           Case: 18-13866   Date Filed: 05/03/2019   Page: 1 of 6


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13866
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:16-cv-00776-SPC-CM


LOUIS MATTHEW CLEMENTS,

                                                          Plaintiff - Appellant,

                                  versus

3M ELECTRONIC MONITORING,

                                                        Defendant - Appellee.

                      ________________________

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

                              (May 3, 2019)

Before WILLIAM PRYOR, MARTIN, and GRANT, Circuit Judges.

PER CURIAM:
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       Louis Clements, proceeding pro se, appeals the district court’s denial of his

motions for relief from a final judgment under Federal Rule of Civil Procedure

60(b). Clements asked the district court to revisit its earlier determination not to

grant him leave to amend his complaint against 3M Electronic Monitoring (“3M”)

to include an intentional infliction of emotional distress claim. The district court

denied Clements’s Rule 60(b) motions as improper substitutions for a timely and

proper appeal. After careful consideration, we affirm.

                                              I.

       Clements filed this products liability suit against 3M1 on October 19, 2016.

He later filed a second amended complaint raising claims of strict and negligent

products liability. He alleged that while he was on state probation, 3M’s

monitoring equipment repeatedly malfunctioned. According to Clements, these

malfunctions caused him to be arrested on several occasions for violating probation

even though he always complied with the terms of his probation. Clements further

alleged that he spent 241 or 216 days in jail as a result of the errors made by the

monitoring equipment. He sought $14,460,000 in compensatory and punitive

damages. He stated that the Kafkaesque ordeal and the constant worry that he

could go to jail at any time based on a mechanical error took a serious toll on his



       1
          3M has since been sold and renamed Attenti Electronic Monitoring. For the sake of
clarity and continuity, we continue to use 3M.
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health. Specifically, he stated that the continuous arrests and wrongful

incarcerations left him with “PTSD [post-traumatic stress disorder], anger, anxiety,

loss of appetite, fear (of retaliation), humiliation, stress, depression, nightmares,

[p]sychological damage, [and] stomach and digestion problems.”

        3M moved to dismiss the complaint for failure to state a claim, arguing that

the claims were time-barred under Florida’s four-year statute of limitations for

products liability actions. 3M also argued that Clements failed to allege that its

monitoring equipment caused a “tangible physical harm to either Clements or to

his property,” which is required under Florida law to allege a products liability

claim. Clements filed a response opposing 3M’s motion to dismiss and requested

leave to amend his complaint to include an intentional infliction of severe

emotional distress (“IIED”) claim, which does not require an allegation of physical

harm.

        The district court granted 3M’s motion to dismiss and dismissed Clements’s

suit with prejudice. At no point did the district court’s order mention or otherwise

engage with Clements’s request for leave to amend his complaint. Shortly

thereafter, Clements filed an “appeal of order to dismiss and motion to recuse,”

which the district court treated as a Rule 60(b) motion for reconsideration.

Although Clements contested the district court’s determination that his claims were

untimely, he did not challenge the district court’s failure to consider his request for


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leave to amend his complaint to include an IIED claim. The district court denied

Clements’s motion for reconsideration and recusal on September 21, 2017. On

appeal, this Court affirmed the district court’s dismissal of Clements’s suit. See

Clements v. Attenti US, Inc., 735 F. App’x 661, 664 (11th Cir. 2018) (per curiam)

(unpublished). Because Clements did not “argue on appeal that the district court

erred in denying him leave to amend his complaint to allege a claim for [IIED],”

this Court did not address “whether dismissal without leave to amend was

appropriate.” Id.

      Clements then filed three Rule 60(b) motions for reconsideration before the

district court. Each argued the district court erred by failing to consider his motion

for leave to amend before dismissing his suit with prejudice. He also argued the

district court should have considered his negligent infliction of emotional distress

claim. The district court denied the motions, ruling that Clements could not use

Rule 60(b) “as a substitute for a timely and proper appeal” after he failed to

challenge on appeal the district court’s failure to consider his motion for leave to

amend. The district court also observed that this was the first time Clements had

ever mentioned a “negligent infliction of emotional distress” claim. Clements

timely appealed.




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                                          II.

      “[W]e review a district court’s denial of a Rule 60(b)(6) motion for abuse of

discretion.” Aldana v. Del Monte Fresh Produce N.A., Inc., 741 F.3d 1349, 1355

(11th Cir. 2014). It is clear the district court should have addressed Clements’s

request for leave to amend his complaint during the motion to dismiss stage of

litigation. See Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir.

1999) (“Unless there is a substantial reason to deny leave to amend, the discretion

of the district court is not broad enough to permit denial.” (quotation marks

omitted and alteration adopted)). However, it is equally clear the district court did

not abuse its discretion in denying Clements’s instant Rule 60(b) motions.

      Rule 60(b) permits district courts to “relieve a party . . . from a final

judgment, order, or proceeding” on the basis of, among other things, a “mistake,

inadvertence, surprise, or excusable neglect.” However, “the law is clear that Rule

60(b) may not be used to challenge mistakes of law which could have been raised

on direct appeal.” Am. Bankers Ins. Co. of Fla. V. Nw. Nat. Ins. Co., 198 F.3d

1332, 1338 (11th Cir. 1999). Clements had the opportunity to challenge the

district court’s failure to address his motion for leave to amend both in his initial

motion for reconsideration and during his first appeal to this Court. He did not.

      Neither does Rule 60(b)(6) offer a path forward for Clements here. This

catch-all provision justifies setting aside a final judgment only when “the


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circumstances are sufficiently extraordinary to warrant relief.” Aldana, 741 F.3d at

1355 (quotation marks omitted). We recognize Clement’s frustration as a pro se

plaintiff as well as his claim that his lack of legal knowledge caused him to miss

the district court’s mistake. However, inattention or inexperience by a pro se

plaintiff ordinarily does not constitute an extraordinary circumstance that justifies

Rule 60(b)(6) relief. See Clarke v. Health & Human Serv., 180 F. App’x 840, 844

(11th Cir. 2006) (per curiam) (unpublished); see also Greenawalt v. Stewart, 105

F.3d 1268, 1273 (9th Cir. 1997) (per curiam), abrogation on other grounds

recognized by Jackson v. Roe, 425 F.3d 654, 658–61 (9th Cir. 2005) (holding that

neither a pro se plaintiff’s “inattention [n]or inexperience . . . constitutes a[n]

‘extraordinary circumstance’ that justifies Rule 60(b)(6) relief”).

      To the extent Clement argues the district court should have granted his Rule

60(b) motion to reconsider his negligent infliction of emotional distress claim, that

argument is without merit. Clement never raised a negligent infliction of

emotional distress claim in his complaint—only a negligent products liability

claim. The district court did not abuse its discretion in denying a Rule 60(b)(6)

motion to address a claim Clement could have made but never did.

      AFFIRMED.




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