RULE 60 | RELIEF FROM A JUDGMENT OR ORDER

"To summarize, in motions for a new trial under the misconduct prong of Rule 60(b)(3), the movant must show the opponent's misconduct by clear and convincing evidence. Next, the moving party must show that the misconduct substantially interfered with its ability fully and fairly to prepare for, and proceed at, trial. This burden may be shouldered either by establishing the material's likely worth as trial evidence or by elucidating its value as a tool for obtaining meaningful discovery. The burden can also be met by presumption or inference, if the movant can successfully demonstrate that the misconduct was knowing or deliberate. Once a presumption of substantial interference arises, it can alone carry the day, unless defeated by a clear and convincing demonstration that the consequences of the misconduct were nugacious. Alternatively, if unaided by a presumption — that is, if the movant is unable to prove that the misconduct was knowing or deliberate — it may still prevail as long as it proves by a preponderance of the evidence that the nondisclosure worked some substantial interference with the full and fair preparation or presentation of the case."

"Whether a motion is characterized as a Rule 59 or a Rule 60 motion is critical because a Rule 59 motion tolls the running of the time for appeal, while a Rule 60 motion does not affect the finality of a judgment or suspend its operation for purposes of appeal."

¹ This Court had jurisdiction to vacate the First Order of Dismissal. See Doc. 30 at 2. Indeed, where a timely Rule 60 motion is filed before a notice of appeal, the appeal is suspended pending a ruling on the motion See id.; see also Fed. R. App. P. 4(a)(4); Bussey-Morice v. Kennedy, No. 6:11-cv-970-Orl-41GJK, 2015 WL 12089720, at *4 n.4 (M.D. Fla. May 13, 2015); cf. Stansell v. Revolutionary Armed Forces of Colombia, 771 F.3d 713 (11th Cir. 2014).

Appellant also claims that the district court's award of back pay to the plaintiffs is erroneous as a matter of law. This assertion is raised as part of the Brotherhood's appeal from the district court's denial of its motion to vacate under Rule 60(b). See No. 80-7965. It is well settled that "an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review." Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 52 (1968). See Saenz v. Kennedy, 178 F.2d 417, 419 (5th Cir. 1949). An appellant may attack the underlying judgment only on direct appeal from the judgment itself. Here, the Brotherhood does not argue in its direct appeal from judgment that the district court erred in awarding back pay to the appellees. See No. 80-7846. The claim is therefore abandoned. Fed.R.App.P. 28(a)(4); Harris v. Plastics Manufacturing Co., 617 F.2d 438, 440 (5th Cir. 1980); Davis v. Hill Engineering, Inc., 549 F.2d 314, 324 (5th Cir. 1977).

A judgment can be set aside for voidness where the court lacked jurisdiction or where the movant was denied due process. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271, 130 S.Ct. 1367, 1377, 176 L.Ed.2d 158 (2010). This includes lack of personal jurisdiction and defective due process for failure to effect proper service. Worldwide Web, 328 F.3d at 1299. Herrera is correct to point out that a motion to set aside a judgment for voidness pursuant to Federal Rule of Civil Procedure 60(b)(4) is not subject to a typical laches analysis.

Although we review a district court's Rule 60(b)(4) motion for abuse of discretion, insufficient service of process under Rule 60(b)(4) implicates personal jurisdiction and due process concerns. Generally, where service of process is insufficient, the court has no power to render judgment and the judgment is void. See Varnes v. Local 91, Glass Bottle Blowers Ass'n, 674 F.2d 1365, 1368 (11th Cir. 1982) (finding a judgment void under Rule 60(b)(4) where the defendant was not properly served); see also Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) ("An elementary and fundamental requirement of due process in any proceeding ... accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the... action and [to] afford them an opportunity to present their objections." (citations omitted)).