Henry McCone v. Exela Technologies, Inc., et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13517
Non-Argument Calendar
____________________
HENRY MCCONE,
Plaintiff-Appellant,
versus
EXELA TECHNOLOGIES, INC.,
EXELA ENTERPRISE SOLUTIONS, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-00912-CEM-DCI
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2 Opinion of the Court 23-13517
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Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Henry McCone, proceeding pro se, appeals the district
court’s denial of his Rule 59(e) motion to alter or amend the judg-
ment and for reconsideration.1
Where appropriate, we review the district court’s denial of
a Rule 59(e) motion for an abuse of discretion. Lambert v. Fulton
Cnty., Ga., 253 F.3d 588, 598 (11th Cir. 2001). Under Rule 59, a
party may ask a district court to reconsider an earlier ruling. See
Fed. R. Civ. P. 59(e). A Rule 59(e) motion must be based upon
“newly-discovered evidence or manifest errors of law or fact.” Ar-
thur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quotation marks
omitted). It may not be used to relitigate old matters or raise argu-
ments or present evidence that could have been raised prior to the
initial entry of judgment. Id.
While pro se pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will be liberally construed,
1 On March 12, 2024, we dismissed the portion of McCone’s appeal challenging
the district court’s order and final judgment granting summary judgment
against him for lack of jurisdiction because his motion to reconsider was filed
more than 28 days after the final order and judgment was entered. Thus, the
motion did not toll the 30-day statutory time limit for filing a notice of appeal.
We therefore proceed with his appeal only insofar as it relates to the denial of
his motion for reconsideration, which was timely.
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23-13517 Opinion of the Court 3
a court may not “serve as de facto counsel for a party [or] rewrite an
otherwise deficient pleading in order to sustain an action.” Camp-
bell v. Air Jam. Ltd., 760 F.3d 1165, 1168 69 (11th Cir. 2014). “[I]ssues
not briefed on appeal by a pro se litigant are deemed abandoned.”
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). An appellant
fails to adequately brief a claim when he does not “plainly and
prominently raise it,” such as by making only passing references to
the court’s holding without advancing any arguments or citing any
authorities to establish that they were error. Sapuppo v. Allstate Flo-
ridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (quotation marks
omitted). A party abandons a claim by: (1) making only passing
reference to it, (2) raising it in a perfunctory manner without sup-
porting arguments and authority, (3) referring to it only in the
“statement of the case” or “summary of the argument,” or (4) the
references to the issue are mere background to the appellant’s main
arguments. Id. at 681-82.
Here, McCone has abandoned any purported challenge to
the district court’s denial of his motion to alter or amend the judg-
ment and for reconsideration by failing to make any meaningful
argument as to the motion on appeal. Timson, 518 F.3d at 874.
McCone’s brief is essentially a disagreement with the district
court’s determination as to the merits of his alleged discrimination
and retaliation claims, which go to the final order and judgment of
his case, and over which we lack jurisdiction and accordingly have
already dismissed. While the first issue asserted in McCone’s
“statement of the issues” section of his brief is whether the district
court abused its discretion in denying his motion, that is the only
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4 Opinion of the Court 23-13517
place in his brief the motion or the abuse of discretion standard are
so much as mentioned. Such is not enough to preserve an argu-
ment on appeal. See Sapuppo, 739 F.3d at 681-82.
AFFIRMED.2
2 McCone’s motion for reconsideration of our March 12, 2024, order sua sponte
dismissing his appeal, in part, for lack of jurisdiction is also DENIED. See Fed.
R. App. P. 4(a)(1)(A); Advanced Bodycare Sols., LLC v. Thione Int’l, Inc., 615 F.3d
1352, 1359 n.15 (11th Cir. 2010).
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