FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 12, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10656

Non-Argument Calendar

________________________

D. C. Docket No. 01-01416-CV-T-17-TBM

SOPHIA J. GIBBONS, 

Plaintiff-Appellant, 

versus 

REGINA TWIGG, 

LORETTA SCHWARTZ-NOBEL, 

RANDOM PUBLISHING OF CANADA, 

RANDOM PUBLISHING OF NEW YORK, 

VILLARD BOOKS, 

COLUMBIA PICTURES, 

TRI-STAR VIDEO, et al., 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (September 12, 2005)
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Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

Sophia J. Gibbons brings this case to us for the third time. In Gibbons v.

Twigg, No. 02-11252 (decided September 30, 2002) (11th Cir. 2002)

(unpublished) (Gibbbons I), we affirmed the district court’s dismissal of her claims

brought under 42 U.S.C. § 1983, and remanded the case for a determination of

whether the district court had diversity jurisdiction over her state law claims. 

On remand, Gibbons moved the court to recuse, asserting that it showed bias

and prejudice towards her as a result of “several highly questionable and

inconsistent rulings” entered against her during the course of the proceedings. The

court denied her motion. On June 17, 2003, the court dismissed her state law

claims for lack of diversity jurisdiction, finding that Regina Twigg, like Gibbons,

was a resident of Florida. The court based its decision on affidavits filed by Twigg

in which she indicated, among other things, that she had a Florida driver’s license

until 1999, when she obtained a Georgia license, but that she renewed her Florida

license on June 4, 2002. Gibbons appealed the court’s judgment, and we affirmed.

In Gibbons v. Twigg, No. 03-13618 (decided March 16, 2004) (11th Cir.

2004) (unpublished) (Gibbons II), we affirmed the district court’s decision

dismissing appellant’s state law claims, but instructed the court to correct the
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docket sheet entry to indicate that the dismissal was without prejudice.

On January 19, 2005, Gibbons moved the district court pursuant to Fla. R.

Civ. P. 1.540(b) to set aside the order of dismissal (that was before us in Gibbons

II). Because the Florida Rules of Civil Procedure do not apply in federal civil

cases and Gibbons was proceeding pro se, the court treated the motion as having

been filed pursuant to Fed. R. Civ. P. 60(b)(2) and (3). Those Rule 60(b)

provisions authorize the district court to relieve a party from the judgment entered

against it on grounds of newly discovered evidence or fraud and must be invoked

within one year after the judgment is rendered. The court denied Gibbons’s motion

as untimely. Gibbons now appeals, challenging that ruling and the court’s

previous denial of her motion to recuse. We review both rulings for abuse of

discretion.

Because Gibbons filed her motion to set aside the order of dismissal more

than one year after the district court entered its judgment, the motion was untimely

and the court did not abuse its discretion in denying it. 

As for the recusal issue, it is obvious that Gibbons could have raised that

issue in her appeal in Gibbons II, but she did not. Therefore, she has abandoned

her claim that the district court should have recused. See Martin, 289 F.2d at 416-

417 (disregarding argument made by appellant on second appeal when the
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argument could have been asserted in the first appeal); see also United States v.

Fiallo-Jacome, 874 F.2d 1479, 1482 (11th Cir. 1989) (holding that criminal

defendant waived his right to raise issues on his second appeal that could have

been raised during his first appeal). 

AFFIRMED.