      Case: 16-11215    Date Filed: 01/04/2017   Page: 1 of 8


                                                     [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT

                       _________________

                          No. 16-11215
                       _________________

              D. C. Docket No. 2:12-cv-14462-JEM

TONI FOUDY,
SHAUN FOUDY,

                                                 Plaintiffs-Appellants,


                              versus

SAINT LUCIE COUNTY SHERIFF’S OFFICE,
DAVID ABBOTT, et al.,

                                                 Defendants-Appellees.

                       _________________
          Appeal from the United States District Court
                 for the Southern District of Florida
                      ________________
                        (January 4, 2017)

Before JORDAN, ROSENBAUM, and DUBINA, Circuit Judges.

PER CURIAM:
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       Toni Foudy and Shaun Foudy (the “Foudys”), appeal the district court’s

order denying their motion for relief from judgment pursuant to FED. R. CIV. P.

60(b)(1) and (b)(6), its order dismissing their case for failure to prosecute, and its

order striking their third amended complaint. The Foudys have filed numerous

actions in the district court alleging that various governmental entities engaged in

concerted, related, and pervasive breaches of their personal information in

violation of the Driver’s Privacy Protection Act (“DPPA”). In this appeal, the

Foudys assert that they were entitled to relief from the district court’s prior

judgment of dismissal without prejudice for lack of prosecution because they were

in the process of obtaining substitute counsel to pursue their actions. As such, they

contend that they were entitled to relief pursuant to excusable neglect under Rule

60(b)(1), or alternatively, for any reason that justifies relief under (b)(6). 1

       Upon review of the record and the parties’ briefs, we affirm the district

court’s order. 2



       1
          In their brief, the Foudys challenge the district court’s order severing their actions.
However, they did not include this specific order in their notice of appeal. Accordingly, we do
not review this order. See Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir.
1987) (“The general rule in this circuit is that an appellate court has jurisdiction to review only
those judgments, orders or portions thereof which are specified in an appellant’s notice of
appeal.”). See also Hofmann v. De Marchena Kaluche & Asociados, 642 F.3d 995, 998 (11th
Cir. 2011) (“A severed claim under Rule 21 proceeds as a discrete suit and results in its own
final judgment from which an appeal may be taken.”).
       2
         Because we affirm the district court’s Rule 60(b) order, the Foudys’ request that we
assign the case to a different judge is moot and without merit.
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                                  I. BACKGROUND

      The Foudys filed an initial lawsuit against the St. Lucie County Sheriff’s

Office (“SLCSO”), the Indian River County Sheriff’s Office (“IRCSO”), the

Florida Department of Law Enforcement and its Commissioner, the Department of

Highway Safety and Motor Vehicles and its Executive Director, Sheriff Ken

Mascara, Sheriff Deryl Loar, seventy-eight law enforcement officers of SLCSO,

twenty-two law enforcement officers of IRCSO, Entity Does, and John and Jane

Does, alleging causes of action under 42 U.S.C. § 1983, the DPPA, the Fourth

Amendment, the Fourteenth Amendment, Florida’s Constitution, and common law

invasion of privacy. Soon thereafter, a number of defendants filed motions to

dismiss, and the Foudys filed their first amended complaint. In January 2014, the

Foudys sought leave to amend their first amended complaint and to file a second

amended complaint under FED. R. CIV. P. 15. They sought to amend their

complaint to add allegations demonstrating ongoing harm to them since the last

amended complaint, to clarify claims against supervisory defendants in their

individual capacities, to remove one defendant, and to add twelve additional entity

defendants: Brevard County, Martin County, Miami-Dade County, City of Fort

Pierce, City of Port St. Lucie, City of Sewall, City of West Palm Beach, City of

Indian River Shores, City of Fellesmere, and City of Vero Beach, as well as their

employee agents who had accessed the Foudys’ personal data. The causes of

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action were limited to the DPPA, section 1983, and common law invasion of

privacy. The district court granted their request to file a second amended

complaint.

      Various defendants revised their motions to dismiss. On July 31, 2014, the

district court sua sponte issued an order dismissing the Foudys’ claims without

prejudice, severing the Foudys’ claims against the different defendants, and

requiring the Foudys to initiate separate suits. Pursuant to the severance order, the

Foudys had two weeks to file separate actions against any defendant or group of

defendants dismissed without prejudice. The order further clarified that any newly

filed actions would be considered a continuation of the original action with regard

to the statute of limitations. In August 2014, the district court entered an order

striking the Foudys’ third amended complaint because the Foudys failed to comply

with the district court’s prior order requiring a motion before joining any additional

parties to their action against the SLCSO. In this order, the district court

specifically referenced its severance order in which it stated that the Foudys were

not precluded from filing a motion to join other parties from this action, not

previously terminated, to the action against the SLCSO, if and only if, the conduct

of those parties constituted the same transaction as that of the SLCSO defendants.

The district court noted that the Foudys, in disregard of the district court’s prior

order, filed a third amended complaint against not only the SLCSO but also against

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seventy-eight individual defendants as well as Jane and John Does. Hence, the

district court struck the Foudys’ third amended complaint.

      The Foudys filed a motion for leave to amend their second amended

complaint to join additional defendants, particularly seeking to join the SLCSO,

Saint Lucie County Sheriff Mascara, seventy-eight Saint Lucie law enforcement

officers, and John and Jane Doe Saint Lucie Supervisors. The motion attached a

copy of the proposed third amended complaint as an exhibit. The district court

granted the motion to amend in a paperless order on January 13, 2015, requiring

the Foudys to re-file their third amended complaint by January 15, 2015. The

district court also issued an order allowing the Foudys to serve their third amended

complaint and proceed against all of the Saint Lucie County defendants and setting

a trial date and pretrial schedule. Soon thereafter, on January 21, 2015, the

individual defendants moved to dismiss without prejudice the Foudys’ claims for

failure to prosecute. Defendants David Abbott and John Brady, employees of the

SLCSO, joined in the motion to dismiss. Two days later, the Foudys’ new

substitute counsel filed a notice of appearance. At the same time, the new counsel

filed a motion for extension of time to allow filing of the third amended complaint.

       On January 22, 2015, the district court granted the defendants’ motions to

dismiss for failure to prosecute and closed the Foudys’ case. The district court also

denied as moot the Foudys’ motion for an extension of time. In July 2015, the

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Foudys moved the district court to reconsider and to reopen the case under Rule

60. On February 17, 2016, the district court denied the requested relief under Rule

60. The Foudys filed a timely notice of appeal, referencing the district court’s

order granting the motion to dismiss for failure to prosecute, the order striking the

Foudys’ third amended complaint, and the Rule 60(b) order.

                                     II. DISCUSSION

      Our review of a district court’s order denying relief pursuant to Rule 60(b) is

limited to whether the district court abused its discretion in denying the motion,

and it shall not extend to the validity of the underlying judgment. See e.g., Rice v.

Ford Motor Co., 88 F.3d 914, 918–19 (11th Cir. 1996). Hence, because an appeal

from the denial of a Rule 60(b) motion does not revive the underlying judgment,

Jackson v. Seaboard Coast Line R. R. Co., 678 F.2d 992, 1021 (11th Cir. 1982),

we will not review whether the district court abused its discretion in dismissing the

Foudys’ action for lack of prosecution because that is the underlying judgment the

Foudys are seeking to alter. Moreover, we will not review the district court’s order

striking the Foudys’ third amended complaint because it is not a final appealable

judgment. See e.g., McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1338

(11th Cir. 2007) (stating that an order is final and appealable when it “ends the

litigation on the merits and leaves nothing more for the court to do but execute the

judgment”) (quotation omitted).

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      In order for the Foudys to demonstrate that the district court abused its

discretion in denying their Rule 60(b) motion for relief from judgment, they “must

do more than show that a grant of [the Rule 60(b)] motion might have been

warranted[; they] must demonstrate a justification for relief so compelling that the

district court was required to grant the motion.” Rice, 88 F.3d at 919 (citation

omitted). They cannot meet this high burden.

      The Foudys claim excusable neglect prevented them from following the

district court’s order to refile timely the third amendment complaint. They assert

that their former counsel, who was transitioning out of representation for them due

to her pending move out of the state, inadvertently did not read the paperless order

entry that allowed them to re-file their third amended complaint. Because they had

only two weeks to re-file, the Foudys contend that it was not sufficient time to

secure another lawyer to re-file the third amended complaint.

      Excusable neglect is an equitable determination that requires an examination

into whether the moving party had a good reason for not responding timely and

whether the opposing party would be prejudiced. In re Worldwide Web Sys. Inc.,

328 F.3d 1291, 1297 (11th Cir. 2003). In Walter v. Blue Cross & Blue Shield

United, this court listed several relevant factors to consider when evaluating

excusable neglect, such as (1) the danger of prejudice, (2) the length of delay and

its potential impact on the proceedings, (3) the reason for the delay, and (4)

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whether the movant acted in good faith. 181 F.3d 1198, 1201 (11th Cir. 1999)

(citation omitted). Applying these factors, it is clear that the district did not abuse

its discretion in denying the relief.

      First, although the district court had dismissed the case for lack of

prosecution, and the Foudys had counsel, they waited over five months to file their

Rule 60(b) motion. They offer no explanation for why they waited to seek relief

from the district court’s dismissal of their case. Second, although they fault their

prior attorney’s negligence for the failure to re-file their third amended complaint,

the Foudys had two other attorneys who represented them during the time in which

their prior attorney was transitioning from representation and preparing to move

out of state. Neither of these attorneys re-filed the third amended complaint, and

there is nothing in the record to explain their failure to prosecute the case. Third,

the record shows that the prior attorney never withdrew from representation of the

Foudys and remained counsel of record until she was suspended from the practice

of law by the Florida Supreme Court in July 2016. These factors belie the Foudys’

claim of inexcusable neglect. Accordingly, we conclude from the record that the

district court did not abuse its discretion in denying the Foudys Rule 60 relief, and

we affirm its order.

      AFFIRMED.




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