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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10091
Non-Argument Calendar
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D.C. Docket No. 9:16-cv-80538-KAM
WING KEI HO,
Plaintiff - Appellant,
versus
BANK OF AMERICA,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 16, 2018)
Before MARCUS, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Wing Ho, proceeding pro se, appeals the district court’s dismissal of his
second amended complaint and the denial of his Federal Rule of Civil Procedure
59(e) motion to alter or amend judgment. After careful review, we conclude that
the district court failed to determine whether Ho’s motion satisfied Rule 59(e), and
we therefore vacate the district court’s order and remand to the district court.
I.
Ho filed a complaint against Bank of America (“BOA”) alleging that it had
wrongfully foreclosed on his properties. BOA moved to dismiss the complaint.
The district court granted the motion but permitted Ho leave to amend. Ho timely
filed an amended complaint, alleging wrongful foreclosure along with state and
federal statutory claims. BOA moved to dismiss the amended complaint. The
district court granted the motion in part, dismissing Ho’s wrongful foreclosure
claims for lack of subject matter jurisdiction. The district court dismissed the
remaining claims without prejudice, giving Ho until October 4, 2016 to file a
second amended complaint.
On October 11, 2016, after the court’s deadline, Ho filed his second
amended complaint.1 BOA moved to dismiss the complaint for failure to comply
with the district court’s deadline. Ho failed to respond. The district court granted
BOA’s motion based on lack of subject matter jurisdiction because the second
1
The pleading was file stamped on October 11, but was not docketed until October 12. It
makes no difference to our analysis.
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amended complaint was untimely, and Ho had failed to request an extension of
time prior to the deadline or make a motion or a showing of excusable neglect.
Ho moved to alter or amend the judgment under Federal Rule of Civil
Procedure 59(e). In that motion, he explained that his second amended complaint
had been untimely due to a hurricane watch and warning issued on October 4, the
district court’s deadline. Further, Ho argued, the court was closed from October 5
through October 10, which was Columbus Day. Therefore, according to Ho,
October 11 was the first day on which he could file his second amended complaint.
The district court denied Ho’s motion, finding that the hurricane watch “was
issued on the last day of the deadline for the amended pleading” and that the court
“was open for business” on October 4, so Ho “could have and should have acted in
accordance with the Court’s order.” Doc. 33 at 2.2 In any event, the court
determined, it had “lost subject matter jurisdiction” over the matter. Id.
Ho timely filed a notice of appeal, designating the dismissal of his second
amended complaint and the denial of his Rule 59(e) motion.
II.
We review the denial of a Rule 59(e) motion for abuse of discretion. Drago
v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). An abuse of discretion occurs if
the district court fails to apply the proper legal standard or to follow proper
2
Citations to “Doc. #” refer to docket entries in the district court record in this case.
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procedures in making its determination. Mincey v. Head, 206 F.3d 1106, 1137
n.69 (11th Cir. 2000). We construe pro se filings liberally. Lorisme v. I.N.S., 129
F.3d 1441, 1444 n.3 (11th Cir. 1997).
Here, the district court did not consider Ho’s explanation of his late filing
because it incorrectly determined that it had lost jurisdiction over Ho’s action. A
jurisdictional defect is one that “strip[s] the court of its power to act and ma[kes]
its judgment void.” McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir. 2001)
(alterations in original) (quoting Escareno v. Carl Nolte Sohne GmbH & Co., 77
F.3d 407, 412 (11th Cir. 1996)). As the Supreme Court has noted, courts have
often mislabeled timing restrictions as jurisdictional requirements:
Courts, including [the Supreme Court] . . . have more than
occasionally used the term ‘jurisdictional’ to describe emphatic time
prescriptions in rules of court . . . . For example, we have described
Federal Rule of Civil Procedure 6(b), on time enlargement . . . as
‘mandatory and jurisdictional.’
Kontrick v. Ryan, 540 U.S. 443, 454 (2004) (citation omitted). The Court went on
to explain that unlike timing prescriptions, requirements are jurisdictional only if
they “delineat[e] the classes of cases (subject-matter jurisdiction) and the persons
(personal jurisdiction) falling within a court’s adjudicatory authority.” Id. at 455.
Here, the court concluded that it was forced to deny Ho’s motion because it
had “lost subject matter jurisdiction over this matter.” Doc. 33 at 2. Therefore,
according to the district court, the “case [could not] proceed.” Id. But the district
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court could have exercised its discretion to allow Ho’s belated filing. Indeed,
Federal Rule of Civil Procedure 6(b) sets forth specific factors for district courts to
consider when deciding whether to accept a late filing. Thus, the lapsed deadline
did not “strip[] the court of its power to act,” and the missed filing deadline did not
result in a jurisdictional defect. Escareno, 77 F.3d at 412.
Given the district court’s erroneous legal determination that the missed
deadline deprived it of jurisdiction over Ho’s case, the court failed to consider
Ho’s explanation for his late filing. The district court therefore abused its
discretion.
III.
For the foregoing reasons, the district court’s order denying Ho’s Rule 59(e)
motion is vacated and remanded.
VACATED AND REMANDED.
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