USCA11 Case: 22-13043 Document: 38-1 Date Filed: 08/18/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13043
Non-Argument Calendar
____________________
THE ESTATE OF SAMUEL I. ROIG,
by and through its Personal Representative Gail Olivera,
KYLE ROIG,
an individual,
SAM ROIG,
an individual,
GAIL OLIVERA,
an individual,
Plaintiffs-Appellants,
versus
UNITED PARCEL SERVICE, INC.,
a business entity,
THOMAS O'MALLEY,
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2 Opinion of the Court 22-13043
an individual,
ROMAINE SEGUIN,
an individual,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-60811-AMC
____________________
Before WILLIAM PRYOR, Chief Judge, and LAGOA and BRASHER, Cir-
cuit Judges.
PER CURIAM:
Gail Olivera, individually and on behalf of the estate of Sam-
uel Roig, and Roig’s children, Kyle and Sam, appeal the denial of
their motion to vacate the final judgment, Fed. R. Civ. P. 60(b)(4),
against their complaint of employment discrimination and tortious
conduct under Florida law. We affirm.
In 2018, the Roigs, citizens of Florida, sued United Parcel
Service, an Ohio corporation with its principal place of business in
Georgia, and Thomas O’Malley, a Florida citizen, in a Florida
court. United and O’Malley removed the case to the district court,
28 U.S.C. § 1332, and argued that the Roigs fraudulently joined
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22-13043 Opinion of the Court 3
O’Malley to defeat diversity jurisdiction. The Roigs voluntarily dis-
missed their complaint without prejudice. Seven months later, the
Roigs unsuccessfully tried to amend their original complaint in
state court by adding United manager Juan Vicente as a defendant,
but the state court struck the complaint.
In 2020, the Roigs filed a second lawsuit in state court against
United and O’Malley and added United employee Romaine Seguin
as a non-diverse defendant. The defendants removed the second
lawsuit to the district court and argued that the Roigs fraudulently
joined defendants O’Malley and Seguin to defeat diversity jurisdic-
tion. The Roigs moved to remand.
A magistrate judge issued a report and recommendation
that the district court deny the motion to remand because O’Mal-
ley and Seguin were fraudulently joined as defendants. The district
court adopted the report and recommendation over the Roigs’ ob-
jections and denied their motion to remand. Because the denial of
a motion to remand is not an appealable final order,
28 U.S.C.
§ 1291, we dismissed the Roigs’ appeal from that order for lack of
jurisdiction.
The Roigs moved the district court to enter a “consent final
judgment” to create an appealable final order so they could chal-
lenge the denial of their motion to remand. The district court
warned the Roigs that, under Druhan v. Am. Mut. Life,
166 F.3d 1324
(11th Cir. 1999), they would not be able to appeal the denial of their
motion to remand after requesting a consent judgment. The Roigs
and United later submitted a joint proposed judgment for dismissal
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4 Opinion of the Court 22-13043
with prejudice. The district court entered the proposed judgment
as requested. We dismissed the Roigs’ appeal for lack of jurisdiction
because they lacked standing to appeal the final judgment they re-
quested. Roig v. United Parcel Serv., Inc., No. 21-11915, at *1 (11th
Cir. Sept. 1, 2021), cert. denied sub nom. Est. of Roig by & Through
Oliveira v. United Parcel Serv., Inc.,
142 S. Ct. 2679 (2022).
Seven months later, the Roigs filed a “motion for relief from
final judgment and to remand to state court,” under Fed. R. Civ. P.
60(b)(4). They argued that the district court lacked an arguable ba-
sis for subject-matter jurisdiction because their complaint stated
valid claims against O’Malley and Seguin. The district court denied
the Roigs’ motion.
We review the denial of a motion under Federal Rule of
Civil Procedure 60(b)(4) de novo. Burke v. Smith,
252 F.3d 1260, 1263
(11th Cir. 2001). Rule 60(b)(4) allows a party to seek relief from a
final judgment that “is void,” but only in the “rare instance where
a judgment is premised either on a certain type of jurisdictional er-
ror or on a violation of due process that deprives a party of notice
or the opportunity to be heard.” United Student Aid Funds, Inc. v.
Espinosa,
559 U.S. 260, 270–71 (2010). So “courts considering Rule
60(b)(4) motions that assert a judgment is void because of a juris-
dictional defect generally have reserved relief only for the excep-
tional case in which the court that rendered judgment lacked even
an ‘arguable basis’ for jurisdiction.”
Id. at 271.
The Roigs argue that the final judgment is premised on a
“jurisdictional error” by the district court in denying their motion
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22-13043 Opinion of the Court 5
to remand, but they fail to explain how the district court lacked an
“arguable basis” for exercising jurisdiction. See
id. We have held
district courts must “ignore the presence of [a] non-diverse defend-
ant and deny any motion to remand” if a plaintiff has named a
non-diverse defendant solely to defeat diversity jurisdiction. Still-
well v. Allstate Ins. Co.,
663 F.3d 1329, 1332 (11th Cir. 2011). This
inquiry enforces a jurisdictional statute,
28 U.S.C. § 1332, the erro-
neous application of which will not render a resulting judgment
void. Espinosa,
559 U.S. at 270; Oakes v. Horizon Fin., S.A.,
259 F.3d
1315, 1319 (11th Cir. 2001) (“[I]t is well-settled that a mere error in
the exercise of jurisdiction does not support relief under Rule
60(b)(4).”). Relief under Rule 60(b)(4) requires a total want of juris-
diction; only a clear usurpation of power renders a judgment void.
See Oakes,
259 F.3d at 1319–20 (citing United States v. Boch Oldsmo-
bile, Inc.,
909 F.2d 657, 661–62 (1st Cir. 1990)). Because the district
court had at least an “arguable basis” for jurisdiction, the Roigs
failed to establish the “rare instance” in which “exceptional” relief
is warranted, Fed. R. Civ. P. 60(b)(4). Espinosa,
559 U.S. at 270–71;
Oakes,
259 F.3d at 1319–20.
We AFFIRM the denial of the Roigs’ motion for relief from
the final judgment and DENY their motion to vacate as moot.
