Case: 12-15146 Date Filed: 04/29/2013 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15146
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-01354-RLV
BRIAN JAMES ALBERT,
Plaintiff-Appellant,
versus
AMERIS BANK, etc., et al.,
Defendants,
FEDERAL DEPOSIT INSURANCE CORPORATION -
CORPORATE,
BRYAN BELL,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 29, 2013)
Case: 12-15146 Date Filed: 04/29/2013 Page: 2 of 15
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Brian James Albert appeals pro se from the district court’s denial of his
fourth Federal Rule of Civil Procedure 60(b) motion to reopen his lawsuit against
the Federal Deposit Insurance Corporation (“FDIC”), after having dismissed the
lawsuit pursuant to Rule 41(a)(1). After consideration of the record and the
parties’ briefs, we affirm.
I. BACKGROUND
Albert’s fourth Rule 60(b) motion sought to reopen claims that were either
settled or dismissed. Thus, we review in detail the procedural history of this case.
A. Initial Pleadings
On September 9, 2010, proceeding pro se, Albert filed an amended
complaint (the “complaint”) against the following defendants in connection with
his employment termination: (1) Ameris Bank, which had purchased Albert’s
employer, the failed American United Bank (“AUB”); (2) Bryan Bell, the Chief
Executive Officer of AUB; and (3) the FDIC. 1 Albert sued the FDIC in both its
corporate capacity and its capacity as receiver for AUB. 2 The complaint alleged
1
The amended complaint also listed Dale Johnson as a defendant, but Johnson has not
participated in the litigation and is not a party to this appeal.
2
The FDIC in its corporate capacity is an entity distinct from the FDIC in its receivership
capacity. See FDIC v. Harrison, 735 F.2d 408, 412 (11th Cir. 1984) (“FDIC facilitates its
2
Case: 12-15146 Date Filed: 04/29/2013 Page: 3 of 15
that Albert had been employed as a compliance officer at AUB. During his
employment with AUB, Albert discovered that AUB had engaged in financial
wrongdoing. He reported this conduct to the FDIC, leading to an investigation of
AUB. Allegedly, the FDIC improperly leaked Albert’s identity as the
whistleblower to AUB. As a result of the leak, Bell terminated Albert after AUB’s
takeover by defendant Ameris Bank. Based on these facts, Albert’s complaint
asserted a federal claim against all defendants for whistleblower retaliation under
12 U.S.C. § 1831j, as well as state law claims for slander, libel, and intentional
infliction of emotional distress.
On September 30, 2010, before any responsive pleadings were filed in the
case, the defendant FDIC moved to dismiss the complaint on various grounds,
including lack of subject matter jurisdiction. The FDIC filed the motion to dismiss
both in its corporate and receivership capacities, but the motion was signed by
attorney Robert Waddell, Jr., whose signature line identified him as an “Attorney[]
for Federal Deposit Insurance Corporation, as Receiver of [AUB].” (emphasis
added).
purpose by serving in two distinct capacities: as an insurer of deposits of member banks and as a
receiver for insured banks that have failed.”); see also Trigo v. FDIC, 847 F.2d 1499, 1501 (11th
Cir. 1988) (“[T]he FDIC then split itself into two entities: the FDIC as receiver and the FDIC in
its corporate capacity . . . .”). When the FDIC is appointed as a receiver for a failed institution,
such as AUB, “it steps into the shoes of the failed institution and takes possession of both the
assets and the liabilities.” F.D.I.C. v. N. Savannah Props., LLC, 686 F.3d 1254, 1259 (11th Cir.
2012) (internal quotation marks omitted).
3
Case: 12-15146 Date Filed: 04/29/2013 Page: 4 of 15
In all other filings relevant to this appeal, Waddell’s signature line identified
him as an attorney for the FDIC in its receivership capacity.
B. First Rule 41(a)(1) Dismissal
On October 14, 2010, Albert and the defendant FDIC filed a “Stipulation of
Dismissal” under Federal Rule of Civil Procedure 41(a), dismissing Albert’s state
law claims against the FDIC in its corporate and receivership capacities, and all
claims against the FDIC in its corporate capacity. Specifically, the stipulation
stated: “Plaintiff, Brian James Albert, pro se, and Federal Deposit Insurance
Corporation (‘FDIC’) as Receiver of [AUB] pursuant to [Rule 41(a)] hereby
stipulate to the dismissal” of the state law claims asserted by Albert in his amended
complaint against the FDIC in its corporate and receivership capacities. The
stipulation also provided that “no claims” remained “against FDIC in its corporate
capacity, which has not yet entered an appearance in this matter,” but that Albert’s
12 U.S.C. § 1831j retaliation claim could proceed against the FDIC in its
receivership capacity. Albert and Waddell signed the stipulation.
On November 29, 2010, based on the stipulation, the district court entered a
consent order dismissing the FDIC in its corporate capacity “as a party to the suit,”
but allowing Albert’s § 1831j retaliation claim to proceed against the FDIC in its
receivership capacity. The consent order specifically stated: “Based on the
plaintiff’s stipulation of dismissal dated October 14, 2010, there are no claims
4
Case: 12-15146 Date Filed: 04/29/2013 Page: 5 of 15
remaining against [FDIC] in its corporate capacity. [FDIC] in its corporate
capacity is therefore DISMISSED from the suit.” The consent order was signed by
both Albert and attorney Waddell. Neither the consent order nor the October 14
stipulation specified whether the claims against the FDIC were dismissed with or
without prejudice.
Shortly after the issuance of the consent order, the FDIC as receiver
answered Albert’s complaint as to his § 1831j retaliation claim (the only claim
remaining against the FDIC in its receivership capacity). The FDIC in its
corporate capacity, having been dismissed from the lawsuit, did not file an answer.
In the following months, Albert continued litigating his claims against the
defendants FDIC in its receivership capacity, Ameris Bank, and Bell. On May 24,
2011, the district court granted summary judgment to Ameris Bank on all of
Albert’s claims.
On June 7, 2011, Albert filed a “Motion to Add” the FDIC in its corporate
capacity and AUB as defendants to the lawsuit.3 The district court denied that
motion, and Albert never appealed from the denial.
C. Second Rule 41(a) Dismissal
3
Albert’s motion referred generally to “FDIC,” but he presumably sought to add the
FDIC in its corporate capacity specifically, given that the FDIC as receiver was already a party
to the lawsuit.
5
Case: 12-15146 Date Filed: 04/29/2013 Page: 6 of 15
Sometime in late July or early August 2011, Albert and the FDIC as receiver
reached a settlement agreement, and Albert executed a document titled “Release
and Covenant Not to Sue.” According to this release document, Albert agreed to
release the FDIC in both its corporate and receivership capacities, as well as
Ameris Bank and AUB, from any claims related to his lawsuit arising “from the
beginning of time to and including the date of this Agreement.” In consideration
for the release, the FDIC as receiver agreed to “allow . . . Albert’s claim [against
AUB] in the amount of [$12,000],” and stated that it had “issued to him a Notice of
Partial Allowance of Claim in that amount, the receipt and sufficiency of which
[Albert] acknowledges.” The release was signed by Albert and notarized, but was
not signed by any other parties.
On August 3, 2011, Albert, together with the FDIC in both capacities, filed a
“Stipulated Notice of Dismissal” pursuant to Rule 41(a)(1)(A)(ii). This stipulation
did not mention the settlement agreement, but simply provided that Albert’s claims
against the FDIC in both its corporate and receivership capacities, “whether
asserted in his Complaint or his Amended Complaint[,] are hereby dismissed with
prejudice.” The stipulation noted that the other defendants in this case, Ameris
Bank and Bell, consented to the dismissal. The notice was signed by Albert and
attorney Waddell, as well as by attorneys for the consenting parties, Ameris Bank
6
Case: 12-15146 Date Filed: 04/29/2013 Page: 7 of 15
and Bell. As of this date, given the dismissals, the FDIC in its corporate capacity
understandably had not filed an answer or a motion for summary judgment.
In addition to the above stipulation, Albert filed a motion to dismiss
defendant Bell from the lawsuit, with prejudice. On August 30, 2011, the district
court granted Albert’s motion and dismissed with prejudice all claims against Bell.
D. Albert’s First Rule 60(b) Motion to Reopen
On December 22, 2011, Albert filed his first motion to reopen the case
(“first Rule 60(b) motion”).4 He alleged that (1) the FDIC as receiver failed to
honor the settlement agreement leading to the dismissal of his claims; 5 (2) he did
not understand the settlement agreement, given his pro se status; (3) attorney
Waddell misrepresented the meaning of the settlement agreement; and (4) Waddell
and attorneys for Bell provided false evidence in discovery, intimidated a witness,
and engaged in other misconduct throughout the course of litigation. In addition to
this first Rule 60(b) motion to reopen, Albert filed a motion to amend his
complaint.
4
Although Albert’s first motion to reopen did not reference Rule 60(b), it sought Rule
60(b) relief in substance, and, therefore, we construe it as a Rule 60(b) motion. See Rice v. Ford
Motor Co., 88 F.3d 914, 918 (11th Cir. 1996) (construing a defendant’s post-judgment motion as
a Rule 60(b) motion, even though the motion “[did] not cite Rule 60(b) or recite any of the
specific grounds listed in the rule as a basis for relief,” because the motion sought relief available
under Rule 60(b) and would have been untimely otherwise).
5
Albert’s accusation of breach apparently stemmed from his belief that the FDIC agreed
to give him a check for $12,000, whereas the FDIC asserted that it merely agreed to allow Albert
a “claim” for $12,000, meaning that he would be paid only if assets remained after payments to
priority creditors.
7
Case: 12-15146 Date Filed: 04/29/2013 Page: 8 of 15
On January 9, 2012, before the district court ruled on Albert’s first Rule
60(b) motion, an Assistant U.S. Attorney (“AUSA”) filed a notice of appearance,
asking to be “listed as counsel of record for Federal Deposit Insurance
Corporation.” The AUSA then filed a response, on behalf of the FDIC in its
corporate capacity, to Albert’s motions to reopen and amend the complaint. The
FDIC as receiver had filed a separate response to Albert’s first Rule 60(b) motion.
On February 1, 2012, the district court denied Albert’s first Rule 60(b)
motion to reopen, and also denied his motion to file an amended complaint. The
district court explained that Albert had failed to provide any factual or legal
grounds to support reopening his case, and had previously dismissed with
prejudice his claims against the FDIC in both capacities and Bell.
E. Albert’s Second Rule 60(b) Motion
On April 19, 2012, after the time had expired to appeal the denial of both his
first Rule 60(b) motion and his motion to amend the complaint, Albert filed a
second motion to reopen (“second Rule 60(b) motion”) “based on fraud,
misrepresentation, misconduct and new evidence.”
The district court denied Albert’s second Rule 60(b) on May 7, 2012, stating
that Albert again failed to raise any legal or factual basis for reopening his case.
F. Albert’s Third Rule 60(b) Motion to Reopen
8
Case: 12-15146 Date Filed: 04/29/2013 Page: 9 of 15
On June 4, 2012, Albert filed a “Motion to Reconsider” the denial of his
Rule 60(b) motion, although he did not specify which Rule 60(b) motion. He
argued that new evidence, consisting of minutes from a 2009 AUB board meeting,
demonstrated that the FDIC in its corporate capacity was the proper defendant, not
the FDIC as receiver. Albert explained that he did not discover this evidence
previously because it “was buried within the over eight thousand documents that
were provided to [him] and was not discovered . . . in time to be brought to the
court[’]s attention while the case was open.” Albert also stated that he prematurely
released the FDIC in its corporate capacity from the lawsuit because of his
mistaken belief that attorney Waddell represented it.
The district court construed Albert’s motion to reconsider as a Rule 60(b)
motion (“third Rule 60(b) motion”) and denied it on July 18, 2012. The district
court reasoned that Albert had settled all of his claims with the FDIC in both
capacities, and had “voluntarily dismissed all claims against the FDIC with
prejudice based on [the] settlement agreement.” The district court also concluded
that none of the allegedly new evidence proffered by Albert justified relief under
Rule 60(b). In a footnote, the district court stated that, if Albert sought “to enforce
a supposed breached settlement agreement, [he] should file an appropriate motion
to do so.”
G. Albert’s Fourth Rule 60(b) Motion
9
Case: 12-15146 Date Filed: 04/29/2013 Page: 10 of 15
Albert did not file any motions to enforce his settlement agreement with the
FDIC. Instead, on August 14, 2012, Albert filed a fourth and final motion to
reopen his case under Rule 60(b) (“fourth Rule 60(b) motion”). Albert argued that
his case should be reopened because (1) new evidence showed that the FDIC in its
corporate capacity, not in its receivership capacity, was the proper defendant in this
case, and (2) Albert mistakenly believed that the FDIC as receiver also represented
the FDIC in its corporate capacity, and this caused him not to file a motion for a
default judgment against the FDIC in its corporate capacity. The alleged new
evidence (which had been presented in Albert’s third Rule 60(b) motion) consisted
of minutes from the August 2009 AUB board meeting. Albert asked the district
court to reopen the case so that he could move for a default judgment against the
FDIC in its corporate capacity, and for summary judgment against Bell.
On September 6, 2012, the district court denied Albert’s fourth Rule 60(b)
motion. The district court stated that, in light of his settlement agreement with the
FDIC, Albert’s request to reopen was “frivolous.” The district court further noted
that Albert’s confusion as to who represented which FDIC entity was irrelevant
based on his signed release of the FDIC in its corporate capacity.
On October 1, 2012, Albert filed a notice of appeal, specifying that he was
appealing “the order of [the district court] entered September 6, 2012,” which
denied his fourth Rule 60(b) motion.
10
Case: 12-15146 Date Filed: 04/29/2013 Page: 11 of 15
II. STANDARD OF REVIEW AND RULE 60(b)
We review a district court’s order on a Rule 60(b) motion for abuse of
discretion. Willard v. Fairfield S. Co., Inc., 472 F.3d 817, 821 (11th Cir. 2006).
An appeal from a denial of a Rule 60(b) motion “is narrow in scope, addressing
only the propriety of the denial or grant of relief and does not raise issues in the
underlying judgment for review.” Maradiaga v. United States, 679 F.3d 1286,
1291 (11th Cir. 2012) (internal quotation marks omitted). To obtain relief under
Rule 60(b), the “losing party must do more than show that a grant of the [Rule
60(b)] motion might have been warranted; he must demonstrate a justification for
relief so compelling that the district court was required to grant the motion.” Id.
(internal quotation marks and alterations omitted).
Rule 60(b) names six circumstances in which a party may receive relief from
“a final judgment, order, or proceeding,” including the following: “(1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a
new trial . . . ; (3) fraud . . . , misrepresentation, or misconduct by an opposing
party; (4) the judgment is void . . . ; or (6) any other reason that justifies relief.”
Fed. R. Civ. P. 60(b)(1)-(4), (6). A movant seeking relief under Rule 60(b)(6)
must show “that the circumstances are sufficiently extraordinary to warrant relief.”
Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006).
11
Case: 12-15146 Date Filed: 04/29/2013 Page: 12 of 15
III. DISCUSSION
A. Breach of Settlement Agreement
On appeal, Albert argues that the district court should have reopened his
case because the FDIC breached the settlement agreement by failing to pay him the
agreed-upon sum. Albert’s argument fails.
First, Albert waived the breach-of-settlement issue in the district court
because he failed to raise this issue in his final Rule 60(b) motion (or even his third
Rule 60(b) motion, for that matter).6 See Maradiaga, 679 F.3d at 1293 (stating that
“issues not raised in the district court in the first instance are forfeited,” and
“district courts cannot concoct or resurrect arguments neither made nor advanced
by the parties”); see also Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239,
1250 (11th Cir. 2012) (“[B]eing pro se does not, by itself, excuse a failure to raise
an argument below.”).
Second, in denying his third Rule 60(b) motion, the district court expressly
stated that, if Albert sought to enforce the settlement agreement, he should file a
motion to that effect. Yet Albert did not file any such motion and did not allege
any breach in his fourth and final Rule 60(b) motion.
6
We review only the denial of Albert’s fourth and final Rule 60(b) motion. See
Maradiaga, 679 F.3d at 1291 (stating that an appeal from a denial of a Rule 60(b) motion “is
narrow in scope, addressing only the propriety of the denial or grant of relief and does not raise
issues in the underlying judgment for review” (emphasis added) (internal quotation marks
omitted)).
12
Case: 12-15146 Date Filed: 04/29/2013 Page: 13 of 15
Third, although we may review waived or forfeited arguments in “special
circumstances,” no such circumstances exist here. See Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004) (describing five situations in
which this Court will hear a newly raised claim).
B. Waddell’s Authority to Act for FDIC in its Corporate Capacity
Albert’s brief on appeal, liberally construed, asserts that the Rule 41(a)
dismissals and the consent order were void because Waddell lacked the authority
to act on behalf of the FDIC in its corporate capacity. This argument fails too.
Waddell’s authority, or alleged lack thereof, to act on behalf of the FDIC in its
corporate capacity had no effect on Albert’s voluntary dismissal of his claims
under Rule 41(a)(1).
Rule 41(a)(1)(A) provides, in pertinent part, that a plaintiff “may dismiss an
action without a court order by filing: (i) a notice of dismissal before the opposing
party serves either an answer or a motion for summary judgment; or (ii) a
stipulation of dismissal signed by all parties who have appeared.” Fed. R. Civ. P.
41(a)(1)(A). “Ordinarily, a Rule 41(a)(1) voluntary dismissal is effective
immediately and requires no action by the district court.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999).
Albert dismissed all of his claims against the FDIC in its corporate capacity
on October 14, 2010, via a “Stipulation of Dismissal” under Rule 41(a)(1)(A)(ii).
13
Case: 12-15146 Date Filed: 04/29/2013 Page: 14 of 15
This first stipulation clearly provided that “no claims . . . remain pending against
FDIC in its corporate capacity.” The fact that the FDIC had not yet appeared in the
litigation in its corporate capacity did not prevent Albert from dismissing all of his
claims against it.
To the extent the October 14 stipulation was in any way ambiguous (which
it was not), the district court cleared up any ambiguity in its November 29, 2010
consent order, stating that “there are no claims remaining against [FDIC] in its
corporate capacity,” and that the FDIC “in its corporate capacity is therefore
DISMISSED from the suit.”
We recognize that Albert’s first dismissal of the FDIC in its corporate
capacity was without prejudice, given that neither the October 14 stipulation nor
the consent order specified otherwise. See Fed. R. Civ. P. 41(a)(1)(B) (“Unless the
notice or stipulation states otherwise, the dismissal is without prejudice.”). But
Albert never refiled his lawsuit against the FDIC in its corporate capacity. Instead,
on June 7, 2011, Albert moved the district court to add or reinstate the FDIC in its
corporate capacity as a defendant. The district court denied Albert’s motion, and
Albert never appealed that denial.
Given these circumstances, the FDIC in its corporate capacity was no longer
a party to the suit at the time Albert settled his remaining claims against the FDIC
and signed the second Rule 41(a)(1) stipulation of dismissal on August 3, 2011.
14
Case: 12-15146 Date Filed: 04/29/2013 Page: 15 of 15
Thus, the second stipulation accomplished little with regard to the FDIC in its
corporate capacity except to specify that the dismissal was with prejudice. And
attorney Waddell’s alleged lack of authority to represent the FDIC in its corporate
capacity at the time of the second stipulation was of no consequence.
In light of the foregoing, the district court did not abuse its discretion in
denying Albert’s fourth Rule 60(b) motion, and we affirm. 7
AFFIRMED.
7
Defendant Bell has filed a response brief in this appeal. As described above, Albert
voluntarily moved to dismiss Bell from the lawsuit, and the district court granted that motion on
August 30, 2011. In his brief on appeal, Albert mentions Bell’s name fleetingly, but makes no
arguments as to why the district court should have vacated Bell’s dismissal order under Rule
60(b). Thus, Albert has abandoned any issues with regard to Bell. See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008) (“[I]ssues not briefed on appeal by a pro se litigant are deemed
abandoned.”).
15
Brian James Albert v. Federal Deposit Insurance Corporation-Corporate
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2013-04-29
Citations: 517 F. App'x 900
Copy CitationsCombined Opinion