            Case: 12-15146   Date Filed: 04/29/2013   Page: 1 of 15


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-15146
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:10-cv-01354-RLV



BRIAN JAMES ALBERT,

                                                             Plaintiff-Appellant,

                                   versus

AMERIS BANK, etc., et al.,

                                                                      Defendants,

FEDERAL DEPOSIT INSURANCE CORPORATION -
CORPORATE,
BRYAN BELL,

                                                          Defendants-Appellees.


                        ________________________

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

                               (April 29, 2013)
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Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

       Brian James Albert appeals pro se from the district court’s denial of his

fourth Federal Rule of Civil Procedure 60(b) motion to reopen his lawsuit against

the Federal Deposit Insurance Corporation (“FDIC”), after having dismissed the

lawsuit pursuant to Rule 41(a)(1). After consideration of the record and the

parties’ briefs, we affirm.


                                    I. BACKGROUND

       Albert’s fourth Rule 60(b) motion sought to reopen claims that were either

settled or dismissed. Thus, we review in detail the procedural history of this case.

A.     Initial Pleadings

       On September 9, 2010, proceeding pro se, Albert filed an amended

complaint (the “complaint”) against the following defendants in connection with

his employment termination: (1) Ameris Bank, which had purchased Albert’s

employer, the failed American United Bank (“AUB”); (2) Bryan Bell, the Chief

Executive Officer of AUB; and (3) the FDIC. 1 Albert sued the FDIC in both its

corporate capacity and its capacity as receiver for AUB. 2 The complaint alleged


       1
         The amended complaint also listed Dale Johnson as a defendant, but Johnson has not
participated in the litigation and is not a party to this appeal.
       2
        The FDIC in its corporate capacity is an entity distinct from the FDIC in its receivership
capacity. See FDIC v. Harrison, 735 F.2d 408, 412 (11th Cir. 1984) (“FDIC facilitates its
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that Albert had been employed as a compliance officer at AUB. During his

employment with AUB, Albert discovered that AUB had engaged in financial

wrongdoing. He reported this conduct to the FDIC, leading to an investigation of

AUB. Allegedly, the FDIC improperly leaked Albert’s identity as the

whistleblower to AUB. As a result of the leak, Bell terminated Albert after AUB’s

takeover by defendant Ameris Bank. Based on these facts, Albert’s complaint

asserted a federal claim against all defendants for whistleblower retaliation under

12 U.S.C. § 1831j, as well as state law claims for slander, libel, and intentional

infliction of emotional distress.

       On September 30, 2010, before any responsive pleadings were filed in the

case, the defendant FDIC moved to dismiss the complaint on various grounds,

including lack of subject matter jurisdiction. The FDIC filed the motion to dismiss

both in its corporate and receivership capacities, but the motion was signed by

attorney Robert Waddell, Jr., whose signature line identified him as an “Attorney[]

for Federal Deposit Insurance Corporation, as Receiver of [AUB].” (emphasis

added).



purpose by serving in two distinct capacities: as an insurer of deposits of member banks and as a
receiver for insured banks that have failed.”); see also Trigo v. FDIC, 847 F.2d 1499, 1501 (11th
Cir. 1988) (“[T]he FDIC then split itself into two entities: the FDIC as receiver and the FDIC in
its corporate capacity . . . .”). When the FDIC is appointed as a receiver for a failed institution,
such as AUB, “it steps into the shoes of the failed institution and takes possession of both the
assets and the liabilities.” F.D.I.C. v. N. Savannah Props., LLC, 686 F.3d 1254, 1259 (11th Cir.
2012) (internal quotation marks omitted).
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      In all other filings relevant to this appeal, Waddell’s signature line identified

him as an attorney for the FDIC in its receivership capacity.

B.    First Rule 41(a)(1) Dismissal

      On October 14, 2010, Albert and the defendant FDIC filed a “Stipulation of

Dismissal” under Federal Rule of Civil Procedure 41(a), dismissing Albert’s state

law claims against the FDIC in its corporate and receivership capacities, and all

claims against the FDIC in its corporate capacity. Specifically, the stipulation

stated: “Plaintiff, Brian James Albert, pro se, and Federal Deposit Insurance

Corporation (‘FDIC’) as Receiver of [AUB] pursuant to [Rule 41(a)] hereby

stipulate to the dismissal” of the state law claims asserted by Albert in his amended

complaint against the FDIC in its corporate and receivership capacities. The

stipulation also provided that “no claims” remained “against FDIC in its corporate

capacity, which has not yet entered an appearance in this matter,” but that Albert’s

12 U.S.C. § 1831j retaliation claim could proceed against the FDIC in its

receivership capacity. Albert and Waddell signed the stipulation.

      On November 29, 2010, based on the stipulation, the district court entered a

consent order dismissing the FDIC in its corporate capacity “as a party to the suit,”

but allowing Albert’s § 1831j retaliation claim to proceed against the FDIC in its

receivership capacity. The consent order specifically stated: “Based on the

plaintiff’s stipulation of dismissal dated October 14, 2010, there are no claims


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remaining against [FDIC] in its corporate capacity. [FDIC] in its corporate

capacity is therefore DISMISSED from the suit.” The consent order was signed by

both Albert and attorney Waddell. Neither the consent order nor the October 14

stipulation specified whether the claims against the FDIC were dismissed with or

without prejudice.

       Shortly after the issuance of the consent order, the FDIC as receiver

answered Albert’s complaint as to his § 1831j retaliation claim (the only claim

remaining against the FDIC in its receivership capacity). The FDIC in its

corporate capacity, having been dismissed from the lawsuit, did not file an answer.

In the following months, Albert continued litigating his claims against the

defendants FDIC in its receivership capacity, Ameris Bank, and Bell. On May 24,

2011, the district court granted summary judgment to Ameris Bank on all of

Albert’s claims.

       On June 7, 2011, Albert filed a “Motion to Add” the FDIC in its corporate

capacity and AUB as defendants to the lawsuit.3 The district court denied that

motion, and Albert never appealed from the denial.

C.     Second Rule 41(a) Dismissal




       3
         Albert’s motion referred generally to “FDIC,” but he presumably sought to add the
FDIC in its corporate capacity specifically, given that the FDIC as receiver was already a party
to the lawsuit.
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      Sometime in late July or early August 2011, Albert and the FDIC as receiver

reached a settlement agreement, and Albert executed a document titled “Release

and Covenant Not to Sue.” According to this release document, Albert agreed to

release the FDIC in both its corporate and receivership capacities, as well as

Ameris Bank and AUB, from any claims related to his lawsuit arising “from the

beginning of time to and including the date of this Agreement.” In consideration

for the release, the FDIC as receiver agreed to “allow . . . Albert’s claim [against

AUB] in the amount of [$12,000],” and stated that it had “issued to him a Notice of

Partial Allowance of Claim in that amount, the receipt and sufficiency of which

[Albert] acknowledges.” The release was signed by Albert and notarized, but was

not signed by any other parties.

      On August 3, 2011, Albert, together with the FDIC in both capacities, filed a

“Stipulated Notice of Dismissal” pursuant to Rule 41(a)(1)(A)(ii). This stipulation

did not mention the settlement agreement, but simply provided that Albert’s claims

against the FDIC in both its corporate and receivership capacities, “whether

asserted in his Complaint or his Amended Complaint[,] are hereby dismissed with

prejudice.” The stipulation noted that the other defendants in this case, Ameris

Bank and Bell, consented to the dismissal. The notice was signed by Albert and

attorney Waddell, as well as by attorneys for the consenting parties, Ameris Bank




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and Bell. As of this date, given the dismissals, the FDIC in its corporate capacity

understandably had not filed an answer or a motion for summary judgment.

       In addition to the above stipulation, Albert filed a motion to dismiss

defendant Bell from the lawsuit, with prejudice. On August 30, 2011, the district

court granted Albert’s motion and dismissed with prejudice all claims against Bell.

D.     Albert’s First Rule 60(b) Motion to Reopen

       On December 22, 2011, Albert filed his first motion to reopen the case

(“first Rule 60(b) motion”).4 He alleged that (1) the FDIC as receiver failed to

honor the settlement agreement leading to the dismissal of his claims; 5 (2) he did

not understand the settlement agreement, given his pro se status; (3) attorney

Waddell misrepresented the meaning of the settlement agreement; and (4) Waddell

and attorneys for Bell provided false evidence in discovery, intimidated a witness,

and engaged in other misconduct throughout the course of litigation. In addition to

this first Rule 60(b) motion to reopen, Albert filed a motion to amend his

complaint.


       4
         Although Albert’s first motion to reopen did not reference Rule 60(b), it sought Rule
60(b) relief in substance, and, therefore, we construe it as a Rule 60(b) motion. See Rice v. Ford
Motor Co., 88 F.3d 914, 918 (11th Cir. 1996) (construing a defendant’s post-judgment motion as
a Rule 60(b) motion, even though the motion “[did] not cite Rule 60(b) or recite any of the
specific grounds listed in the rule as a basis for relief,” because the motion sought relief available
under Rule 60(b) and would have been untimely otherwise).
       5
         Albert’s accusation of breach apparently stemmed from his belief that the FDIC agreed
to give him a check for $12,000, whereas the FDIC asserted that it merely agreed to allow Albert
a “claim” for $12,000, meaning that he would be paid only if assets remained after payments to
priority creditors.
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      On January 9, 2012, before the district court ruled on Albert’s first Rule

60(b) motion, an Assistant U.S. Attorney (“AUSA”) filed a notice of appearance,

asking to be “listed as counsel of record for Federal Deposit Insurance

Corporation.” The AUSA then filed a response, on behalf of the FDIC in its

corporate capacity, to Albert’s motions to reopen and amend the complaint. The

FDIC as receiver had filed a separate response to Albert’s first Rule 60(b) motion.

      On February 1, 2012, the district court denied Albert’s first Rule 60(b)

motion to reopen, and also denied his motion to file an amended complaint. The

district court explained that Albert had failed to provide any factual or legal

grounds to support reopening his case, and had previously dismissed with

prejudice his claims against the FDIC in both capacities and Bell.

E.    Albert’s Second Rule 60(b) Motion

      On April 19, 2012, after the time had expired to appeal the denial of both his

first Rule 60(b) motion and his motion to amend the complaint, Albert filed a

second motion to reopen (“second Rule 60(b) motion”) “based on fraud,

misrepresentation, misconduct and new evidence.”

      The district court denied Albert’s second Rule 60(b) on May 7, 2012, stating

that Albert again failed to raise any legal or factual basis for reopening his case.

F.    Albert’s Third Rule 60(b) Motion to Reopen




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      On June 4, 2012, Albert filed a “Motion to Reconsider” the denial of his

Rule 60(b) motion, although he did not specify which Rule 60(b) motion. He

argued that new evidence, consisting of minutes from a 2009 AUB board meeting,

demonstrated that the FDIC in its corporate capacity was the proper defendant, not

the FDIC as receiver. Albert explained that he did not discover this evidence

previously because it “was buried within the over eight thousand documents that

were provided to [him] and was not discovered . . . in time to be brought to the

court[’]s attention while the case was open.” Albert also stated that he prematurely

released the FDIC in its corporate capacity from the lawsuit because of his

mistaken belief that attorney Waddell represented it.

       The district court construed Albert’s motion to reconsider as a Rule 60(b)

motion (“third Rule 60(b) motion”) and denied it on July 18, 2012. The district

court reasoned that Albert had settled all of his claims with the FDIC in both

capacities, and had “voluntarily dismissed all claims against the FDIC with

prejudice based on [the] settlement agreement.” The district court also concluded

that none of the allegedly new evidence proffered by Albert justified relief under

Rule 60(b). In a footnote, the district court stated that, if Albert sought “to enforce

a supposed breached settlement agreement, [he] should file an appropriate motion

to do so.”

G.    Albert’s Fourth Rule 60(b) Motion


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      Albert did not file any motions to enforce his settlement agreement with the

FDIC. Instead, on August 14, 2012, Albert filed a fourth and final motion to

reopen his case under Rule 60(b) (“fourth Rule 60(b) motion”). Albert argued that

his case should be reopened because (1) new evidence showed that the FDIC in its

corporate capacity, not in its receivership capacity, was the proper defendant in this

case, and (2) Albert mistakenly believed that the FDIC as receiver also represented

the FDIC in its corporate capacity, and this caused him not to file a motion for a

default judgment against the FDIC in its corporate capacity. The alleged new

evidence (which had been presented in Albert’s third Rule 60(b) motion) consisted

of minutes from the August 2009 AUB board meeting. Albert asked the district

court to reopen the case so that he could move for a default judgment against the

FDIC in its corporate capacity, and for summary judgment against Bell.

      On September 6, 2012, the district court denied Albert’s fourth Rule 60(b)

motion. The district court stated that, in light of his settlement agreement with the

FDIC, Albert’s request to reopen was “frivolous.” The district court further noted

that Albert’s confusion as to who represented which FDIC entity was irrelevant

based on his signed release of the FDIC in its corporate capacity.

      On October 1, 2012, Albert filed a notice of appeal, specifying that he was

appealing “the order of [the district court] entered September 6, 2012,” which

denied his fourth Rule 60(b) motion.


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              II.    STANDARD OF REVIEW AND RULE 60(b)

       We review a district court’s order on a Rule 60(b) motion for abuse of

discretion. Willard v. Fairfield S. Co., Inc., 472 F.3d 817, 821 (11th Cir. 2006).

An appeal from a denial of a Rule 60(b) motion “is narrow in scope, addressing

only the propriety of the denial or grant of relief and does not raise issues in the

underlying judgment for review.” Maradiaga v. United States, 679 F.3d 1286,

1291 (11th Cir. 2012) (internal quotation marks omitted). To obtain relief under

Rule 60(b), the “losing party must do more than show that a grant of the [Rule

60(b)] motion might have been warranted; he must demonstrate a justification for

relief so compelling that the district court was required to grant the motion.” Id.

(internal quotation marks and alterations omitted).

       Rule 60(b) names six circumstances in which a party may receive relief from

“a final judgment, order, or proceeding,” including the following: “(1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that,

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

new trial . . . ; (3) fraud . . . , misrepresentation, or misconduct by an opposing

party; (4) the judgment is void . . . ; or (6) any other reason that justifies relief.”

Fed. R. Civ. P. 60(b)(1)-(4), (6). A movant seeking relief under Rule 60(b)(6)

must show “that the circumstances are sufficiently extraordinary to warrant relief.”

Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006).


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                                     III.   DISCUSSION

A.     Breach of Settlement Agreement

       On appeal, Albert argues that the district court should have reopened his

case because the FDIC breached the settlement agreement by failing to pay him the

agreed-upon sum. Albert’s argument fails.

       First, Albert waived the breach-of-settlement issue in the district court

because he failed to raise this issue in his final Rule 60(b) motion (or even his third

Rule 60(b) motion, for that matter).6 See Maradiaga, 679 F.3d at 1293 (stating that

“issues not raised in the district court in the first instance are forfeited,” and

“district courts cannot concoct or resurrect arguments neither made nor advanced

by the parties”); see also Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239,

1250 (11th Cir. 2012) (“[B]eing pro se does not, by itself, excuse a failure to raise

an argument below.”).

       Second, in denying his third Rule 60(b) motion, the district court expressly

stated that, if Albert sought to enforce the settlement agreement, he should file a

motion to that effect. Yet Albert did not file any such motion and did not allege

any breach in his fourth and final Rule 60(b) motion.

       6
         We review only the denial of Albert’s fourth and final Rule 60(b) motion. See
Maradiaga, 679 F.3d at 1291 (stating that an appeal from a denial of a Rule 60(b) motion “is
narrow in scope, addressing only the propriety of the denial or grant of relief and does not raise
issues in the underlying judgment for review” (emphasis added) (internal quotation marks
omitted)).


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      Third, although we may review waived or forfeited arguments in “special

circumstances,” no such circumstances exist here. See Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004) (describing five situations in

which this Court will hear a newly raised claim).

B.    Waddell’s Authority to Act for FDIC in its Corporate Capacity

      Albert’s brief on appeal, liberally construed, asserts that the Rule 41(a)

dismissals and the consent order were void because Waddell lacked the authority

to act on behalf of the FDIC in its corporate capacity. This argument fails too.

Waddell’s authority, or alleged lack thereof, to act on behalf of the FDIC in its

corporate capacity had no effect on Albert’s voluntary dismissal of his claims

under Rule 41(a)(1).

      Rule 41(a)(1)(A) provides, in pertinent part, that a plaintiff “may dismiss an

action without a court order by filing: (i) a notice of dismissal before the opposing

party serves either an answer or a motion for summary judgment; or (ii) a

stipulation of dismissal signed by all parties who have appeared.” Fed. R. Civ. P.

41(a)(1)(A). “Ordinarily, a Rule 41(a)(1) voluntary dismissal is effective

immediately and requires no action by the district court.” Univ. of S. Ala. v. Am.

Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999).

      Albert dismissed all of his claims against the FDIC in its corporate capacity

on October 14, 2010, via a “Stipulation of Dismissal” under Rule 41(a)(1)(A)(ii).


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This first stipulation clearly provided that “no claims . . . remain pending against

FDIC in its corporate capacity.” The fact that the FDIC had not yet appeared in the

litigation in its corporate capacity did not prevent Albert from dismissing all of his

claims against it.

       To the extent the October 14 stipulation was in any way ambiguous (which

it was not), the district court cleared up any ambiguity in its November 29, 2010

consent order, stating that “there are no claims remaining against [FDIC] in its

corporate capacity,” and that the FDIC “in its corporate capacity is therefore

DISMISSED from the suit.”

      We recognize that Albert’s first dismissal of the FDIC in its corporate

capacity was without prejudice, given that neither the October 14 stipulation nor

the consent order specified otherwise. See Fed. R. Civ. P. 41(a)(1)(B) (“Unless the

notice or stipulation states otherwise, the dismissal is without prejudice.”). But

Albert never refiled his lawsuit against the FDIC in its corporate capacity. Instead,

on June 7, 2011, Albert moved the district court to add or reinstate the FDIC in its

corporate capacity as a defendant. The district court denied Albert’s motion, and

Albert never appealed that denial.

      Given these circumstances, the FDIC in its corporate capacity was no longer

a party to the suit at the time Albert settled his remaining claims against the FDIC

and signed the second Rule 41(a)(1) stipulation of dismissal on August 3, 2011.


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Thus, the second stipulation accomplished little with regard to the FDIC in its

corporate capacity except to specify that the dismissal was with prejudice. And

attorney Waddell’s alleged lack of authority to represent the FDIC in its corporate

capacity at the time of the second stipulation was of no consequence.

       In light of the foregoing, the district court did not abuse its discretion in

denying Albert’s fourth Rule 60(b) motion, and we affirm. 7

       AFFIRMED.




       7
        Defendant Bell has filed a response brief in this appeal. As described above, Albert
voluntarily moved to dismiss Bell from the lawsuit, and the district court granted that motion on
August 30, 2011. In his brief on appeal, Albert mentions Bell’s name fleetingly, but makes no
arguments as to why the district court should have vacated Bell’s dismissal order under Rule
60(b). Thus, Albert has abandoned any issues with regard to Bell. See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008) (“[I]ssues not briefed on appeal by a pro se litigant are deemed
abandoned.”).
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