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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12106
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-20150-JAL
ROY R. LUSTIG,
Plaintiff-Appellee,
versus
BARBARA STONE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 7, 2019)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Barbara Stone, represented by counsel on appeal, challenges the district
court’s dismissal of her pro se motion to vacate, filed pursuant to Fed. R. Civ. P.
60(b), as untimely.
We generally review denials of Rule 60(b) motions for an abuse of
discretion but review de novo motions to set aside a judgment for voidness under
Rule 60(b)(4). Stansell v. Revolutionary Armed Forces of Colom., 771 F.3d 713,
736 (11th Cir. 2014). Pro se pleadings are held to a less strict standard than
counseled pleadings and are liberally construed. Campbell v. Air Jam. Ltd., 760
F.3d 1165, 1168 (11th Cir. 2014).
Issues not briefed on appeal are deemed abandoned. Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008). An appellant abandons an issue on appeal by
failing to adequately brief it, such as by making only passing references to the
issue or failing to provide supporting arguments and authority for it. Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
An appeal of a ruling on a Rule 60(b) motion is narrow in scope and
addresses only the denial or grant of relief and does not raise issues in the
underlying judgment. Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d
1332, 1338 (11th Cir. 1999). Rule 60(b) may not be used to challenge mistakes of
law that could have been raised on direct appeal. Id.
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A judgment can be set aside for voidness where the court lacked jurisdiction
or where the movant was denied due process by depriving a party of notice or an
opportunity to be heard. Stansell, 771 F.3d at 736-37. A judgment is not void
simply because it was or may have been erroneous. Id. at 737. Due process
entitles a party whose rights are to be affected to notice and an opportunity to be
heard, but does not require that the party actually receive notice before they are
deprived of a property interest. Jones v. Flowers, 547 U.S. 220, 226 (2006). Due
process is satisfied if notice is reasonably calculated to apprise an interested party
of the pendency of the action and afford them an opportunity to present their
objections. Id. Rule 60(b) motions must be filed within a “reasonable time,”
which means within one year after the entry of judgment or order for motions
under subsections (1), (2), and (3). Fed. R. Civ. P. 60(c).
Here, Stone, represented by counsel on appeal, has failed to adequately brief
the timeliness issue and, thus abandoned it by making only a passing argument that
her motion could be filed at any time. In any event, the district court did not err in
denying her Rule 60(b)(4) motion as untimely because she did not raise any subject
matter jurisdiction defects, did not offer any explanation for the two-year delay in
filing the motion, and could have raised the due process arguments presented in the
motion on direct appeal. She only objected to the magistrate judge’s presiding
over and making a recommendation on the evidentiary hearing, not the district
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court’s jurisdiction to enter a final judgment. Thus, any error in the magistrate
judge’s presiding over the evidentiary hearing did not render the judgment void
and does not warrant relief under Rule 60(b)(4). See Stansell, 771 F.3d at 737.
Based on these circumstances and the absence of any reason that would justify the
delay, the district court did not err in finding that the two-year delay was
unreasonable.
Moreover, Stone waived her due process arguments by waiting two years
after entry of judgment to raise them. See Stansell, 771 F.3d at 737. In particular,
Stone appealed the district court’s judgment during this time period but failed to
make any due process argument regarding the evidentiary hearing, or about the
magistrate judge’s appointment. See Lustig, 679 F. App’x at 744. While Stone
suggests that the magistrate judge knew she was in jail at the time of the hearing
and failed to arrange for her to attend, the record does not support either that she
was actually in jail at the time of the hearing or that the magistrate judge knew it.
In addition, she did not raise this argument in her objections to the magistrate
judge’s report and recommendation but instead asserted that she had not received
notice of the hearing. Additionally, the record reflects that notice of the
evidentiary hearing was mailed to Stone at the address she provided to the district
court, so her due process claims were due to be denied on the merits.
For the foregoing reasons, the judgment of the district court is
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AFFIRMED.
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