FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 23, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16633

Non-Argument Calendar

________________________

D. C. Docket Nos. 07-00025-CV-WLB-1, 05-13658-BKC-SD

IN RE: YULIN MA, 

Debtor. 

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JESSIE L.-S. AU, 

Plaintiff-Appellee, 

versus

YULIN MA, 

Plaintiff

Third Party Plaintiff 

Appellant, 

GUILLAUME M. WIENTJES, 

Plaintiff

Third Party Defendant

Appellee. 
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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(September 23, 2009)

Before BLACK, CARNES and FAY, Circuit Judges.

PER CURIAM:

Yulin Ma, proceeding pro se, appeals the district court’s order denying his

motion for a jury trial to alter or amend, his motion in limine, and his renewed

motion for reconsideration of its order dismissing his personal injury tort claims

against Jessie L.-S. Au and Guillaume M. Wientjes under 28 U.S.C. § 157(b)(5). 

The district court dismissed Ma’s claims under Fed.R.Civ.P. 41(b) after he failed

to comply with a magistrate judge’s order that required payment of expenses as a

result of his failure to meet his discovery obligations. The court found that, based

on Ma’s own testimony, he had sufficient funds to pay the award and that he did

not make a good-faith effort to work out a monthly payment plan. Ma did not

request any transcripts after filing his notice of appeal.

I.

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Ma contends that the district court abused its discretion by dismissing his

claims under Rule 41(b) because he did not have notice that his non-payment

could result in dismissal and he complied with the order by making a good-faith

effort to work out a monthly payment plan. He also contends that the court failed

to consider any lesser sanctions before dismissing his claims.

We review a dismissal under Fed.R.Civ.P. 41(b) only for an abuse of

discretion. Goforth v. Ownes, 766 F.2d 1533, 1535 (11th Cir. 1985). The district

court’s factual findings are reviewed only for clear error. Zocaras v. Castro, 465

F.3d 479, 483 (11th Cir. 2006). “A district court is authorized, on defendant’s

motion, to dismiss an action for failure to prosecute or to obey a court order or

federal rule.” Goforth, 766 F.2d at 1535. “Dismissal of a case with prejudice is

considered a sanction of last resort, applicable only in extreme circumstances.” Id. 

In reviewing a dismissal under Rule 41(b), we consider “whether there is a clear

record of delay or willful contempt and a finding that lesser sanctions would not

suffice.” Id. (quotation omitted). The district court’s finding regarding lesser

sanctions may be implicit or explicit. Gratton v. Great Am. Commc’ns, 178

F.3d 1373, 1374 (11th Cir. 1999). Mere negligence or confusion is not sufficient

to justify a finding of delay or willful misconduct. McKelvey v. AT & T Techs.,

Inc., 789 F.2d 1518, 1520 (11th Cir. 1986). Dismissal pursuant to Rule 41(b)

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“upon disregard of an order, especially where the litigant has been forewarned,

generally is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837

(11th Cir. 1989).

Under the Federal Rules of Appellate Procedure, an appellant has the duty

to order and file with the district court any necessary transcripts “[w]ithin [ten]

days after filing the notice of appeal or entry of an order disposing of the last

timely remaining motion of a type specified in [Fed.R.App.P.] 4(a)(4)(A),

whichever is later.” Fed.R.App.P. 10(b)(1). “If the appellant intends to urge on

appeal that a finding or conclusion is unsupported by the evidence or is contrary to

the evidence, the appellant must include in the record a transcript of all evidence

relevant to that finding or conclusion.” Fed.R.App.P. 10(b)(2). “[W]here a failure

to discharge th[is] burden prevents us from reviewing the district court’s decision

we ordinarily will affirm the judgment.” Selman v. Cobb County Sch. Dist., 449

F.3d 1320, 1333 (11th Cir. 2006).

Because Ma did not request a transcript of the hearing where he provided

testimony regarding his financial condition, we reject Ma’s challenges to the

district court’s findings based on the testimony presented at that hearing. In view

of those findings, the district court did not abuse its discretion by dismissing Ma’s

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claims under Rule 41(b) because Ma willfully failed to comply with the

magistrate’s order, and lesser sanctions would not suffice.

II.

Ma also contends that the district court erred by denying his renewed

motion for reconsideration of the magistrate’s order requiring his compliance with

his discovery obligations, his motion in limine to prohibit Au and Wientjes’s

counsel from further participating in the action, and his motion for a jury trial to

alter or amend the district court’s order of dismissal. He argues that their counsel

submitted false affidavits to the district court regarding his financial condition and

that the district court failed to consider the entire record.

We review the denial of a motion under Rule 59 for abuse of discretion. 

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.), cert. denied, 128 S.Ct. 660

(2007). The only grounds for granting a motion under Rule 59 are newly

discovered evidence or manifest errors of law or fact. Id. “[A] Rule 59(e) motion

[cannot be used] to relitigate old matters, raise argument or present evidence that

could have been raised prior to the entry of judgment.” Id. Any post-judgment

motion to alter or amend the judgment served within ten days after the entry of the

judgment, other than a motion to correct purely clerical errors, is within the scope

of Rule 59(e) regardless of its label. United States v. E. Air Lines, Inc., 792

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F.2d 1560, 1562 (11th Cir. 1986); Harcon v. Barge Co., Inc. v. D & G Boat

Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986).

Post-judgment motions filed more than ten days after the judgment may be

construed as filed under Fed.R.Civ.P. 60(b). Mahone v. Ray, 326

F.3d 1176, 1178 n.1 (11th Cir. 2003). “Rule 60(b) allows a party to seek relief

from a final judgment, and request reopening of his case, under a limited set of

circumstances including fraud, mistake, and newly discovered evidence.” 

Gonzalez v. Crosby, 545 U.S. 524, 528, 125 S.Ct. 2641, 2645-46, 162 L.Ed.2d 480

(2005). Thus, “Rule 60(b) may not be used to challenge mistakes of law which

could have been raised on direct appeal.” Am. Bankers Ins. Co. of Fla. v. Nw.

Nat. Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999). To prevail under

Rule 60(b)(3) based on fraud, “the moving party must prove by clear and

convincing evidence that the adverse party obtained the verdict through fraud,

misrepresentations, or other misconduct” and “that the conduct prevented [him]

from fully presenting his case.” Waddell v. Hendry County Sheriff’s Office, 329

F.3d 1300, 1309 (11th Cir. 2003).

The district court did not abuse its discretion by denying Ma’s

post-judgment motions because they were filed more than ten days after the

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judgment, attempted to relitigate issues previously decided by the district court,

and did not show that the judgment was obtained through fraud. 

III. 

After review of the record and consideration of the parties’ briefs, we

affirm.

AFFIRMED.

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