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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11261
Non-Argument Calendar
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D.C. Docket No. 0:16-cv-61722-WPD
ERIC FERRIER,
Plaintiff - Appellant,
versus
JAMES V. ATRIA,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(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, 88 F.3d 948, 950 (11th Cir. 1996)
(default judgment); Thomas v. Farmville Mfg. Co., Inc., 705 F.2d 1307, 1307 (11th
Cir. 1983) (leave to amend). We review de novo the district court’s application of
res judicata. Griswold v. Cty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir.
2010). We review the denial of a Rule 59(e) motion for an abuse of discretion.
Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). Finally, we construe pro se
filings liberally. Lorisme v. I.N.S., 129 F.3d 1441, 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.” Compania, 88 F.3d at 950. However, “some
general guidelines are commonly applied.” Id. For example, 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.” Id.
Here, the 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. Id. § 48.161(1). 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.” Compania, 88 F.3d
at 951-52.
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., 244 F.3d 1289, 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. Id.
Ferrier argues 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 Corp., 244 F.3d at 1296-97. 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, 510 F.3d 1307, 1310 (11th Cir.
2007). A district court need not allow amendment, however, where it would be
futile. Id.
The district 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.” Id. The district 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., 626 F.3d 1327,
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.” Id. (internal quotation 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, 510 U.S. 540, 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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