         Case: 18-12528   Date Filed: 07/24/2019     Page: 1 of 5


                                                         [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 18-12528
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:17-cv-00200-CMS



ISAAC COOK,

                                              Plaintiff - Appellee,

                                versus

FURNITURE MARKETING DIRECT, LLC,

                                          Defendant,

JOSEPH SCOTT HOLLIDAY,

                                              Defendant - Appellant.

                     ________________________

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

                            (July 24, 2019)
              Case: 18-12528       Date Filed: 07/24/2019   Page: 2 of 5


Before MARTIN, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:

      Joseph Scott Holliday appeals the district court’s order and judgment

assessing Isaac Cook’s attorney’s fees against him. In the district court, Holliday

was represented by counsel at the outset of the case, but his counsel withdrew

while the litigation remained pending. According to Holliday, he received no

notice of Cook’s motion for attorney’s fees or any of the items filed on the district

court’s docket after his counsel withdrew and before the court assessed attorney’s

fees against him. Holliday argues that the district court’s attorney’s fees

assessment was erroneous based on this lack of notice. Because Holliday failed to

bring this argument before the district court, however, we are constrained to affirm.

                              I.      BACKGROUND

      We limit our recitation of the facts to the procedural history of this case

because the underlying facts are irrelevant to our disposition of this appeal.

      Isaac Cook brought this action against Furniture Marketing Direct, LLC, and

Holliday, alleging claims for employment discrimination and retaliation under

42 U.S.C. § 1981, as well as a claim for retaliation under the Fair Labor Standards

Act, 29 U.S.C. § 215(a)(3). Both defendants timely answered. Following

discovery, Furniture Marketing Direct and Holliday moved for summary judgment.




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      Before the court decided the summary judgment motion, Cook filed a

suggestion of bankruptcy, notifying the court that Furniture Marketing Direct had

filed a voluntary petition for Chapter 11 bankruptcy and that the action was subject

to an automatic stay only as to Furniture Marketing Direct, pursuant to 11 U.S.C.

§ 362(a). William Ney, up until this point counsel for both defendants, then moved

to withdraw his representation for both defendants. The magistrate judge granted

Ney’s motion to withdraw and ordered Holliday to advise the court as to whether

he intended to obtain replacement counsel or proceed pro se. After hearing

nothing from Holliday, the magistrate judge ordered him to show cause why the

court should not enter a default judgment against him for failing to comply with

her earlier order. Again lacking any response from Holliday, the magistrate judge

denied as moot the motion for summary judgment with respect to Holliday only

and directed the clerk to enter default against him. The magistrate judge then

ordered Cook to apply for a default judgment. After Cook filed an application for

a default judgment, the court granted the application, and the clerk entered a

default judgment against Holliday.

      Following the entry of default judgment, Cook filed a motion for attorney’s

fees. Cook requested attorney’s fees in the amount of $50,393.75. The magistrate

judge entered an order assessing Cook’s attorney’s fees of $50,393.75 against

Holliday. The district court clerk entered a judgment to the same effect. The


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magistrate judge then ordered the case administratively closed for the pendency of

Furniture Marketing Direct’s bankruptcy proceeding.

      This is Holliday’s appeal.

                        II.    STANDARD OF REVIEW

      We review for abuse of discretion a district court’s award of attorney’s fees.

Rath v. Marcoski, 898 F.3d 1306, 1309 (11th Cir. 2018) (internal quotation marks

omitted). “An abuse of discretion occurs if the court fails to apply the proper legal

standard or to follow proper procedures in making the determination, or bases an

award upon findings of fact that are clearly erroneous.” Id. (internal quotation

marks omitted).

                               III.    DISCUSSION

      Holliday argues that the district court violated Federal Rule of Civil

Procedure 77(d)(1) by failing to provide him with notice of Cook’s motion for

attorney’s fees, or of any of the proceedings that occurred after Ney withdrew as

his counsel and before the court entered its judgment assessing attorney’s fees

against him. After Holliday learned of the district court’s attorney’s fees award, he

had the option of moving that court for reconsideration of its assessment on the

same grounds on which he now bases his appeal. Holliday filed no motion for

reconsideration, however. By forgoing presentation to the district court of the

notice issue he now raises on appeal, Holliday has left us with no district court


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determination of that issue to review. Therefore, we cannot say, on the grounds

urged by Holliday, that the district court committed an abuse of discretion. See,

e.g., Smith v. Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th Cir. 2014) (“The

district court cannot abuse its discretion by failing to consider arguments that are

not before it.”). Accordingly, we affirm the district court’s attorney’s fees award.

      We note, though, that nothing in this opinion shall prohibit Holliday from

seeking relief from the district court, pursuant to Federal Rule of Civil Procedure

60(b)(4), for the attorney’s fees award. See Fed. R. Civ. P. 60(b)(4) (“On motion

and just terms, the court may relieve a party or its legal representative from a final

judgment, order, or proceeding [because] . . . the judgment is void . . . .”); see also

Stansell v. Revolutionary Armed Forces of Colom., 771 F.3d 713, 737 (11th Cir.

2014) (“Voidness for purposes of a 60(b)(4) motion contemplates lack of

jurisdiction or defects in due process that deprive a party of notice or an

opportunity to be heard.”); Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210,

1217 (11th Cir. 2009) (“[A] district court’s failure to vacate a void judgment is per

se an abuse of discretion.”); see generally 11 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2862 (3d ed. 2019) (“[T]here is no time

limit on an attack on a judgment as void.”).

      AFFIRMED.




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