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                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11261
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:16-cv-61722-WPD



ERIC FERRIER,

                                                      Plaintiff - Appellant,

                                  versus



JAMES V. ATRIA,

                                                      Defendant - Appellee.

                       ________________________

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

                             (March 22, 2018)

Before MARCUS, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:
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      Eric Ferrier, a pro se litigant, appeals the dismissal of his complaint alleging

intellectual property infringement and fraud claims against James Atria. Ferrier

argues that the district court erred by setting aside the clerk’s entry of default

judgment, dismissing Ferrier’s complaint as barred by res judicata, and denying

Ferrier’s motion to alter or amend a judgment under Federal Rule of Civil

Procedure 59(e). After careful consideration, we affirm the district court’s

dismissal of Ferrier’s complaint.

                               I.      BACKGROUND

      Ferrier is an independent contractor offering software consulting to

businesses. Ferrier and Atria had a development agreement under which Ferrier

would build software to assist Atria in his construction business. Atria eventually

terminated the agreement. Ferrier thereafter filed a complaint in federal district

court against Atria. According to the complaint, Atria used and distributed

Ferrier’s copyrighted materials and copied Ferrier’s software, in violation of the

Copyright Act, 17 U.S.C. § 101 et seq. Additionally, Atria promoted Ferrier’s

copyrighted software in a manner likely to cause confusion, mistake, and deception

among customers, in violation of the Lanham Act, 15 U.S.C. § 1125 et seq. Atria

also fraudulently transferred software and assets, in violation of 11 U.S.C. § 548.




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      Ferrier attached several exhibits to the complaint, including documents from

an action that he had filed previously against Atria in the Southern District of New

York. He also included a letter from the Florida Department of State

acknowledging that Yvette McGee had accepted a copy of the initial complaint on

behalf of Atria pursuant to Florida Statutes § 48.181, a law permitting a party to

serve the Secretary of State in lieu of the defendant personally.

      After Atria failed to appear, Ferrier filed a motion for entry of default

judgment pursuant to Federal Rule of Civil Procedure 55(b)(1). The district court

directed the clerk to enter default against Atria, ordering Atria to show cause why

Ferrier’s motion for entry of a default judgment should not be granted. The district

court noted in its order that it had not determined whether Ferrier’s complaint

supported the entry of a default judgment against Atria, and the court expressed

concern that Ferrier’s claims may be barred based on adverse rulings in the

Southern District of New York action.

      Atria filed a response to the order to show cause. He requested that the

district court set aside the clerk’s entry of default because Ferrier had failed to

comply with the requirements for substitute service under Florida law, and Atria

was unaware of the action against him until the district court mailed the order to

Atria’s counsel. Atria further argued that Ferrier had made similar claims in the

Southern District of New York that were dismissed, and thus the case was barred


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by res judicata. The district court granted Atria’s motion to set aside the clerk’s

default, determining that Ferrier had not properly perfected service of process on

Atria under Florida law.

      Atria then moved to dismiss Ferrier’s complaint based on res judicata. The

district court granted Atria’s motion, dismissing with prejudice. Ferrier filed a

motion to amend or alter the judgment under Rule 59(e), which the district court

denied.

      Ferrier timely filed a notice of appeal, designating the district court’s orders

setting aside the clerk’s entry of default, dismissing his complaint, and denying his

Rule 59(e) motion. This is Ferrier’s appeal.

                        II.    STANDARDS OF REVIEW

      We review the district court’s grant of a motion to set aside an entry of

default and its denial of leave to amend for an abuse of discretion. Compania

Interamericana v. Compania Dominicana, 

, 950 (11th Cir. 1996)

(default judgment); Thomas v. Farmville Mfg. Co., Inc., 

, 1307 (11th

Cir. 1983) (leave to amend). We review de novo the district court’s application of

res judicata. Griswold v. Cty. of Hillsborough, 

, 1292 (11th Cir.

2010). We review the denial of a Rule 59(e) motion for an abuse of discretion.

Drago v. Jenne, 

, 1305 (11th Cir. 2006). Finally, we construe pro se

filings liberally. Lorisme v. I.N.S., 

, 1444 n.3 (11th Cir. 1997).


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                                   III.   DISCUSSION

A.     The District Court Did Not Abuse Its Discretion by Setting Aside the
       Entry of Default Judgment.

       Federal Rule of Civil Procedure 55(c) provides that a district court for good

cause “may set aside an entry of default.” Good cause is “a liberal [standard] . . .

not susceptible to a precise formula.” 

. However, “some

general guidelines are commonly applied.” 

courts determining

whether to set aside a default “have considered whether the default was culpable or

willful, whether setting it aside would prejudice the adversary, and whether the

defaulting party presents a meritorious defense.” 

district court did not abuse its discretion in setting aside the entry

of default because Atria lacked notice of Ferrier’s lawsuit against him; therefore,

his default was not willful. As the district court determined, Ferrier failed to

comply with Florida law permitting substitute service. 1 Florida Statutes § 48.181

permits plaintiffs to treat the Secretary of State as an agent for service of process in

certain instances. Relevant here, the statute requires the plaintiff to serve a copy of

the summons and complaint on the Secretary of State and provide notice of that

service to the defendant by mailing him a copy of the process via certified or


       1
        The Federal Rules of Civil Procedure allow a defendant to be served pursuant to state
law. Fed. R. Civ. P. 4(e)(l). We therefore consider Ferrier’s compliance with state law.

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registered mail. 

Although Ferrier served the Secretary of State, he

failed to mail notice of his service to Atria via certified or registered mail. As a

result, Atria was unaware of the action against him; he did not “display[] either an

intentional or reckless disregard for the judicial proceedings.” 

.

      Furthermore, the district court noted that Atria may have a meritorious

defense against Ferrier’s claims. In its order directing the clerk to set aside the

default, the district court specifically noted its concerns about the merits of

Ferrier’s claims given that he had filed similar claims previously. And as we

discuss below, the district court was correct that res judicata barred Ferrier from

re-litigating his claims.

      Because the district court properly considered whether Atria’s default was

willful and whether his defense had merit, it did not abuse its discretion in setting

aside the default.

B.    The District Court Correctly Determined that Ferrier’s Complaint Was
      Barred by Res Judicata.

      Ferrier argues that the district court erred in determining that his claim was

barred by res judicata. “Under res judicata, also known as claim preclusion, a

final judgment on the merits bars the parties to a prior action from re-litigating a

cause of action that was or could have been raised in that action.” In re Piper

Aircraft Corp., 

, 1296 (11th Cir. 2001). Claim preclusion bars a
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subsequent action when the following elements are present: (1) the prior decision

was rendered by a court of competent jurisdiction; (2) there was a final judgment

on the merits; (3) both cases involved the same parties; and (4) both cases involved

the same causes of action. 

that claim preclusion does not apply because the order in the

Southern District of New York dismissing his claims determined only that he had

failed to properly serve Atria. An order dismissing a complaint for lack of proper

service, however, constitutes a final judgment on the merits. Federal Rule of Civil

Procedure 41(b) provides that an involuntary dismissal is an adjudication on the

merits unless the dismissal is one for lack of jurisdiction, improper venue, or

failure to join a party under Federal Rule of Civil Procedure 19, or “the dismissal

order states otherwise.” Because the district court in the Southern District of New

York dismissed Ferrier’s complaint with prejudice for lack of proper service, the

order was a final judgment on the merits.

      The other elements of res judicata, which Ferrier does not contest, also are

satisfied. First, the district court in the Southern District of New York was a court

of competent jurisdiction because it had “an existing source of subject-matter

jurisdiction” to adjudicate the action. Lightfoot v. Cendant Mortg. Corp., 137 S.

Ct. 553, 555 (2017). Second, the two cases involved the same parties. Third,

Ferrier’s allegations here arose from the “same nucleus of operative fact” as those


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he made in the Southern District of New York, and thus they are the same claim

for res judicata purposes. Piper Aircraft 

. The district

court correctly determined that res judicata barred Ferrier from bringing his claims

against Atria.

C.     The District Court Did Not Abuse Its Discretion by Denying Ferrier
       Leave to Amend His Complaint.

       Ferrier also argues that the district court erred in failing to grant him leave to

amend his complaint. In general, a pro se litigant must be given an opportunity to

amend his complaint. See Cockrell v. Sparks, 

, 1310 (11th Cir.

2007). A district court need not allow amendment, however, where it would be

futile. 

court did not abuse its discretion by denying Ferrier leave to

amend because doing so would have been futile. As discussed above, Ferrier’s

claims are barred by res judicata, which prevents a party from raising claims that

were raised or could have been raised in a previous action. Therefore, a more

carefully drafted complaint “would still be properly dismissed or be immediately

subject to summary judgment for the defendant.” 

court therefore

did not abuse its discretion in denying Ferrier leave to amend.




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D.     The District Court Did Not Abuse Its Discretion by Denying Ferrier’s
       Motion to Alter or Amend Judgment Under Rule 59(e).

       Finally, Ferrier argues that the district court erred in denying his motion to

alter or amend judgment under Rule 59(e). This Court has held that a Rule 59(e)

motion may be granted only when there has been newly-discovered evidence or a

manifest error of law or fact. Jacobs v. Tempur-Pedic Int’l., Inc., 

,

1344 (11th Cir. 2010). Such a motion may not be used “to relitigate old matters,

raise argument or present evidence that could have been raised prior to the entry of

judgment.” 

marks omitted).

       Ferrier failed to raise in his Rule 59(e) motion any issue that could not have

been raised prior to the district court’s order dismissing the action. In his motion,

Ferrier argued that res judicata did not apply because there had been no final

decision on the merits. He also argued that the court should allow him to add a

new party to the action, which would prevent res judicata from applying. These

arguments could have been made prior to the district court’s final order dismissing

the action, however, and thus Ferrier did not satisfy Rule 59(e)’s requirements.

The district court did not abuse its discretion by denying Ferrier’s Rule 59(e)

motion.2


       2
          Ferrier also argues that the district court was biased against him because it denied many
of his motions. This general argument as to the district court’s impartiality falls well short of
establishing “deep-seated favoritism or antagonism as would make fair judgment impossible.”
Liteky v. United States, 

, 555 (1994). We thus reject Ferrier’s argument that the
district court was biased.
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                              IV.   CONCLUSION

      For these reasons, we affirm the district court’s order granting the motion to

dismiss.

      AFFIRMED.




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