Filed: Apr. 20, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-14912 ELEVENTH CIRCUIT APRIL 20, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 04-01415-CV-ORL-28-DAB GARY L. MOCK, Plaintiff-Appellee, versus BELL HELICOPTER TEXTRON, INC., Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (April 20, 2010) Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges. PER CURIA
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-14912 ELEVENTH CIRCUIT APRIL 20, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 04-01415-CV-ORL-28-DAB GARY L. MOCK, Plaintiff-Appellee, versus BELL HELICOPTER TEXTRON, INC., Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (April 20, 2010) Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges. PER CURIAM..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14912 ELEVENTH CIRCUIT
APRIL 20, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 04-01415-CV-ORL-28-DAB
GARY L. MOCK,
Plaintiff-Appellee,
versus
BELL HELICOPTER TEXTRON, INC.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 20, 2010)
Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Appellee Gary Mock filed the instant lawsuit against Appellant Bell
Helicopter Textron, Inc. (“Bell”), alleging age discrimination in violation of the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623. On March
23, 2007, a jury found in favor of Mock on his discrimination claim. On
September 24, 2007, the district court entered judgment against Bell in the amount
of $225,809.78 plus interest and attorneys’ fees. On May 29, 2009, this court
affirmed the district court’s judgment.
On June 18, 2009, the Supreme Court of the United States issued its decision
in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349,
174 L. Ed. 2d 119 (2009),
holding that, in ADEA cases, it is not sufficient for the plaintiff to prove that age
was a “motivating factor” in the employer’s decision. On July 6, 2009, Bell filed a
motion for relief from judgment under Rule 60(b), arguing that, because the district
court instructed the jury on the motivating factor test, which the Court in Gross
specifically held to be improper, it was entitled to relief. On August 27, 2009, the
district court denied Bell’s motion. In its order, the district court held that, even if
Gross represented a change in the law rendering the instructions given in this case
erroneous, Bell had not presented “extraordinary circumstances warranting this
extreme remedy.” D.C. Doc. No. 257, at 2-3. Bell appeals from the district court’s
denial of its Rule 60(b) motion.
We review a district court’s denial of a Rule 60(b) motion for abuse of
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discretion. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842
(11th Cir. 2008).
Under Rule 60(b), a district court may vacate a final judgment for, among
other things, “mistake, inadvertence, surprise, or excusable neglect” if the plaintiff
files its motion within one year after the entry of the challenged judgment. Fed. R.
Civ. P. 60(b)(1), (c)(1). Rule 60(b) also permits a district court to vacate a final
judgment for “any other reason that justifies relief” if such a motion is made
“within a reasonable time.” Fed. R. Civ. P. 60(b)(6), (c)(1). Importantly, “the
grounds specified under the first five subsections will not justify relief under
subsection [six].” Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 n.3 (5th Cir.
Unit A Jan. 1981).1
Rule 60(b) “seeks to strike a delicate balance between two countervailing
impulses: the desire to preserve the finality of judgments and the ‘incessant
command of the court’s conscience that justice be done in light of all the facts.’”
Seven Elves, Inc., 635 F.2d at 401 (quoting Bankers Mortgage v. United States,
423 F.2d 73, 77 (5th Cir. 1970)). We have held that “[s]omething more than a
‘mere’ change in the law is necessary . . . to provide the grounds for Rule 60(b)(6)
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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relief.” Booker v. Singletary, 90 F.3d 440, 442 (11th Cir. 1996) (quoting Ritter v.
Smith,
811 F.2d 1398, 1401 (11th Cir. 1987)). In Booker, we held that “[i]n
addition to citing a change in the law, a Rule 60(b)(6) movant must persuade [the
court] that the circumstances are sufficiently extraordinary to warrant relief . . .
Even then, whether to grant the requested relief is . . . a matter for the district
court’s sound discretion.”
Id.
In Ritter v. Smith, we discussed several factors that are relevant to
determining the presence of extraordinary
circumstances. 811 F.2d at 1401-03.
First, we held that a “significant factor” justifying relief in that case was “the fact
that the previous judgment . . . though final, was unexecuted.”
Id. at 1402.
Second, we held that timing is relevant because “[t]he longer the delay the more
intrusive is the effort to upset the finality of the judgment.”
Id. Third, we
considered whether there was a “close relationship between the two cases at issue,”
either because “the intervening Supreme Court decision was rendered expressly to
resolve a conflict between the earlier decision . . . and another case,” or because the
two cases “arose out of the same transaction.”
Id. at 1402-03. Finally, we held
that “considerations of comity” are relevant in cases where our ruling will affect a
state court judgment.
Id. at 1403.
Applying the above factors to the facts in Ritter, we concluded that the
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district court did not abuse its discretion by granting Rule 60(b)(6) relief based on
an intervening change in the law because (1) the judgment at issue was unexecuted,
(2) the state filed a Rule 60(b)(6) motion only three months after the intervening
Supreme Court decision and nine months after the challenged judgment, (3) the
Supreme Court expressly granted certiorari in the intervening case for the purpose
of resolving a dispute between the prior panel opinion in Ritter and another circuit
court opinion, and (4) the final judgment raised considerations of comity because it
set aside a state court judgment. Id. at 1401-03.
Even assuming arguendo that the Supreme Court’s decision in Gross
rendered the instructions given in this case erroneous, we hold that the district
court did not abuse its discretion by finding that Bell failed to demonstrate
extraordinary circumstances to justify post-judgment relief. In particular, the
instant matter did not involve the type of close connection between the two cases
as discussed in Ritter because (1) the Supreme Court did not grant certiorari in
Gross to resolve an express conflict between that case and the current case, and (2)
Gross did not arise out of the same transaction as the current case. Further, unlike
Ritter, the present case did not implicate the interests of comity because it did not
involve a state judgment. Thus, even though some factors weigh in favor of relief,
the district court’s decision in this respect is entitled to deference.
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In addition to its Rule 60(b)(6) argument, Bell argues that it is also entitled
to relief under Rule 60(b)(1). However, because Bell’s motion was made more
than a year after the entry of the judgment in this case, Rule 60(b)(1) relief is not
available. Fed. R. Civ. P. 60(c)(1). Finally, Bell argues that it is also entitled to
relief under Rule 60(b)(5) because, according to Bell, “Mock’s prospective relief in
this case in executing and obtaining fees on a judgment that is premised on invalid
law would be inequitable.” Blue Brief at 8 n.1. First, because Bell mentions its
Rule 60(b)(5) argument in passing in a footnote only and does not elaborate on it in
any further detail in either one of its briefs, we deem this argument waived. See
Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)
(“[T]he law is now well settled in this Circuit that a legal claim or argument that
has not been briefed before the court is deemed abandoned and its merits will not
be addressed. The Federal Rules of Appellate Procedure plainly require that an
appellant’s brief ‘contain, under appropriate headings and in the order indicated . . .
a statement of the issues presented for review.’”). See also Greenbriar, Ltd. v.
Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (deeming issue waived where
party mentioned it in passing in its Statement of the Case without elaborating on it
in its arguments on the merits). Even if its Rule 60(b)(5) argument was not
waived, however, Bell is not entitled to relief under that rule because it has failed
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to show that it would be inequitable to give the challenged judgment prospective
effect.
Accordingly, we affirm the district court’s judgment denying Bell’s Rule
60(b) motion to vacate the judgment.
AFFIRMED.
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