[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-10091

Non-Argument Calendar

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D.C. Docket No. 9:16-cv-80538-KAM

WING KEI HO, 

 Plaintiff - Appellant,

versus

BANK OF AMERICA, 

 Defendant - Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(February 16, 2018)

Before MARCUS, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM: 

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Wing Ho, proceeding pro se, appeals the district court’s dismissal of his 

second amended complaint and the denial of his Federal Rule of Civil Procedure 

59(e) motion to alter or amend judgment. After careful review, we conclude that 

the district court failed to determine whether Ho’s motion satisfied Rule 59(e), and 

we therefore vacate the district court’s order and remand to the district court.

I. 

Ho filed a complaint against Bank of America (“BOA”) alleging that it had 

wrongfully foreclosed on his properties. BOA moved to dismiss the complaint. 

The district court granted the motion but permitted Ho leave to amend. Ho timely 

filed an amended complaint, alleging wrongful foreclosure along with state and 

federal statutory claims. BOA moved to dismiss the amended complaint. The 

district court granted the motion in part, dismissing Ho’s wrongful foreclosure 

claims for lack of subject matter jurisdiction. The district court dismissed the 

remaining claims without prejudice, giving Ho until October 4, 2016 to file a 

second amended complaint. 

On October 11, 2016, after the court’s deadline, Ho filed his second 

amended complaint.1

 BOA moved to dismiss the complaint for failure to comply 

with the district court’s deadline. Ho failed to respond. The district court granted 

BOA’s motion based on lack of subject matter jurisdiction because the second 

 1 The pleading was file stamped on October 11, but was not docketed until October 12. It

makes no difference to our analysis. 

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amended complaint was untimely, and Ho had failed to request an extension of 

time prior to the deadline or make a motion or a showing of excusable neglect. 

Ho moved to alter or amend the judgment under Federal Rule of Civil 

Procedure 59(e). In that motion, he explained that his second amended complaint 

had been untimely due to a hurricane watch and warning issued on October 4, the 

district court’s deadline. Further, Ho argued, the court was closed from October 5 

through October 10, which was Columbus Day. Therefore, according to Ho, 

October 11 was the first day on which he could file his second amended complaint. 

The district court denied Ho’s motion, finding that the hurricane watch “was 

issued on the last day of the deadline for the amended pleading” and that the court 

“was open for business” on October 4, so Ho “could have and should have acted in 

accordance with the Court’s order.” Doc. 33 at 2.2

 In any event, the court 

determined, it had “lost subject matter jurisdiction” over the matter. Id. 

Ho timely filed a notice of appeal, designating the dismissal of his second 

amended complaint and the denial of his Rule 59(e) motion. 

II. 

We review the denial of a Rule 59(e) motion for abuse of discretion. Drago 

v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). An abuse of discretion occurs if 

the district court fails to apply the proper legal standard or to follow proper 

 2 Citations to “Doc. #” refer to docket entries in the district court record in this case.

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procedures in making its determination. Mincey v. Head, 206 F.3d 1106, 1137 

n.69 (11th Cir. 2000). We construe pro se filings liberally. Lorisme v. I.N.S., 129 

F.3d 1441, 1444 n.3 (11th Cir. 1997).

Here, the district court did not consider Ho’s explanation of his late filing 

because it incorrectly determined that it had lost jurisdiction over Ho’s action. A

jurisdictional defect is one that “strip[s] the court of its power to act and ma[kes] 

its judgment void.” McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir. 2001) 

(alterations in original) (quoting Escareno v. Carl Nolte Sohne GmbH & Co., 77 

F.3d 407, 412 (11th Cir. 1996)). As the Supreme Court has noted, courts have 

often mislabeled timing restrictions as jurisdictional requirements:

Courts, including [the Supreme Court] . . . have more than 

occasionally used the term ‘jurisdictional’ to describe emphatic time 

prescriptions in rules of court . . . . For example, we have described 

Federal Rule of Civil Procedure 6(b), on time enlargement . . . as 

‘mandatory and jurisdictional.’ 

Kontrick v. Ryan, 540 U.S. 443, 454 (2004) (citation omitted). The Court went on 

to explain that unlike timing prescriptions, requirements are jurisdictional only if 

they “delineat[e] the classes of cases (subject-matter jurisdiction) and the persons 

(personal jurisdiction) falling within a court’s adjudicatory authority.” Id. at 455.

Here, the court concluded that it was forced to deny Ho’s motion because it

had “lost subject matter jurisdiction over this matter.” Doc. 33 at 2. Therefore, 

according to the district court, the “case [could not] proceed.” Id. But the district 

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court could have exercised its discretion to allow Ho’s belated filing. Indeed, 

Federal Rule of Civil Procedure 6(b) sets forth specific factors for district courts to 

consider when deciding whether to accept a late filing. Thus, the lapsed deadline 

did not “strip[] the court of its power to act,” and the missed filing deadline did not 

result in a jurisdictional defect. Escareno, 77 F.3d at 412. 

Given the district court’s erroneous legal determination that the missed 

deadline deprived it of jurisdiction over Ho’s case, the court failed to consider 

Ho’s explanation for his late filing. The district court therefore abused its 

discretion. 

III.

For the foregoing reasons, the district court’s order denying Ho’s Rule 59(e) 

motion is vacated and remanded.

VACATED AND REMANDED.

 

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