USCA11 Case: 22-11954 Document: 25-1 Date Filed: 04/21/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11954
Non-Argument Calendar
____________________
JAMES MCCONICO, JR.,
as one of the Intestated Estate of his Father
JMC Sr.,
Plaintiff-Appellant,
versus
TOP GOLF INTERNATIONAL INC.,
DOLF BERLE,
ERIK ANDERSON,
CALLAWAY GOLF COMPANY,
OLIVER G. BREWER, III, et al.,
USCA11 Case: 22-11954 Document: 25-1 Date Filed: 04/21/2023 Page: 2 of 9
2 Opinion of the Court 22-11954
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:21-cv-01024-LSC
____________________
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
James McConico, proceeding pro se, 1 appeals the district
court’s denial of his post-judgment Federal Rule of Civil Procedure
60(b) motion for relief from the district court’s refusal to vacate a
prescreening order that prevented McConico from filing his civil
complaint alleging Constitutional violations and various property
claims under Alabama law. McConico alleged in his Rule 60(b)
motion that the judgment was void because he had never con-
sented to a magistrate judge presiding over his case and the magis-
trate judge lacked jurisdiction to order his complaint be with-
drawn. On appeal, he argues that his Rule 60(b) motion should
have been granted because he never consented to a magistrate
1 McConico’s motion for appointment of counsel is DENIED because the le-
gal issues in this case are not complex, and McConico has shown himself to be
capable of presenting his arguments. See Kilgo v. Ricks,
983 F.2d 189, 193
(11th Cir. 1993); Fowler v. Jones,
899 F.2d 1088, 1096 (11th Cir. 1990).
USCA11 Case: 22-11954 Document: 25-1 Date Filed: 04/21/2023 Page: 3 of 9
22-11954 Opinion of the Court 3
judge presiding over his case, so the magistrate judge did not have
jurisdiction and the judgment was void.2
When appropriate, we will review the denial of a Fed. R.
Civ. P. 60(b) motion for abuse of discretion. Aldana v. Del Monte
Fresh Produce N.A., Inc.,
741 F.3d 1349, 1355 (11th Cir. 2014).
However, we review de novo a district court’s ruling upon a Rule
60(b)(4) motion to set aside a judgment as void “because the ques-
tion of the validity of a judgment is a legal one.” Burke v. Smith,
252 F.3d 1260, 1263 (11th Cir. 2001) (quotation marks omitted).
Pro se pleadings are generally held to a less stringent standard than
pleadings drafted by attorneys and will be liberally construed.
Campbell v. Air Jam. Ltd.,
760 F.3d 1165, 1168 (11th Cir. 2014).
Under Rule 60(b) the court may relieve a party from a final
judgment for several reasons, including fraud, a void judgment, or
any other reason that merits relief. See Fed. R. Civ. P. 60(b)(3), (4),
and (6). Rule 60(d)(3) provides that “[t]his rule does not limit a
court’s power to . . . set aside a judgment for fraud on the court.”
Fed. R. Civ. P. 60(d)(3). Rule 60(b)(6) motions must demonstrate
that circumstances are sufficiently extraordinary to warrant relief.
Aldana,
741 F.3d at 1355. Moreover, in order to prevail, an appel-
lant must do more than show that a grant of his motion might have
been warranted; he must demonstrate a justification for relief so
compelling that the district court was required to grant relief.
Maradiaga v. United States,
679 F.3d 1286, 1291 (11th Cir. 2012)
2 McConico’s motion to substitute his brief on appeal is GRANTED.
USCA11 Case: 22-11954 Document: 25-1 Date Filed: 04/21/2023 Page: 4 of 9
4 Opinion of the Court 22-11954
(citation and quotation omitted). “A motion for reconsideration
cannot be used to relitigate old matters, raise argument or present
evidence that could have been raised prior to the entry of judg-
ment.” Cummings v. Dep’t of Corr.,
757 F.3d 1228, 1234 (11th Cir.
2014) (quotation marks omitted).
“Generally, a judgment is void under Rule 60(b)(4) if the
court that rendered it lacked jurisdiction of the subject matter, or
of the parties, or if it acted in a manner inconsistent with due pro-
cess of law. Burke, 252 F.3d at 1263 (quotation marks omitted).
The jurisdiction and powers of magistrate judges are set
forth in
28 U.S.C. § 636. Magistrate judges “may be assigned such
additional duties as are not inconsistent with the Constitution and
laws of the United States.”
28 U.S.C. § 636(b)(3). A magistrate
judge can be designated to hear even dispositive pretrial matters, if
the magistrate judge’s actions are submitted, along with proper ob-
jections thereto, for review by a district judge de novo.
28 U.S.C.
§ 636(b)(1)(B).
A review of the course of proceedings in the district court
will facilitate an understanding of our resolution. In July 2021,
McConico filed a civil complaint against Top Golf International
and its two CEOs, Dolf Berle and Erik Anderson; its parent com-
pany, Callaway Golf Company and its CEO, Oliver G. Brewer, III;
West River Group and its CEO, Erik Anderson ; Providence Equity
Partners and its CEO, Jonathan M. Nelson; Dundon Capital Part-
ners, and its CEO Thomas Dundon; Jefferson County Civic Au-
thority; Jefferson County Commission (collectively, “the
USCA11 Case: 22-11954 Document: 25-1 Date Filed: 04/21/2023 Page: 5 of 9
22-11954 Opinion of the Court 5
Defendants”). He alleged that he had bought property located in
Alabama, but the seller later filed for foreclosure on the property.
McConico further alleged that after the foreclosure, the Jefferson
County Civic Authority unlawfully took possession of the property
and sold it to the Defendants. He asserted that the Defendants’
acquisition of the property was unlawful, and his ownership could
not be divested. Additionally, he asserted that the Defendants
failed to exercise reasonable care by failing to conduct a title search
and that the Defendants had no valid defenses. He sought 31 mil-
lion dollars in damages and the invalidation of the foreclosure and
any contracts based on the foreclosure.
The same day he filed his complaint, McConico filed a mo-
tion to vacate a 1997 order that required prescreening of any filings
by McConico (“1997 Prescreening Order”). He argued that the or-
der should not be enforced because it was 24 years old, and enforc-
ing the order would be “laughable” and violations of his First, Sev-
enth, and Fourteenth Amendment rights. McConico contended
that as a paying litigant, his claims should not be subject to a frivol-
ity analysis. He further argued that the Prison Litigation Reform
Act (“PLRA”) warranted vacating the 1997 Prescreening Order and
rendered it moot because he had three strikes under the PLRA, and
therefore, could not bring a lawsuit. Docket Entry #3 is a notice
that the case was assigned to a magistrate judge.
On August 12, 2021, a magistrate judge entered an order to
withdraw McConico’s complaint, refund his filing fee, and close
the case because the 1997 Prescreening Order required that no
USCA11 Case: 22-11954 Document: 25-1 Date Filed: 04/21/2023 Page: 6 of 9
6 Opinion of the Court 22-11954
filing from McConico be accepted without prescreening by a judge
or magistrate judge. Alternatively, the magistrate judge noted that
McConico’s complaint was patently frivolous and without merit,
the court lacked subject matter jurisdiction, and his claims were
barred by relevant statutes of limitation.
On September 8, 2021, the magistrate judge entered a sec-
ond order, which noted that McConico had submitted three sets of
documents that he wished to file. The magistrate judge denied his
request to file the documents so far as the documents sought re-
consideration of the rejection of his lawsuit against the Defendants,
because his requests were patently frivolous and without merit.
However, the magistrate judge concluded that his challenges to the
1997 Prescreening Order should be considered because McConico
had tried to pay the filing fee instead of filing in forma pauperis, and
the length of time since the issuance of the order made it unclear
whether the order was still necessary to protect the court’s docket
from abuse. The magistrate directed the Clerk to file McConico’s
filing related to his objections to the 1997 Prescreening Order and
assign a district judge to the case to review the objections.
McConico’s objections were entered into the record. (Doc.
8). As relevant to challenging the 1997 Prescreening Order, McCo-
nico argued that he never consented to a magistrate judge presid-
ing over his case and the magistrate judge, therefore, did not have
the authority to enforce the order. He objected to the court’s fail-
ure to rule on his motion to vacate the 1997 Prescreening order,
and he argued that his payment of the filing fee negated the 1997
USCA11 Case: 22-11954 Document: 25-1 Date Filed: 04/21/2023 Page: 7 of 9
22-11954 Opinion of the Court 7
Prescreening Order because only the claims of non-paying litigants
are subject to review for frivolity.
The case was reassigned to Judge Coogler. Judge Coogler
reviewed McConico’s objections to the 1997 prescreening order
and overruled them, noting that the order was put in place in 1997
because at the time, McConico had filed over forty frivolous com-
plaints since 1990. Additionally, the day before the magistrate
judge ruled, McConico’s objections, the district court had refused
to vacate the 1997 Prescreening Order in another case pending be-
fore the district court at the time, ruling that McConico continued
to file patently frivolous civil actions that were without merit and
there was no reason to vacate the 1997 Prescreening Order. Thus,
Judge Coogler, in McConico’s case, overruled McConico’s objec-
tions to the 1997 prescreening order, thus approving the magistrate
judge’s recommendation and enforcing the 1997 prescreening or-
der.
McConico appealed both the withdrawal of his complaint
and the district court’s order refusing to vacate the 1997 Prescreen-
ing Order, but both appeals were dismissed for want of prosecution
after McConico failed to pay filing fees.
In April 2022, McConico filed a motion for relief from judg-
ment under Federal Rules of Civil Procedure 60(b)(3), (4), (6) and
60(d)(3). He argued that the Clerk of Court prevented his family
from filing his lawsuit and then falsely claimed he had consented to
a magistrate judge presiding over the case. He contended that the
Clerk committed fraud because he never consented to the
USCA11 Case: 22-11954 Document: 25-1 Date Filed: 04/21/2023 Page: 8 of 9
8 Opinion of the Court 22-11954
magistrate judge, and without his consent, the magistrate judge
never had jurisdiction to make a finding regarding the statute of
limitations of his claims. McConico argued that the Clerk of Court
and the magistrate judge conspired to “change the narrative” to
provide the magistrate judge with subject matter jurisdiction using
“fraudulently implied consent.”
Judge Coogler denied the Rule 60 motion. He concluded
that there was no fraud or any other reason to void the judgment.
To the extent that McConico challenged the role of the magistrate
judge, Judge Coogler held that the magistrate judge properly exer-
cised his authority under
28 U.S.C. § 636 because the magistrate
judge’s rulings were reviewed and accepted by the district court.
And Judge Coogler rejected McConico’s challenges to the 1997 pre-
screening order, relying on Eleventh Circuit cases approving such
prescreening orders.
McConico timely filed a notice of appeal. The case was ini-
tially dismissed for want of prosecution, but it was reinstated after
McConico moved to set aside the dismissal.
Here, Judge Coogler did not abuse his discretion by denying
McConico’s Rule 60(b) motion. Aldana,
741 F.3d at 1355. Judge
Coogler did not err in rejecting McConico’s arguments based on
Rule 60(b)(3) and (6) because there was no fraud or other reason to
grant relief from the judgment. And Judge Coogler did not err in
rejecting McConico’s arguments under Rule 60(b)(4) because
McConico failed to show that there was a lack of jurisdiction or a
violation of due process. Burke, 252 F.3d at 1263. Contrary to
USCA11 Case: 22-11954 Document: 25-1 Date Filed: 04/21/2023 Page: 9 of 9
22-11954 Opinion of the Court 9
McConico’s suggestion, his consent to the magistrate judge’s ac-
tions in this case was not required. The magistrate judge’s actions
were reviewed by Judge Coogler who overruled McConico’s ob-
jections. And Judge Coogler enforced the 1997 prescreening order.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
