correct address and the location of corporate officers who may be properly served

under OCGA § 9-11-4(e)(1).” Id. at 406.

      If a defendant is not served within 90 days of the filing of the complaint, the

court must dismiss the action against that defendant without prejudice or order that

service be made. Fed. R. Civ. P. 4(m). “But if the plaintiff shows good cause for

the failure, the court must extend the time for service for an appropriate period.”

Id. “Good cause exists when some outside factor, such as reliance on faulty

advice, rather than inadvertence or negligence, prevented service.” Rance,

583 F.3d at 1286. Even absent good cause, the district court must still consider

whether other circumstances warrant an extension of time, such as if the refiled

action would be barred by the statute of limitations, if the defendant was evading




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service, or if the defendant was concealing a defect in the attempted service.

Horenkamp, 402 F.3d at 1132-33.

      Under Georgia law, a corporation must maintain in the state: (1) a registered

office, which may be the same as any of its places of business; and (2) a registered

agent. O.C.G.A. § 14-2-501. A registered agent may be (a) a resident person; (b) a

domestic corporation or company; or (c) a foreign corporation or company.

Id. § 14-2-501(2)(A)-(C).

      Here, there was no evidence in the record that Hunt attempted to serve

Deutsche Bank at all. As to Nationstar, Albertelli, and CSC, Hunt’s attempts to

send the summons and complaint by certified mail were insufficient under federal

law. Although Hunt argues that Nationstar and CSC could not be served because

their registered agents were corporations, Georgia law provides that a corporation

may use a foreign corporation as its registered agent for service of process.

Although he contends that service on CSC would be improper because its

employees were like receptionists, those employees were hired and authorized to

accept service of process. Because Nationstar and CSC had registered agents,

Hunt was not entitled to serve them through the Secretary of State. Hunt was also

not entitled to serve Albertelli through the Secretary of State because he did not

attempt to serve it in this action. Although he attempted to serve Albertelli in

Hunt I, that attempt was three years before the filing of the complaint in Hunt II



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and was for a separate lawsuit. The certificates from the Secretary of State’s office

also do not prove that service was proper—they only state that the office received

copies of documents. Finally, the district court considered whether there was good

cause or other circumstances warranting an extension of time and found none.

Accordingly, it did not abuse its discretion in dismissing the complaint for lack of

service.

                                         III.

      We review the denial of a Rule 60(b) motion for an abuse of discretion.

Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir.

1999). “[T]o overturn the district court’s denial of [a Rule 60(b) motion], it is not

enough that a grant of the motion[] might have been permissible or warranted;

rather, the decision to deny the motion[] must have been sufficiently unwarranted

as to amount to an abuse of discretion.” Griffin v. Swim-Tech Corp., 722 F.2d 677,

680 (11th Cir. 1984). Similarly, we review the denial of a motion under Rule 59

for abuse of discretion. Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006).

      Generally, an appeal of a Rule 60(b) motion is limited to the denial of that

motion and does not bring up the underlying judgment for review. Am. Bankers,

198 F.3d at 1338. Because of this limitation, Rule 60(b) may not be used to

challenge mistakes of law that could have been raised on direct appeal. Id. “A




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party may not use Rule 60 as a substitute for a timely and proper appeal.” Parks v.

U.S. Life & Credit Corp., 677 F.2d 838, 840 (11th Cir. 1982) (per curiam).

      “The only grounds for granting a Rule 59 motion are newly-discovered

evidence or manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343

(11th Cir 2007) (per curiam) (brackets omitted)). “[W]here a party attempts to

introduce previously unsubmitted evidence on a motion to reconsider, the court

should not grant the motion to reconsider, the court should not grant the motion

absent some showing that the evidence was not available during the pendency of

the motion.” Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir 1997)

(per curiam).

      Rule 60(b)(2) allows a court to grant relief from a final judgment, order, or

proceeding where the movant proffers newly discovered evidence that, with

reasonable diligence, could not have been discovered in time to move for a new

trial under Rule 59(b). Fed. R. Civ. P. 60(b)(2). “A motion for a new trial under

Rule 60(b)(2) is an extraordinary motion and the requirements of the rule must be

strictly met.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir.

2000) (quotation marks omitted). To warrant relief under Rule 60(b)(2):

      (1) the evidence must be newly discovered since the trial; (2) due
      diligence on the part of the movant to discover the new evidence must
      be shown; (3) the evidence must not be merely cumulative or




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      impeaching; (4) the evidence must be material; and (5) the evidence
      must be such that a new trial would probably produce a new result.

Waddell v. Hendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003).

      Rule 60(b)(3) allows a court to grant relief from a judgment for fraud,

misrepresentation, or misconduct by an opposing party. Fed. R. Civ. P. 60(b)(3).

“To prevail on a 60(b)(3) motion, the movant must prove by clear and convincing

evidence that an adverse party has obtained the verdict through fraud,

misrepresentation, or other misconduct.” Cox Nuclear Pharmacy, Inc. v. CTI, Inc.,

478 F.3d 1303, 1314 (11th Cir. 2007) (quotation marks and brackets omitted).

“Additionally, the moving party must show that the conduct prevented the losing

party from fully and fairly presenting his case or defense.” Id. (quotation marks

and brackets omitted).

      Federal Rule of Civil Procedure 60(d), formerly the savings clause of

Rule 60(b), preserves the court’s power to entertain an independent equitable

action to set aside a judgment, notwithstanding the specific grounds set forth in

Rule 60(b) and their attendant time limitations. See Fed. R. Civ. P. 60(d); Travelers

Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985) (per curiam) (discussing

the fraud-on-the-court action when it was the Rule 60(b) savings clause). In

particular, Rule 60(d)(3) notes the court’s power to “set aside a judgment for fraud

on the court” in limited circumstances. See Fed. R. Civ. P. 60(d)(3).




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      Relief for fraud on the court under Rule 60(d)(3) is a narrow doctrine and

constitutes only that species of fraud that defiles, or attempts to defile, the court

itself, “or is a fraud perpetrated by officers of the court so that the judicial

machinery cannot perform in the usual manner its impartial task of adjudging

cases.” See Travelers, 761 F.2d at 1551 (quotation marks omitted). Neither perjury

nor fabricated evidence constitutes fraud upon the court for purposes of this rule,

as both can and should be exposed at trial. Id. at 1552. Less egregious

misconduct, such as nondisclosure to the court of facts allegedly pertinent to the

matter before it, will not ordinarily rise to the level of fraud on the court. Rozier v.

Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978). Where relief from a

judgment is sought under this rule, the fraud must be established by clear and

convincing evidence. Booker v. Dugger, 825 F.2d 281, 283 (11th Cir. 1987).

      Rule 60(b)(4) provides that a 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 this rule “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).

      Rule 60(b)(5) justifies relief if “the judgment has been satisfied, released, or

discharged; it is based on an earlier judgment that has been reversed or vacated; or



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applying it prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5). “The

section of [R]ule 60(b)(5) which provides relief when judgments are satisfied

applies when damages are paid before trial or a tortfeasor or obligor has paid the

judgment debt.” Gibbs, 738 F.2d at 1155. A judgment of dismissal is not a

“prospective effect” under Rule 60(b)(5). Id. at 1155-56.

      Rule 60(b)(6) allows a party to seek relief from a final judgment or order on

“any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). In order to be

afforded relief under Rule 60(b)(6), the movant must show “that the circumstances

are sufficiently extraordinary to warrant relief.” Cano v. Baker, 435 F.3d 1337,

1342 (11th Cir. 2006) (per curiam) (quotation marks omitted). Relief under

Rule 60(b)(6) is inappropriate where the case falls into one of the other categories

listed in subsections (1)-(5) of Rule 60(b). United States v. Real Prop. &

Residence Located at Route 1, Box 111, Firetower Rd., Semmes, Mobile Cty., Ala.,

920 F.2d 788, 791 (11th Cir. 1991) (“Firetower Rd.”).

      A defendant may remove a case from state court to federal court if the

federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a). “The

district courts shall have original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens of

different States . . . .” 28 U.S.C. § 1332(a)(1). When a case is removed to federal

court based on diversity jurisdiction, it must be remanded to state court if there is



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not complete diversity between the parties. See Henderson v. Washington Nat. Ins.

Co., 454 F.3d 1278, 1281 (11th Cir. 2006).

      For a natural person, citizenship, not residence, is the key fact that must be

alleged in the complaint to establish diversity. Taylor v. Appleton, 30 F.3d 1365,

1367 (11th Cir. 1994). A corporation is a citizen of its state of incorporation as

well as the state in which it has its principal place of business. See id. For

purposes of diversity jurisdiction, a limited liability company is “a citizen of any

state of which a member of the company is a citizen.” Rolling Greens MHP, L.P. v.

Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (per curiam).

A national association is a citizen of the state designated in its articles of

association as its main office. Wachovia Bank v. Schmidt, 546 U.S. 303, 318

(2006). “When a plaintiff seeks injunctive or declaratory relief, the amount in

controversy is the monetary value of the object the litigation from the plaintiff’s

perspective.” Cohen v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th Cir. 2000).

“[T]he burden is on the party who sought removal to demonstrate that federal

jurisdiction exists.” Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th

Cir. 2005) (quotation marks omitted).

      “When a plaintiff names a non-diverse defendant solely in order to defeat

federal diversity jurisdiction, the district court must ignore the presence of the

non-diverse defendant and deny any motion to remand the matter back to state



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court.” Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (per

curiam) (quotation marks and alteration omitted). Fraudulent joinder can be

established under two circumstances: (1) when there is no possibility that the

plaintiff can establish a cause of action against the non-diverse defendant; or

(2) the plaintiff fraudulently pleaded jurisdictional facts specifically to bring the

action in state court and defeat diversity jurisdiction in federal court. Id. The

removing party must make such a showing by clear and convincing evidence.

Henderson, 454 F.3d at 1281. “To determine whether the case should be

remanded, the district court must evaluate the factual allegations in the light most

favorable to the plaintiff and must resolve any uncertainties about state substantive

law in favor of the plaintiff.” Stillwell, 663 F.3d at 1333 (quotation marks

omitted). “If there is even a possibility that a state court would find that the

complaint states a cause of action against any one of the resident defendants, the

federal court must find that the joinder was proper and remand the case to the state

court.” Id. (quotation marks omitted).

      In determining whether a possibility exists that the plaintiff could state a

claim against the resident defendant, we look “to the pleading standards applicable

in state court, not the plausibility pleading standards prevailing in federal court.”

Id. at 1334. Under Georgia law, fair notice of the nature of the claim is all that is




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required, and the elements of most claims can be pled in general terms. Bush v.

Bank of N.Y. Mellon, 720 S.E.2d 370, 374 (Ga. Ct. App. 2011).

      Under Georgia law, the four elements for any tort action are duty, breach of

that duty, causation, and damages. McKenna Long & Aldridge, LLP v. Keller,

598 S.E.2d 892, 894 (Ga. Ct. App. 2004). In an action for negligence against an

attorney, the element of duty requires that a lawyer-client relationship existed

between the defendant and plaintiff. See id. at 894–95 (holding that the alleged

failure of a law firm to investigate adequately its client’s allegations before sending

a demand letter to an adverse party did not give rise to a negligence action because

the firm owed no legal duty to a non-client).

      To remove an action, “all defendants who have been properly joined and

served must join in or consent to the removal of the action.” Id. § 1446(b)(2)(A).

To remove an action, the defendant must file a notice of removal within 30 days of

the receipt of the initial pleading. Id. § 1446(b)(1). In Murphy Bros., the Supreme

Court held that the 30-day period for removal of the action does not start until

service of the summons on the defendants and receipt of the complaint by the

defendants either after or at the time of service of the summons. 526 U.S. at

347-48.

      Where a plaintiff in federal court in a diversity case would be barred from

bringing an action in state court, the federal court is likewise barred from hearing



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the case. Woods v. Interstate Realty Co., 337 U.S. 535, 538 (1949). Under Georgia

law, “[a] foreign corporation may not transact business in [Georgia] until it obtains

a certificate of authority from the Secretary of State.” O.C.G.A. § 14-2-1501(a).

“A foreign corporation transacting business in [Georgia] without a certificate of

authority may not maintain a proceeding in any court in th[e] state until it obtains a

certificate of authority.” O.C.G.A. § 14-2-1502(a). However, the failure to obtain

a certificate of authority does not impair the validity of a corporation’s actions or

prevent it from defending any proceeding. O.C.G.A. § 14-2-1502(d).

      Here, the district court did not abuse its discretion in denying Hunt’s

post-appeal motions. First, Hunt was not entitled to relief under Rule 59(e) for an

error of fact or law because, as discussed above, the district court correctly

dismissed the complaint for lack of service. He was not entitled to relief under that

rule or Rule 60(b)(2) because he did not proffer newly discovered evidence. He

was not entitled to relief under Rule 60(b)(2) because (1) the Mortgagees’

statement that they were not validly served was correct; (2) the use of foreign

corporations as registered agents is permitted under Georgia law, so the defendants

did not perjure themselves on the application; and (3) Albertelli’s alleged

misrepresentation that it maintained a registered agent did not prevent Hunt from

litigating his case because, had he attempted to serve Albertelli in this case and

failed, he could have perfected service through the Secretary of State. He was not



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entitled to relief under Rule 60(b)(4) because: (1) there was no default judgment

against any of the defendants; (2) Albertelli was fraudulently joined because Hunt

alleged no cognizable cause of action against it; (3) the other defendants were

diverse from Hunt and the value of the equitable relief met the

amount-in-controversy requirement, so there was diversity jurisdiction; (4) none of

the defendants were served, so Hunt’s arguments regarding unanimity and the

timeliness of the notice of removal fail; and (5) his arguments that the court lacked

jurisdiction to hear the Mortgagees’ arguments due to their alleged improper

registration is belied by the plain language of the statute. Hunt was not entitled to

relief under Rule 60(b)(5) because no prior judgment was reversed or vacated,

there were no money damages, and the dismissal of the complaint does not

constitute a “prospective effect” for purposes of the rule. Finally, he was not

entitled to relief under Rule 60(b)(6) because claims of fraud or newly discovered

evidence are cognizable under other subsections of Rule 60(b). Because there

were no grounds on which Hunt was entitled to relief, the district court did not

abuse its discretion.

      AFFIRMED.




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