USCA11 Case: 22-13823 Document: 47-1 Date Filed: 06/27/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13823
Non-Argument Calendar
____________________
KEITH FERNANDEZ,
Plaintiff-Appellant,
versus
FREEDOM HEALTH, INC.,
OPTIMUM HEALTHCARE, INC.,
PHYSICIAN PARTNERS, LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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2 Opinion of the Court 22-13823
D.C. Docket No. 8:18-cv-01959-MSS-JSS
____________________
Before GRANT, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
I.
In August 2018, Keith Fernandez filed a qui tam suit against
three medical services companies under the False Claims Act. For
purposes of this appeal, what he claimed is far less important than
when he filed his pleadings.
After the initial complaint, Fernandez requested and
received at least three extensions of time to respond to various
motions and file reports. Then, in May 2021, the court dismissed
his complaint for failing to plead with sufficient particularity. To
fix these defects, the court granted Fernandez an extension:
twenty-one days to amend his complaint. That gave him until June
16, 2021. On June 16, however, he requested another extension
until July 14, which the court granted.
July 14 came and went with no further action from
Fernandez. Two days later, he moved for a third extension of time
to file the complaint, which the court denied because he had not
explained why the extension was necessary. Over a month later,
Fernandez moved again, this time citing communication
difficulties as the justification. The court granted the motion,
emphasizing that its order represented “one final opportunity to
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22-13823 Opinion of the Court 3
file an Amended Complaint” by September 20, 2021. “No further
extensions will be granted,” the court added.
That statement proved premature. Instead of filing the
complaint on September 20, 2021, Fernandez filed a motion to stay
the case, which the court granted a few months later. In
conjunction with the stay, it gave him fourteen days to file his
amended complaint, which resulted in a new deadline of April 19,
2022. On that date, Fernandez filed yet another request for an
extension of time, but he also—finally—included his amended
complaint as well. Almost one year had passed since the original
amended complaint deadline.
About four months later, the court dismissed Fernandez’s
amended complaint for failure to “demonstrate due diligence and
just cause for delay” related to proceedings after he filed the
amended complaint. The dismissal was with prejudice, the court
explained, because Fernandez had “engaged in a clear pattern of
delay or willful contempt” and “lesser sanctions would not suffice.”
He then appealed this dismissal and the court’s denial of his motion
to reconsider.
II.
We review jurisdictional questions and the dismissal of a
complaint de novo. Auto. Alignment & Body Serv., Inc. v. State Farm
Mut. Auto. Ins. Co.,
953 F.3d 707, 719 (11th Cir. 2020). We review
the denial of a motion for reconsideration for abuse of discretion.
Id.
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4 Opinion of the Court 22-13823
III.
“The timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.” Green v. Drug Enf’t Admin.,
606 F.3d
1296, 1300 (11th Cir. 2010) (quotation omitted and alteration
adopted). To be timely, a notice of appeal in a civil proceeding
“must be filed with the district clerk within 30 days after entry of
the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A).
Given the history of this case, it may be unsurprising that
Fernandez failed to timely file a proper notice of appeal. But the
path to our holding is not intuitive. Fernandez did appeal the
court’s latest dismissal within the required period. But we do not
have jurisdiction to evaluate his appeal because he failed to timely
appeal or set aside a much earlier district court order that became
the final judgment in his case: the May 2021 dismissal.
Our recent holding in Automotive Alignment all but decides
this case.
953 F.3d 707. There the district court had dismissed
plaintiffs’ complaints without prejudice “with leave to amend
within a specified time” but some plaintiffs “missed the deadline to
amend without ever seeking an extension of time.”
Id. at 716, 720.
This Court reiterated that “an order dismissing a complaint with
leave to amend within a specified time becomes a final judgment if
the time allowed for amendment expires without the plaintiff
seeking an extension.”
Id. at 719–20; see Hertz Corp. v. Alamo Rent-
A-Car, Inc.,
16 F.3d 1126, 1132–33 (11th Cir. 1994). And so “the
orders of dismissal became final judgments when the deadline to
amend expired” and because they were never appealed, this Court
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22-13823 Opinion of the Court 5
lacked jurisdiction to decide the merits of the later orders that were
appealed. Auto. Alignment, 953 F.3d at 719–20.
That is almost exactly what happened here. The court
dismissed Fernandez’s complaint on May 26, 2021 and gave leave
to amend until June 16. On June 16, Fernandez moved for more
time, and the court extended the deadline until July 14. But
Fernandez did not file his complaint before this deadline. Nor did
he ask for more time until it had already passed. The court’s May
26, 2021 dismissal thus became a final judgment on July 14, 2021.
It makes no difference that the case continued after the final
judgment. When the judgment became final, the district court
“surrendered jurisdiction” and its orders entered “after that time
were a nullity and must be vacated.” Id. at 720 (quotations
omitted).
Despite that final judgment, Fernandez still had three
options. “The only recourse for a plaintiff who seeks to set aside
the final judgment is to appeal, Fed. R. App. P. 3, move to alter or
amend the judgment, Fed. R. Civ. P. 59(e), or move for relief from
the final judgment, Fed. R. Civ. P. 60(b).” Id. In Automotive
Alignment, we clarified that relief under Federal Rule of Procedure
6(b)(1)(B) was not an option. Even though it allows for past
deadlines to be extended, Rule 6(b)(1)(B) “does not allow a district
court to extend the time for a party to act after it has entered a final
judgment.” Id. at 720. Thus, even if the court’s orders here were
grounded in Rule 6(b)(1)(B)—which they never mention—they
could not alter the final judgment.
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6 Opinion of the Court 22-13823
The only way for Fernandez to negate that final judgment
was to appeal that order—which he did not—or for the court to
grant one or more Rule 59(e) or Rule 60(b) motions. A Rule 59(e)
motion, for example, requests that the court alter or amend a
judgment. Fed. R. Civ. P. 59(e). And a Rule 60(b) motion asks for
relief from a final judgment. Fed. R. Civ. P 60(b). Although none
of the motions or orders here references Rule 59 or 60, the court in
Automotive Alignment raised the possibility that deadline extensions
could still qualify under those rules. 953 F.3d at 722. But ultimately
it did not consider whether it should “construe the grant of relief
under Rule 6(b)(1)(B) as granting a postjudgment motion under
Rules 59(e) or 60(b)” because the parties affirmatively waived that
argument. Id.
On this record, we cannot construe Fernandez’s motions
and the court’s orders in a way that rescues this appeal. No motion
references Rule 59 or 60, and no order grants relief under those
rules. Of course, we look to “functions rather than labels” when
construing motions. Hertz Corp.,
16 F.3d at 1131. But a functional
lens is not enough here.
Assume, for a moment, that we could construe both
Fernandez’s July 16, 2021 and August 29, 2021 motions as timely
motions to amend, alter, or relieve him of judgment under Rule
59(e) or Rule 60(b). Then the new court-ordered deadline to file
the amended complaint would have been September 20, 2021. But
Fernandez did not file his complaint or ask for an extension on that
date; he moved to stay the case instead. We cannot construe this
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22-13823 Opinion of the Court 7
motion to stay (or the court’s later order granting it) as working
under Rule 59(e) or Rule 60(b). Unlike his motions for
extensions—which at least arguably functioned as requests to
change the specific due date set out in the May 26 order—the stay
motion in no way asked for a change to or relief from the specific
final judgment.
So, at the very latest, the judgment became final (again)
when the time to amend expired on September 20, 2021, and the
district court “surrendered jurisdiction” on that date. Auto.
Alignment, 953 F.3d at 720 (quotation omitted). Yet Fernandez
appealed over one year later, on November 10, 2022, and never
appealed the May 2021 dismissal. Even assuming that the court’s
extensions somehow reopened the judgment or pushed out
Fernandez’s time to appeal, he never appealed the “operative final
judgment[]” in this case, and he could not do so because “the
deadline to appeal ha[d] expired.” 1 Id. at 722. The orders on appeal
are thus “a nullity” and we cannot review them. See id. at 720.
1 The time to appeal “is measured from the date on which the district court
order of dismissal becomes final.” Schuurman v. Motor Vessel Betty K V,
798 F.2d
442, 445 (11th Cir. 1986). We need not decide whether the judgment was
required to be set out in a separate order to be considered entered and begin
the clock to appeal. See Fed. R. Civ. P. 58; Fed. R. App. P. 4(a)(7). Even if it
were, 150 days after the entry of the dismissal order, the thirty-day appeal
window would begin to run, meaning the time to appeal the operative final
judgment expired long before Fernandez appealed the later order. See
id.
None of Rule 4’s other parts could have extended Fernandez’s appeal time by
a full year. No Rule 4(a)(5) motion to extend the time to appeal was filed. And
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8 Opinion of the Court 22-13823
* * *
Because the court surrendered jurisdiction in September
2021 at the latest, we VACATE the district court orders dismissing
the amended complaint and denying reconsideration and
REMAND for proceedings consistent with this opinion.
nothing suggests that the district court reopened the time to file an appeal
under Rule 4(a)(6).
